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Forrest Moyer, A Conserved Individual, By and Through His Guardian Ad v. Long Beach Unified School District

January 24, 2013

FORREST MOYER, A CONSERVED INDIVIDUAL, BY AND THROUGH HIS GUARDIAN AD LITEM, LYNN MOYER, PLAINTIFF,
v.
LONG BEACH UNIFIED SCHOOL DISTRICT, A LOCAL EDUCATION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Forrest Moyer appeals an administrative ruling regarding the adequacy of public educational services that the Long Beach Unified School District (the "District" or "LBUSD") provided under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq. Moyer filed a first Request for Due Process Hearing on September 24, 2008 and a second request, raising additional claims, on November 25, 2008.*fn1 The two cases were consolidated, and the parties participated in an administrative hearing in 2009. The hearing addressed five issues:

(1) whether the two-year statute of limitations barred Moyer's claims that he was denied a free and appropriate public education ("FAPE") for the 2003--2004 school year through September 24, 2006 (two years prior to the filing of case one) because his parents should have been provided with a notice of procedural safeguards; (2) whether Moyer was denied a FAPE for the 2003--2004 school year through September 24, 2006 because his parents were not provided a notice of procedural safeguards; (3) whether Moyer was denied a FAPE for the 2003--2004 school year through September 24, 2006 because the District should have assessed him and found him eligible for special education pursuant to its "Child Find" obligation; (4) whether Moyer was denied a FAPE from September 24, 2006 through November 24, 2008 (the date of the filing of case two) because he was not provided with a notice of procedural safeguards; (5) whether Moyer was denied a FAPE from September 24, 2006 through November 24, 2008 because the District should have assessed him and found him eligible for special education pursuant to its "Child Find" obligation.*fn2

On March 26, 2009, Office of Administrative Hearings Administrative Law Judge ("ALJ") Richard T. Breen issued a decision in favor of the District.*fn3 The ALJ found that Moyer's first three claims were barred by the relevant statute of limitations and that his subsequent claims were barred because he had not been found eligible for special education prior to turning nineteen years of age.*fn4

On June 19, 2009, Moyer appealed the ALJ's decision.*fn5 While not disputing the ALJ's findings of fact, Moyer contends that the ALJ erred by not determining whether the District should have found him eligible for special education, which could potentially have provided a basis for tolling the statute of limitations and allowing him to be found eligible for special education beyond the age of nineteen. After Moyer filed his opening brief,*fn6 the District filed a responsive brief in which it sought attorneys' fees. The District contends plaintiff's appeal is frivolous, unreasonable, and without foundation.*fn7

I. FINDINGS OF FACT

A. Moyer's Educational History

1. Moyer was born on September 25, 1986, and was twenty-two years old at the time of the administrative hearing.*fn8 At that time, Moyer's mother, Lynn Moyer, had been appointed as his conservator;*fn9 she has been appointed his guardian ad litem for purposes of this litigation.*fn10 Lynn Moyer is a practicing attorney, although she has no experience or training in special education law.*fn11

2. Attending private religious schools, Moyer progressed academically through elementary school and junior high without incident, successfully completing the ninth grade in spring 2002 and regularly participating in sports.*fn12 During elementary school, Moyer was referred to the District for speech therapy.*fn13 In connection with his assessment by the District, Moyer's mother received a notice of parental rights and procedural safeguards in February 1995.*fn14

3. Moyer suffered a series of head traumas while growing up, however.*fn15 In particular, he became unconscious following a collision during a football game in fall 2001, as well as after a fall from a bicycle stunt around that same time.*fn16 In January 2002, Moyer was again knocked unconscious in a snowboarding accident.*fn17

4. In the summer of 2002, just after finishing ninth grade, Moyer began exhibiting signs of short-term memory loss and strange behavior.*fn18 His parents testified that he did not appear interested in activities, became increasingly disorganized, and appeared confused during sports at which he had previously excelled.*fn19 A family friend testified that Moyer was a different child from the one he had known over the years.*fn20 Believing that perhaps he had become involved with drugs, Moyer's parents gave him over-the-counter tests for illegal drugs. The results were negative.*fn21

5. In June 2002, Moyer enrolled at Wilson High School in the LBUSD for the tenth grade.*fn22

At all relevant times, Moyer's parents resided within the boundaries of the District.*fn23

6. Just prior to the start of fall classes, Moyer suffered a seizure and was taken to the hospital by his parents where he was treated with anti-psychotic drugs.*fn24 In September 2002, after starting classes at Wilson, he was taken to the school nurse's office after apparently exhibiting strange behavior that included eating bark from a tree.*fn25 Subsequently, Moyer was diagnosed as having a mood or bipolar disorder, and received four weeks of home hospital services.*fn26 The District was advised of this hospitalization, and provided home instruction while Moyer underwent outpatient psychiatric care.*fn27 A physician's report indicated that Moyer could return to school without restrictions after October 28, 2002.*fn28

7. After four weeks outpatient care, Moyer returned to school and completed the 2002 fall semester. Concerned that his grades were slipping, Moyer's mother met with school officials on February 26, 2003 to discuss his bipolar disorder and ways to improve his grades.*fn29 Although the District staff members who testified at the hearing did not recall much about Moyer, the meeting did result in the drafting of a "Section 504 Accommodation Plan."*fn30 The plan identified four accommodations for Moyer's bipolar disorder: (1) teachers would recognize his symptoms and call a counselor or nurse if he needed help; (2) Moyer and the teachers would keep a daily homework plan; (3) teachers would call home if Moyer was having difficulty in class; and (4) teachers would provide more time for class work if needed.*fn31

8. In March 2003, Moyer took the California High School Exit Exam, passing the mathematics section but failing the English-language arts dection.*fn32 Moyer received the following grades upon completion of the spring 2003 semester at Wilson: "A" in soccer; "B-" in surfing; "C" in art and English; "D" in history and algebra; and "F" in biology.*fn33

9. In June 2003, Moyer's physician sent the District a "Physical Examination Report," indicating that Moyer could participate in all sports. The report stated that Moyer was being treated with medication for a "mood disorder."*fn34 Moyer's parents also spoke with district staff about his bipolar disorder.*fn35

10. During the fall 2003 semester, Moyer's parents noticed that he was continuing to have trouble completing his homework.*fn36 Moyer also repeatedly called his mother because he was getting lost while at school.*fn37 A second Section 504 Accommodation meeting was held on October 2, 2003.*fn38 At the meeting, district staff indicated that Moyer was falling asleep in class, was refusing to do his work, and was leaving class without permission.*fn39 The Accommodation Plan that was drafted provided that: (1) the school would inform Moyer's parent's of unusual behavior; (2) Moyer's counselor would inform the staff of his disorder;

(3) staff would allow Moyer to see the counselor, psychologist, or nurse if he became confused at school; (4) Moyer and his parents would ensure that he took his medication consistently; (5) teachers would review Moyer's assignments with him; (6) teachers would send Moyer to the counselor for tardiness; (7) teachers would allow Moyer to make up work missed; (8) they would give him extended time for assignments and tests; (9) they would break assignments into smaller parts; and (10) they would notify his parents if Moyer had trouble completing assignments so he could complete them at home.*fn40

11. A month after this meeting, Moyer's quarterly report card indicated that he was getting a "B" in Spanish, but was failing geometry and English. He received a "D" in science, and received no credit for surfing.*fn41 Moyer's mother discussed her concerns about these grades with Moyer's doctors, and they recommended that he be placed in a residential program that specialized in helping children with mental health problems.*fn42

12. On November 6, 2003, Moyer's parents enrolled him at the Logan River Academy in Utah.*fn43 On November 10, 2003, Moyer's mother responded to an email from his English teacher at Wilson about missed assignments, and notified the teacher that Moyer had been placed in a boarding school.*fn44 The email stated that Moyer had not been "getting the appropriate education he was entitled to" at Wilson.*fn45

13. Moyer attended the Logan River Academy until August 2004, just before he turned eighteen.*fn46 He sporadically attended Long Beach School for Adults beginning in spring 2005, where he enrolled as a regular adult seeking a high school diploma.*fn47 Moyer turned nineteen on September 25, 2005. At the time of the hearing, he had not received a high school diploma and was residing at the Casa Colina Brain Institute.*fn48

14. At no time following the conclusion of Moyer's speech therapy during elementary school did district personnel recommend Moyer for a special education assessment, provide a special education assessment plan, or give Moyer's parents notice of their rights or procedural safeguards under the IDEA.*fn49 Indeed, multiple district personnel testified that Moyer was never referred for a special education assessment.*fn50 For their ...


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