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T.B., A Minor, By and Through His Guardian v. San Diego Unified School District

March 30, 2011

T.B., A MINOR, BY AND THROUGH HIS GUARDIAN
AD LITEM, ALLISON BRENNEISE, AND ROBERT BRENNEISE,
PLAINTIFFS,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT, DEFENDANT.
SAN DIEGO UNIFIED SCHOOL DISTRICT, PLAINTIFF,
v.
BRENNEISE, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

[Consolidated Action]

ORDER DENYING MOTION FOR AWARD OF COMPENSATORY EDUCATION AND DENYING MOTION FOR ENTRY OF PARTIAL FINAL JUDGMENT [Doc. No. 119]

This action arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., which permits judicial review of an Administrative Law Judge's ("ALJ") decision in the Office of Administrative Hearings.*fn1 Currently before the Court are two motions (filed together as Doc. No. 119) by T.B., a minor, and his parents Allison and Robert Brenneise. In the first motion, the Brenneises ask for an award of 440 hours of compensatory education services by a credentialed special education teacher to remedy the San Diego Unified School District's ("School District") violation of the IDEA for the 2006-2007 school year. Their second motion asks for entry of a partial final judgment. Fed. R. Civ. P. 54(b). The School District opposes both motions. The Court found the motions suitable for decision without oral argument. For the following reasons, the Court DENIES both motions.

I. BACKGROUND

This case has a lengthy, technically complicated, and contentious history. The Court therefore summarizes the facts relevant to the pending motions below.

T.B. has received special education services since he began school in 2000 because he has autism and late-diagnosed Phenylketonouria, a condition that caused brain damage and requires T.B. to receive essential nutrients through a gastrostomy tube ("G-tube feedings"). The School District is required to provide T.B. with a "free and appropriate education" ("FAPE"). Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993) (quoting 20 U.S.C. § 1400(c)). The "individualized education program" ("IEP") document describes the educational and support services that a student will receive to meet his FAPE special educational needs and goals. Id.; 20 U.S.C. § 1414(d).

Since 2003 T.B. was in a home program, which his mother called "garage school." Thereafter, the parties could not agree on an IEP for the following three school years, so Mrs. Brenneise taught her son, to the best of her ability, from 2003 to 2006; Mrs. Brenneise is not a credentialed teacher. The School District provided a broad range of assistance (e.g., by hiring behavioral aides and a variety of other support services). The parties settled their disputes about those three school years in a confidential settlement agreement.

In July 2006, the parties agreed to an extended school year ("ESY") summer placement at Coronado Academy. AR 3351-3392 (hereinafter "ESY IEP July 2006"). This is the last time the parties mutually agreed to an IEP for T.B. One element of the 2006 placement provided that T.B. receive 20 hours per week in a "Non Severe Special Day Class." Id. In addition to this academic component, the School District continued to provide a wide-range of support services to T.B. The summer program, however, was scheduled to end in July and school was not in session in August. In addition, the Coronado Academy was not in compliance with California law at the time because

T.B's two teachers did not have the necessary credentials.*fn2 In a separate proceeding, the California Department of Education awarded T.B. 24 hours of compensatory language arts education to remedy his time at summer school without a properly credentialed instructor. E.g., AR 5378-79.

The parties anticipated that T.B. might not succeed in the summer placement and they also recognized that their difficult relationship might prevent them from agreeing on an IEP for the regular school year that would commence in September 2006. Accordingly, they included a contingency agreement in the July 2006 IEP that the "stay put" placement would be the home program.*fn3 AR 3391 ("if there is no agreement on [T.B.'s] 2006-2007 IEP as to school placement, then [his] Home Program shall continue until such time [Mrs. Brenneise] consents to the implementation of an IEP for the 2006-2007-IEP."); ALJ Decision at 54 (FF ¶ 242).

The contingency was triggered when the Coronado Academy asked T.B. to leave after five days, and, as predicted, the parties were unable to agree on an appropriate placement for the 2006-2007 school year. ALJ Decision at 24 (FF ¶ 104). Thus, T.B. remained at home with his mother for the rest of the summer and the next school year.

The parties expressly agreed to the services that would be provided in the "Home Program" until a new IEP was signed. AR 3391. These included various behavioral aids and special services (such as speech and occupational therapy), but expressly excluded the 20 hours per week of "Special Day Class" services. AR 3387 & 3391. In sum, the parties agreed to a home program that did not expressly provide for a credentialed teacher.*fn4

Both parties pursued their administrative remedies on a broad range of issues, and on October 3, 2007, the ALJ issued a lengthy decision. The School District prevailed on most issues but the Brenneises prevailed on three. ALJ Decision at 75. In a June 2010 Order, this Court affirmed the ALJ's conclusions that the School District denied T.B. a FAPE for the 2006-2007 school year (1) by failing to provide a nurse to assist T.B. with his G-tube feedings and (2) by denying the parents the right to participate in the plan to transition T.B. gradually from the home-based program into public school. [Doc. No. 118] Except for a request for attorney's fees and declaratory relief, the June 2010 Order resolved the School District's own IDEA complaint. The Brenneises' claims remain unresolved. In their Second Amended Complaint ("SAC"), they seek judicial review of fifteen of the eighteen issues delineated in the ALJ's Decision and they request attorney's fees. SAC ¶¶ 24, 26 & 28-32. They also allege causes of action that arise out of the same facts, but are based on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131. SAC ¶¶ 33-62. The Brenneises now move for an award of compensatory education to remedy the IDEA violation that this Court affirmed, and to enter partial final judgment to that extent. The Brenneises intend to pursue their other causes of action, but suggest that they may drop some or all of their IDEA issues if the Court awards T.B. compensatory education services.

II. MOTION FOR AN AWARD OF COMPENSATORY EDUCATION*fn5

As noted, the Court agreed with the ALJ that T.B. was denied a FAPE for the 2006-2007 school year. The proposed IEP failed to provide a qualified health care worker to assist T.B. with his G-tube feedings. The IEP also violated IDEA because Mrs. Brenneise was not permitted to participate in the decision-making process about T.B.'s transition ...


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