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T.B., A Minor, By and Through His Guardian Ad Litem, Allison Brenneise, and Robert Brenneise v. San Diego Unified School District

May 8, 2012


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


[Consolidated Action]

Currently before the Court are cross-motions for summary judgment on the remaining causes of action in this special education case. The Court found the motions suitable for decision without oral argument. Local Civ. R. 7.1(d)(1). In previous orders, the Court resolved the issues based upon the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq.; however, the Brenneises (mother, father, and son) also allege that the San Diego Unified School District ("School District") violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. The Brenneises seek money damages for the alleged discrimination against their disabled son (T.B.), failure to implement the administrative decision, and retaliation against the mother's aggressive advocacy. [Second Am. Compl. ("SAC") ¶¶ 33-5, 58-62.] Although the School District raises several issues in its motion, the Court addresses only the mens rea element because it resolves the remaining Rehabilitation Act and ADA claims in their entirety. The Brenneises fail to present evidence that the School District acted with the requisite intent; therefore, the Court GRANTS the School District's motion for summary judgment on the Brenneises' fourth, fifth, and seventh causes of action. Consequently, the Court DENIES the Brenneises' motion for partial summary judgment on their fourth cause of action.


The Brenneises' operative complaint was filed in May 2009. [Doc. No. 65] The Rehabilitation and ADA claims are sometimes referred to as the "civil rights" claims to distinguish them from the IDEA claims that were adjudicated in an administrative proceeding.*fn1 All claims arise out of the same facts. The remaining claims primarily focus on the School District's efforts to accommodate T.B.'s need for G-Tube feedings at school. [SAC ¶¶ 34-41 (fourth claim).] A second claim challenges whether the School District failed to implement the administrative law judge's ("ALJ") remedial order on the G-Tube feeding procedure as well as the order to fund occupational therapy from T.B.'s current provider (School Options) during his transition into public school. [Id. ¶¶ 35-38, 44-48 (fifth claim).] The Brenneises also allege that the School District retaliated against Mrs. Brenneise's advocacy for T.B. [Id. ¶¶ 59-60 (seventh claim).]

A. Facts Leading Up to OAH Decision

T.B. has autism and Phenylketonuria ("PKU"), which caused brain damage and physical difficulties. [OAH Dec. FF ¶¶ 3-6.] He cannot metabolize a common amino acid found in protein; therefore, he must follow a closely-monitored low-protein diet that is supplemented with a special formula two or more times a day. T.B. ingests the formula through a gastrostomy tube ("G-Tube") which is "a surgically implanted vessel that leads from a plug on the surface of his skin through a tube into his stomach." [Id. FF ¶ 216.] The formula must be measured and mixed, poured into a syringe, and inserted into the G-tube, which is then flushed clean with water. [E.g., id.] This process takes about fifteen minutes, but T.B. may need to rest briefly if nausea occurs. T.B.'s motor skills, coordination, and attention span were impaired, and an adult supervised him when he measured and mixed the formula. [E.g., id. FF ¶¶ 42, 87.]

T.B. had been home-schooled since 2003, where his mother helped him with the G-tube feedings. [E.g., id. FF ¶ 129.]

In 2006, the parties tried but failed to agree upon an "individualized education program" ("IEP") that would address the full range of T.B.'s unique educational needs and goals in a public classroom for the 2006-2007 school year. The parties committed many hours to meetings with several participants, engaged in extensive discussion, exchanged detailed correspondence, and valiantly and in good faith tried to resolve their differences. It is not necessary to outline those facts in detail as the paper trail is part of the record. [E.g. Glynn Decl. ¶¶ 4-12; OAH Dec. FF ¶¶ 1-263; DSMF 117-20; PSMF Reply 158-60.]*fn2 With regard to specialized health care services, the August and December 2006 IEPs offered eight hours of nurse services for the school year. Three hours of consultation and training were designated for the first month, and five hours for the rest of the year as needed. [PSMF Opp. 29-32, 48-51.] The 2006 IEPs did not identify the person who would be responsible for G-Tube feedings, as the School District contended the procedures would be detailed in a health care management plan that had not yet been written. [OAH Dec. FF ¶¶ 216-19, 223, 229; LC ¶¶ 36-48.] At the time the School District offered the IEPs for T.B.'s 2006-2007 school year, all of the available information established that T.B. could independently complete the task if he had an adult to prompt him to stay on task, but that he did not need a nurse to personally assist him. [DSMF 11, 87; PSMF Reply 133.] The entire process took approximately twenty minutes.

Mrs. Brenneise raised a number of concerns about various services, but did not specifically object to the accommodations outlined for T.B.'s G-Tube feeding. [PSMF Opp. 34, 38-40, 55, 77-78, 80; PSMF Reply 106 (expressing concerns for formula T.B. spilled on his clothes), 144, 154 (Brenneises' first raised nurse issue while preparing for the administrative hearing in 2007); Brenneise Decl. ¶ 6 (expressing concern for privacy during feedings).]

When the parties could not agree on many issues concerning appropriate services, they submitted their disputes to the California Office of Administrative Hearings ("OAH"). In the interim, the parties agreed that T.B. would continue to be educated at home by his mother, while the School District paid for a variety of support services, including occupational therapy and a full-time behavioral aide.

The administrative hearings lasted twenty-seven days in May to July 2007 and amassed an enormous record. On October 5, 2007, the ALJ decided that T.B. was entitled to relief on three issues, but concluded that the School District prevailed on the other fifteen issues in the case.

In the relevant part of its lengthy decision, the ALJ held that the School District denied T.B. a FAPE for the 2006-2007 school year because it failed to develop a health care plan that would enable him to attend school safely. The ALJ found that T.B.'s G-Tube feeding was a "specialized" physical health care service under both federal and state law and must be performed by an individual with medical training. [OAH Dec. LC ¶ 40-42 (citing FF ¶¶ 216-19).] Moreover, the School District's own policies, which were published on the public website, recognized that treatment. [Id. LC ¶ 42.] Yet the IEP did not identify the classification of the employee who would help T.B. with his G-tube feedings, and the BSA was not the appropriate person. [Id. LC ¶¶ 47-48.] The ALJ held this violated California law, which permits only two types of employees to provide specialized physical health care services: (1) qualified persons who possess an appropriate credential; and (2) qualified designated school personnel trained in the administration of specialized physical health care if they perform those services under the supervision of a credentialed school nurse or licensed physician. [Id. FF ¶ 235.]

As a remedy, the ALJ added the following language to the December 2006 IEP: G-Tube feedings will be scheduled daily in the nurse's office. A school nurse will be present and will personally assist the student with the student's G-Tube feeding. The G-Tube feeding will occur at the time(s) and in the manner designated in a doctor's order from Student's current physician. Student's mother will be responsible for providing the school nurse with a current doctor's order specifying the time(s) of the G-Tube feeding and the amount of formula to be used in the feeding(s), and for providing updated doctor's orders whenever there is any change in the G-Tube feedings. [Id. at p. 74, ¶ 1.] Nonetheless, the ALJ emphasized that:

[N]othing in this Decision is intended to prevent the District from proposing, in a future IEP, that another classification of employee assist Student with the feedings, provided that the assistant meets the requirements of Education Code section 49423.5. In addition, nothing in this Decision is intended to limit the classification of employee that may be designated pursuant to that code section. This Decision is simply based on the finding that, at the present time and in the present case, the District failed to make an evidentiary showing that the three hours of training provided for District staff in the December 4 [2006] IEP would qualify Student's one-to-one behavioral aide to perform specialized physical health care services.

[Id. LC ¶ 62.] The ALJ confirmed that T.B. did not need one-to-one nurse assistance to implement the other aspects of the health plan. [Id. LC ¶ 61.]

The other issue related to the proposed plan to transition T.B. from his home program into a full-time school program. The ALJ modified T.B.'s transition plan to provide that until he reached phase four of the plan (i.e., attending a full day at school), his District-funded services would "continue with his current NPA providers." [Id. at p. 74, ¶ 3.] T.B. had been receiving occupational therapy ("OT") from School Options, a private company owned by Chris Vinceneux.

B. Facts After the OAH Decision

The OAH announced its decision on the 2006 IEPs on October 5, 2007. By that time, a new school year (2007-2008) had begun. The parties continued to discuss modifications to an IEP that would comply with the OAH Decision and govern the new school year.*fn3 The School District sought to place T.B. at Wangenheim Middle School.

On October 15, 2007, the School District modified the proposed IEP to include the language required by the OAH Decision on two topics. [Wyner Decl., Ex. 2.] First, in the health/nursing services delivery section, the October 2007 IEP stated that the G-Tube feeding would occur in the nurse's office, and that a nurse would be present to "personally assist"

T.B. Id. It further specified that the School District would provide "3 hours consultation/training prior to [T.B.'s] starting school" and "5 hours consultation per year as needed." [Id.] The Brenneises emphasize that this was the same number of hours (eight) offered in the prior December 2006 IEP and that the OAH Decision specifically held that three hours was not sufficient for the nurse to train the behavioral aide to supervise T.B.'s G- Tube feedings. [OAH Dec. LC ¶ 62 ("based on the finding that, at the present time and in the present case, the School District failed to make an evidentiary showing that the three hours of training provided for District staff in the December 4 IEP would qualify Student's one-to-one behavioral aide to perform specialized physical health care services.").]

In the transition plan section, the School District added that the nurse would train school staff about the feeding procedures, with Mrs. Brenneise's input. [Wyner Decl., Ex. 13.] One hour was provided for all staff, with an additional two hours for the staff that would work directly with T.B. [Id. at p. 93.] The IEP also stated that "health training will be ongoing throughout the year, to ensure that all staff understand and can implement this critical information." [Id. at p. 98.]

Second, the October 2007 IEP identified School Options as a service provider until T.B. made the complete transition into a full-day at public school. [Wyner Decl., Ex. 2.] This addition was required by the OAH Decision that allowed T.B. to receive services from his current NPA providers.

In order to facilitate T.B.'s transition from home to school, the transition plan for the October 2007 IEP also added that the School District's Occupational Therapist (Phyllis Gahan) would observe two of T.B.'s sessions with School Options; and that both OTs would visit Wangenheim to make recommendations about the equipment. [Wyner Decl., Ex. 13.] The IEP did not alter the number of hours of direct occupational therapy services. [Id. (60 minutes per week in a small group; 30 minutes per week with 1 or 2 students; and 10 hours annual consultation time).]

On October 31, 2007, the Brenneises formally rejected the modified offer as being non-compliant with the OAH Decision. [Wyner Decl., Ex. 21.] They based the objection on their desire to have School Options continue to provide OT services. [Id.] The Brenneises did not at that time object to the offer of nursing services. [Id.]

On November 8, 2007, the School District filed a motion asking the ALJ to modify the requirement to continue services from the non-public agency because new facts showed School Options was not certified with the California Department of Education. On November 21, 2007, the ALJ summarily denied that request because "[t]hat relief is not proper." [Wyner Decl., Ex. 14 at 2.] In addition, the ALJ held that all parties agreed to fund T.B's current private providers and that agreement preempted any problem with School Options' lack of certification. [Id.]

Next, the School District proposed a November 2007 IEP. Because of the passage of time, this IEP fulfilled the IDEA requirement to review and revise each student's IEP annually. [Wyner Decl., Ex. 4; Glynn Supp. Decl., Ex. NN.]; 20 U.S.C. § 1414(d)(2), (4).

On November 29, 2007, the parties convened an IEP Team Meeting to discuss the services T.B. would receive at Wangenheim. [Glynn Supp. Decl., Ex. NN.] The IEP provided eight hours of nurse services. The School District proposed that the nurse both "personally assist" T.B. with the procedure, and train the behavioral support assistant ("BSA"), during the first week of school in the nurse's office. The IEP coordinated the G-Tube feeding with the four stages of T.B.'s transition plan. During the first, second, and third phases when T.B. was attending school part-time, the school would provide a nurse once a day; and then twice a day during the fourth phase, when T.B. would be spending a full day at the public school. [Wyner Decl., Ex. 4.] Thereafter, the BSA would assist T.B. in the nurse's office under her supervision. The nurse would continue to supervise to ensure the aide was competent. [Glynn Supp. Decl., Ex. NN.] The nurse would also train other staff members as back-ups. [Id. (Special Education Technicians or "SET" are qualified to provide health care services at school).] The November 2007 IEP further provided nursing services for one hour per month for the BSA to consult with the nurse and for the nurse to monitor the BSA's performance. [Id.]

On December 14, 2007, Mrs. Brenneise rejected the proposal on the ground that it was "wholly inconsistent" with the OAH Decision that T.B.'s G-Tube feedings be administered and supervised by a nurse. [Glynn Decl., Ex JJ; Wyner Decl. ¶ 6; PUMF 10; Brenneise Decl. ¶ 11.]

In response, the IEP Team re-convened on December 21, 2007 and the School District increased the total nursing hours from eight to twelve for the year. ...

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