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B.M., A Minor Child By and Through R.M v. Encinitas Union School District

February 14, 2013

B.M., A MINOR CHILD BY AND THROUGH R.M.,
PLAINTIFF,
v.
ENCINITAS UNION SCHOOL DISTRICT,
DEFENDANT.



The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER AFFIRMING DECISION and DIRECTING ENTRY OF JUDGMENT

Background*fn1

This is an appeal from an Office of Administrative Hearings ("OAH") decision under the Individuals with Disabilities Education act, 20 U.S.C. § 1400, et. seq.

The Encinitas Union School District ("District") initially assessed B.M. ("plaintiff" or "Student") in June 2006, and found he was eligible for special education and related services because of autistic-like behaviors. Plaintiff's parents then sought independent educational evaluations ("IEE") at public expense because they disagreed with the District's assessment.

IEEs were conducted and were paid for by the District in the areas of speech and language, occupational therapy ("OT"), neuropsychological and behavior. On September 22, 2006, plaintiff's parents filed a due process hearing request because they disagreed with the District's initial individual education plan ("IEP"). The parties agreed to mediate their disagreements. Based on the mediation, the District agreed to continue the in-home applied behavior analysis ("ABA") services plaintiff was receiving from a nonpublic agency before he became eligible for special education and related services from the District. The Settlement Agreement between the parents and District also required the District to conduct a comprehensive transdisciplinary reevaluation ("TRR") assessment of plaintiff by April 2007, and to convene an IEP in May

The District conducted the required assessment and issued the TRR which addressed the areas of psychoeducational, speech and language, occupational therapy ("OT"), and adaptive physical education ("APE"). Plaintiff's parents disagreed with the TRR and requested additional IEEs at public expense. The District filed a request for a due process hearing in June 2007 to defend the appropriateness of its TRR.

On May 30, 2007, plaintiff's annual IEP meeting took place in which the parents actively participated. Thirty-five goals and objectives were developed. After the May 30, 2007 IEP meeting, the District convened additional meetings on June 14, and June 21, 2007. Because the parents continued to disagree with aspects of the IEP, the District agreed to conduct additional assessments for visual processing and auditory processing. The additional assessment did not occur because the parents did not consent to them.

The IEP developed for the 2007-2008 school year offered plaintiff placement in a preschool special day class (SDC) located at Flora Vista. The SDC is a regional preschool class program for severely handicapped 3-4 year old students with significant delays and includes children with autism. Additionally, the District offered a 31 hour-per-week program that included two-and-a-half hours of speech therapy a week, one and one-half hours of OT, eight hours per week of school-based ABA, six hours per week of in-home ABA, and one-on-one adult support throughout the school day. Plaintiff's parents did not consent to the May 2007 IEP contending the District's offer of placement and services represented a dramatic decrease from the services agreed to in the January 2007 Settlement Agreement that resolved the prior dispute and was insufficient to meet the unique needs of the Student, specifically his apraxia of speech. As previously noted, the District was unable to assess plaintiff's visual processing and the implementation of the IEP because the parents would not consent.

In August 2007, the District requested a due process hearing to determine the appropriateness of the District's IEP offer for the 2007-2008 school year. Plaintiff's parents then removed plaintiff from the District's program and indicated that they would obtain private related services and would seek reimbursement from the District. Nevertheless, the District continued providing plaintiff with 20 hours of in-home ABA therapy. During that same time, the parents obtained additional assessments from the same assessors who had conducted IEEs in 2006: Abby Rozenberg, Dr. Mitchel Perlman, Dr. Susan Daniel, Susanne Smith Roley, and Dr. Denise Eckman.

The two due process hearing requests were consolidated with the administrative hearing held on November 26-30, and December 3-5, 2007. On January 30, 2008, the ALJ entered her decision which found that the District had prevailed on all issues, determined the District's TRR was appropriate, and its IEP program offer for the 2007-2008 school year provided plaintiff with a FAPE. Plaintiff now appeals the consolidated decision.

II. Standard of Review

"When a party challenges the outcome of an IDEA due process hearing, the reviewing court receives the administrative record, hears any additional evidence, and 'bas[es] its decision on the preponderance of the evidence.'" R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007) (quoting 20 U.S.C. § 1415(i)(2)(B)). Based on this standard, "complete de novo review of the administrative proceeding is inappropriate." Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 817 (9th Cir. 2007). The party challenging an administrative decision in district court bears the burden of proof that the decision should be reversed. Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir. 1994) superceded by statute on other grounds; Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007).

The statutory requirement "that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Rather, "due weight" must be given to the findings in the administrative proceedings. Id.

As a threshold matter, deference should generally be given to the state hearing officer's findings when they are "thorough and careful." K.D. ex rel. C.L. v. Department of Educ., Hawaii, 665 F.3d 1110, 1117 (9th Cir. 2011). Here, the ALJ's decision was thorough and careful, and intensive and comprehensive. On the basis of the eight-day hearing, the parties' submission of a large number of exhibits, and the testimony from numerous educators and professionals affiliated with plaintiff and the District, the ALJ provided a thirty-five page, single-spaced decision. The decision provided a extensive and full discussion of the application of the facts of this matter to the relevant legal contentions made by the parties. The ALJ thoughtfully articulated the basis of her opinions, the inferences she drew from the testimony and the documentary record, and her rationale for affording greater weight to certain evidence and testimony. Accordingly, the ALJ's decision will be given substantial deference.

III. IDEA

"The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education." Hoeft v. Tuscon Unified Sch. Dist., 967 F.2d 1298, 1300 (1992) (citing Honig v. Doe, 484 U.S. 305, 310 (1988)). The IDEA ensures that "all children with disabilities have available to them a free appropriate public education ["FAPE"] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). Under the IDEA, a FAPE is special education and services that "(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the school standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title." 20 U.S.C. § 1401(9). To provide a FAPE in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education and services, conduct and implement an individualized education program ("IEP"), and determine an appropriate educational placement of the student. 20 U.S.C. § 1414. More than a "simple funding statute," the IDEA "confers upon disabled students an enforceable substantive right to public education in participating States, and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the

Honig, 484 U.S. at 310.

The Supreme Court held in Board of Education v. Rowley, 458 U.S. 176, 200-01 (1982), that the IDEA does not require school districts to provide special education students with the best education available, or to provide instruction that maximizes the student's abilities. See also Gregory K. v. Longview School Dist., 811 F.2d 1307, 1314 (1987). Instead, school districts are required only to provide a "basic floor of opportunity" that consists of access to specialized instruction and related services individually designed to provide educational benefits to the student, and the choice of methodology in providing special education and related services is the prerogative of the school district. Id.; see also C.P. v. Prescott Unified School District, 631 F.3d 1117, 1122 (9th Cir. 2011) (holding that IDEA allows educators the discretion to select from various methods in order to meet the individualized needs of a student if those practices are reasonably calculated to provide educational benefit). But "Congress did not intend that a school system could discharge its duty under the IDEA by providing a program that produces some minimal academic advancement, no matter how trivial." Amanda J. ex rel. Annette J. v. Clark County School Dist., 267 F.3d 877, 890 (9th Cir. 2011).

Under Rowley, the applicable federal and state statutes, and case law, the standard for determining if a school district's provision of services substantively and procedurally provides a FAPE involves consideration of four factors: (1) are the services designed to meet the student's unique needs; (2) are the services reasonably designed to provide some educational benefit; (3) do the services conform to the IEP as written; and (4) is the program offered designed to provide the student with the foregoing in the least restrictive environment. Capistrano Unified School Dist. v. Wartenberg By and Through Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995)(citing Rowley, 458 U.S. at 188--89); see also Katherine G. v. Kentfield School District, 261 F. Supp.2d 1159, 1171--72 and n.12 (N.D. Cal. 2003).

A student's FAPE must be "tailored to the unique needs of the handicapped child by means of an 'individualized educational program' (IEP)." Rowley, 458 U.S. at 181 (citing 20 U.S.C. § 1401(18)). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child, consists of a written document containing (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

20 U.S.C. § 1401(19); 20 U.S.C. § 1414(d); 34 C.F.R. § 300.20. Local or regional educational agencies must review, and where appropriate revise, each child's IEP at least annually. 20 U.S.C. §§ 1414(a)(5), 1413(a)(11). In addition, "[p]arental involvement is a central feature of the IDEA." Hoeft, 967 F.3d at 1300. "Parents participate along with teachers and school district representatives in the process of determining what constitutes a 'free appropriate education' for each disabled child." Id. Although the IDEA guarantees parents the opportunity to participate meaningfully, as one participant in a group, the parents' opinions may be overridden. See Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1131 (9th Cir. 2003) (recognizing that, although a school district must develop an IEP with "meaningful parental participation," a school district "has no obligation to grant [a parent] a veto over any individual IEP provision"), superseded by statute on other grounds, 20 U.S.C. § 1414(d).

Discussion

Plaintiff argues that the decision was arbitrary and capricious because the ALJ: (1) applied the Rowley standard of "some benefit" rather than the applicable higher "meaningful benefit" standard; (2) discounted all of the testimony of the student's witnesses without legal justification; (3) applied an erroneous legal standard concerning the least restrictive environment (LRE); and (4) was not impartial. Plaintiff points to the elimination of vision services in the IEP without an assessment, the reduction of speech and language assistance, the use of nonstandard testing with respect to the TRR, and the lack of a written plan for actual implementation for plaintiff's transition to a school site.

A. Some Benefit Standard

As noted above, the Supreme Court held in Rowley that school districts are not required to provide special education students with the best education available, or to provide instruction that maximizes the student's abilities. Rowley, 458 U.S. at 200-01. But plaintiff argues that the Rowley standard is inappropriately applied to the IDEA, and this case in particular, because Rowley interpreted the IDEA's predecessor statute, the EAHCA. (Opening Brief at 3.) As a result, plaintiff contends that "[w]hether a child obtained a 'meaningful benefit' rather than merely 'some' benefit is the appropriate standard in this case." (Id.) The "meaningful benefit" language is found in Adams v. ...


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