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Ka.D. v. Solana Beach School District

July 23, 2010

KA.D., A MINOR, BY HER MOTHER, KY.D., AS HER NEXT FRIEND; KY.D. AND B.D., PLAINTIFFS / COUNTER DEFENDANTS,
v.
SOLANA BEACH SCHOOL DISTRICT AND MARY ELLEN ADMINISTRATIVE NEST, DEFENDANTS / COUNTER CLAIMANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER:

1) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 28.)

2) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 29.)

3) AFFIRMING THE DECISION OF THE OFFICE OF HEARINGS IN ITS ENTIRETY

On August 13, 2008, Plaintiffs filed their First Amended Complaint, alleging a violation of the Individuals with Disabilities Education Act ("IDEA") 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794 and each statute's implementing regulations. (Doc. No. 10.)

Pending now before the Court are the parties' cross-motions for summary judgment. The parties have recently elected not to present additional evidence to the Court (See Doc. Nos. 46, 47), and thus, the Court will decide the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1) And for the reasons stated below, the Court DENIES both motions and AFFIRMS the decision of the Administrative Law Judge ("ALJ").

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Ky.D and B.D. are the parents of Ka.D ("Student"). Student was born April 24, 2003, making her now seven years old. Defendant Solana Beach School District (the "District") is a public school district responsible for providing children eligible for special education who reside within its jurisdiction with a Free Appropriate Public Education ("FAPE"), as required under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq. and the implementing provisions of the California Education Code (Cal. Educ. Code, § 56320). At all times relevant to the allegations of this case, Student resided with her parents within the District's boundaries.

Student was diagnosed with autism when she was approximately two years old. (Doc. 29, Exh A "ALJ's Decision" pg 5--6, ¶ ¶ 2, 3.)*fn1 That diagnosis eventually made her eligible for special education and related services. In preparation for Student's transition to the District's educational services, the District conducted an assessment of Student's psycho-motor deve lopment/perceptual function, language/speech/communication development, cognitive functioning, social/emotional adaptive behavior, and health. (Id. at pg 6--7, ¶ 7.) An educational therapy provider, named Coyne and Associates ("Coyne") also conducted its own psychological assessment of Student around the same time. (Id.)

Student's initial Individual Education Program ("IEP") meeting with the District occurred on March 31, 2006. (Id. at pg 7, ¶ 8.) As a result of Student's assessments, the District offered Student placement for the 2006-2007 school year, all provided at a District school. (Id. at pg 7, ¶ 9.) Student's parents did not agree with the District's proposal and settled the dispute via a confidential settlement. (Id. at pg 8, ¶ 10.) As a result of that settlement, Student received services from Coyne and the Hanna Fenichel preschool ("Hanna Fenichel") for 2006-2007. (Id. at pg 7, ¶ 10.)

After signing the settlement agreement, Student's parents had minimal contact with the District until February 16, 2007, when Student's IEP team first met to begin the process of formulating her IEP for the 2007-2008 school year. (Id. at pg 8, ¶ 11.) The IEP team also met in May and June. The resulting offer made to the Student by the District instigated further proceedings, and ultimately, this litigation.

First, the case was scheduled for a due process hearing, which commenced October 29, 2007. (Id.) The hearing lasted eleven days and was presided over by the Administrative Law Judge for the Office of Administrative Hearings, Special Education Division, the Honorable Darrell Lepkowsky (the "ALJ" or "Judge Lepkowsky").

The issues presented at the hearing were listed as:

1. Whether the District denied a free appropriate public education (FAPE) to Student for the 2007-2008 school year and 2008 extended school year by:

A. Predetermining its offer of placement and related services.

B. Failing to consider all relevant data concerning Student, including input from her parents, before making an offer of placement and related services.

C. Failing to offer an applied behavior analysis (ABA) therapy program that meets Student's unique needs because it is not scientifically based and supported by peer-reviewed research, to the extent practicable, is not offered in a home environment, and fails to provide a sufficient amount of therapy hours.

D. Offering a placement for a portion of Student's school day in a special day class that does not incorporate adequate ABA principles, fails to include peers with compatible instructional needs, and which is not the least restrictive environment for Student.

E. Offering a placement in a District general education classroom for a portion of Student's day that is an appropriate instructional setting for her and whose addition to Student's program creates a school day that includes too many transitions between classroom settings.

F. Failing to provide staff capable of implementing the individualized educational plan (IEP) offered by the District.

2. Are the District's assessments of Student with regard to her educational placement appropriate and, if not, is Student entitled to reimbursement from the District for the independent assessment conducted by Caroline Bailey?

(Id. at pg 2--3.)

On January 7, 2008, Judge Lepkowsky issued a forty-seven page opinion. (Id. at 47.) The District prevailed on Issues 1(A), 1(B), 1(C), 1(F), and Issue 2. The District also minimally prevailed on Issue 1(D). Student substantially prevailed on Issue 1(D) and fully prevailed on Issue 1(E). The ALJ also ordered the District to pay $6,100 to Student's parents to reimburse them for the tuition they had paid to Hanna Fenichel. (Id. at pg 45--46.)

In response, Plaintiffs filed this lawsuit to seek reversal of the ALJ's decision. The District then filed a counter-claim. At the Early Neutral Evaluation Conference, Magistrate Judge Porter ordered the parties to file "motions for summary judgment" if the case was unable to settle. (Doc. 25.)*fn2 Ultimately, the parties filed the instant cross-motions for summary judgment. (Docs. 28, 29.)

Having thoroughly reviewed the parties pleadings, and the Administrative Record, this Court requested further briefing from the parties. (Doc. 45.) Both parties filed the requested briefing, indicating that they did not wish to present additional evidence or require a court hearing. (Docs. 46, 47.) As such, the Court is ...


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