United States District Court, C.D. California
MEMORANDUM AND ORDER
STEPHEN J. HILLMAN, Magistrate Judge
This case arises from a dispute regarding the provision of educational services to the eight and half year-old son of Plaintiffs and Cross-Defendants Sean and Malika Bookout ("Student"), a child eligible for special education services on the basis of autism pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et seq. ("IDEA"). On April 18, 2013, Student filed the instant Complaint for Statutory Attorney Fees, in connection with the Decision rendered by Administrative Law Judge Alexa Hohensee ("ALJ") of the Office of Administrative Hearings ("OAH") on March 13, 2013. On May 16, 2013, Bellflower Unified School District ("District") filed a Counterclaim against Student, appealing the OAH decision and seeking attorneys' fees and costs. On February 1, 2014, the District filed its Reply.
In a minute order dated August 6, 2013, the Magistrate Judge set a briefing schedule regarding the appeal of the OAH decision, and deferred the issue of attorneys' fees and costs dependent on whether the OAH decision is affirmed in whole or in part. For reasons stated below, the OAH decision is affirmed.
I. BACKGROUND AND PROCEEDINGS
Student is an eight and a half year-old child eligible for special education services on the basis of autism. [4AR:68:570.] Per the terms of a prior agreement, for the 2010-2011 school year Student was placed in a general education kindergarten at Lindstrom Elementary School on a shortened schedule. [2AR:29:251.] It was also agreed that Student would receive forty hours per week of direct one-on-one applied behavior analysis ("ABA") support at home and at school and twenty hours per month of ABA consultation/supervision provided by a non-public agency ("NPA"), the Center for Autism and Related Disorders ("CARD"). [2AR:28:248 and 2AR:29:250.]
Student's general education teacher at Lindstrom was Ms. Evelyn Albert. Student was the first fully included autistic child that had ever been placed in one of her classrooms, and she had never had an autistic child mainstreamed into one of her classes for even part of the school day. In seventeen years with the District, she had received no training on autism. Lindstrom's principal at the time, Beverly Swanson, testified that she was unaware the Ms. Albert had never had a fully included autistic child in one of her classes and that because educating a fully included autistic child is "very labor intensive, " such children are placed on something of a rotating basis to evenly distribute the burden of educating them; they are not placed on the basis of the teacher's training and experience, or even the teacher's attitude towards having such a child in his or her classroom. [3AT:28:18-20, 29:8-10; 4AT:184:22-185:14.]
During the 2011-2012 school year, Student received ABA therapy at home and in school supervised by Ms. Marina Bulkin, MA, BCBA, of CARD. The CARD program addressed Student's maladaptive behaviors, communication deficits, self-direction, socialization, safety awareness and toileting skills. [5AR:103:791-792; 3AR:46:337-357, 62:545-551, 45:315-336.]
District Full Inclusion Specialist Janie Nilsson was responsible for providing the support Student required in order to be fully included in a general education classroom and to track his progress toward his IEP goals.
During the 2011-2012 school year, Student had loud verbal outbursts, threw materials and himself onto the floor, but his hands and knees, jumped out of his seat and ran around the classroom, kicked his legs, and on more than one occasion threw his head back violently while on the floor, slamming it into the floor of the classroom and outside the classroom on the asphalt. Student's outbursts occurred daily and were disruptive to Ms. Albert's class. As a result, Student's CARD aides often took him out of the classroom for up to fifteen minutes to calm him before returning to the classroom. [3AT:10:21-25; 12:16-25; 40:22-41:3; 254:17-255:2.]
On March 20, 2012, while supported by a substitute CARD aide, Student bit Ms. Albert's ankle. [3AR:59:540.] Subsequently, on April 19, 2012, Student bit another student but, according to Ms. Nilsson, "it wasn't hard, and didn't break the skin." [3AR:65:565.] On May 2, 2012, "[Student] bit another student on the web of her hand... caus[ing] an injury of approximately the size of a dime." [2AR:31:257.] The incident occurred when the child who was bitten tried to take a hula hoop away from Student. [2AR:33:259.]
Student struggled to socialize with other students when opportunities were presented both in the classroom setting and on the playground during recess. Other students would try to socialize with Student, and he would respond only when prompted by an aide. At the end of the school year, Ms. Nilsson and a CARD aide facilitated a three-student play activity during morning and recess that met with moderate success. [3AT:13:3-12; 257:209; 291:3-21.]
Ms. Albert testified that Student did not respond well to instruction in the general education classroom setting. [3AT:11:7-25.] Student was academically advanced in some areas and was eventually provided a First Grade level workbook. [3AT:288:240289:11; 4AR:74:632-637.] Ms. Nilsson explained Student's advanced academic progress in certain areas was because it was Student's second year in kindergarten. [2AR:29:251.] Ms. Albert tried individual instruction with Student, trying to engage Student individually multiple times a week. Over the course of the year, there was no measurable progress. [3AT:11:1-10; 21:25-22:15.]
Student's annual IEP meeting was convened the day following the biting incident, May 3, 2012. [4AR:68:570.] Based on input from the classroom teacher, Ms. Albert, Ms. Nilsson reported that "[Student] currently is able to read twenty-seven high frequency words in 15 minutes. He is also able to read thirty-one first grade Dolch phrases, as assessed over four days with a total time being 43 minutes." [3AR:68:573.] Ms. Albert further reported that "[Student] is able to add numbers with sums to ten without manipulatives or picture cues." [4AR:68:574.] Nevertheless, the District recommended Student's "immediate placement into the SDC [special day class] M-M [mild to moderate] program. [4AR: 68:584.]
At the hearing, the District admitted that it did not offer Student a specific M-M SDC. [3AR:174:4-14.] The District did recommend the continuation of the forty hour per week "home/school" ABA program and twenty hours per month of "consultation supervision" provided by an NPA. [4AR:60:579.] The District also recommended accommodations and modifications which called for the use of prompts in "all instructional settings, " [4AR:68:583.] The District also proposed that Student be mainstreamed 18% of the school day, with a specific provision that "student will not participate in the general education environment for academics." [4AR:68:582.]
Another IEP meeting was convened on May 11, 2012, the stated purpose of which was to discuss a "change of placement." [2AR:34:261.] At this meeting, the District did not offer Student an SDC placement, as previously recommended, but rather a "general education classroom at Washington Elementary School with the continued one-on-one aide support he has in place now..." [2AR:35:265.]
On May 16, 2012, Student's father indicated the Parents' agreement to the May 3, 2012, IEP with the exception of the proposed placement in an SDC. [4AR:68:586.]
On June 20, 2012, Student's kindergarten Student Achievement Report, signed by Ms. Albert, was issued. [4AR:76:639.] Although the report indicates that Student's "grades for subjects are based on goals and objectives as stated on [Student's] IEP, " he had met grade level standards in all areas marked except for "listening and speaking" and mathematical reason." [4AR:76:639.] At the hearing, Ms. Albert testified that Student's grades were based upon "both" his IEP goals and objectives and general education standards. Ms. Albert further indicated on the report card that Student "has made small steps in adjusting to a mainstream classroom" but, at the hearing, acknowledged that her opinion that Student had made little progress was based upon her expectations for general education students, not a fully included child with autism.
On May 24, 2012, Bellflower Unified School District ("District") filed a request for due process hearing, alleging that the May 3, 2012 IEP offered Student a free appropriate public education ("FAPE") in the least restrictive environment ("LRE"). On June 13, 2012, Student filed a due process hearing request alleging a failure to offer Student a FAPE in the LRE, as well as procedural violations. [1AR:1:1-15; 1AR: 3:25-29.] The hearing before the Office of Administrative Hearings took place on January 14 through 17, 2013. On March 13, 2013, the OAH issued its Decision in the matter.
On or about June 5, 2012, Student chased and scratched another student with a stick while on the playground. [2AR:39:272.] The incident was witnessed and reported to principal Swanson by the mother of the student who was bitten on May 2, 2012-this parent attended recess daily after her child was bitten. Following the incident, Ms. Swanson asserted that the CARD aide working with Student lied about the events and her actions regarding the incident, first saying that she did not know that Student had a stick, and then writing a statement in which she stated that she had taken a 4-inch long stick away from Student. As a result, Ms. Swanson communicated to Ms. Bulkin that she did not trust the CARD aide and lacked faith in CARD as an agency. Ms. Bulkin said she wanted to work together to help Student, but Ms. Swanson replied that she did not know how they could work together when there is no trust. [2AR:39:272; 2AR38:271.]
Pursuant to the "stay put" provision of federal and state educational law, in September of 2012, Student began attending, with the support of his CARD program, a first grade general education classroom at Lindstrom Elementary taught by Lara Cummins. At the time, Ms. Cummins had been employed by the District for eighteen years and Student was also the first fully included autistic child she had had in one of her classrooms.
In September 2012, the District performed a confidential FAA Assessment. School psychologist Stephanie Holleran, Psy.D, completed the FAA on November 13, 2 012. [2AR:40:273, 41:274.] An FAA is an analysis of antecedents, targets, and consequences of behaviors, and when physically aggressive behavior is exhibited, an FAA must be performed. The October 2012 FAA report concluded as follows: "It is this examiner's opinion that [Student] would be better served and less frustrated if provided instruction within a smaller classroom environment suited to his unique needs, support and pacing, and with appropriate mainstreaming opportunities." [2AR:41:292.]
In her November 2012 progress report, District Inclusion Specialist Janie Nilsson reported that Student was making progress toward all of his classroom goals, including "good progress" toward his reading goal and "substantial progress" toward his math goal. [5AR:101:782-783.] Ms. Nilsson testified that in Ms. Cummins' class Student's self-injurious behaviors decreased. She further testified, on January 15, 2013, that there had been no further incidents of Student biting peers or adults since the one which took place on May 2, 2012.
CARD Supervisor Marina Bulkin testified that Student's tantruming, aggression, self-stimulatory behaviors, and noncompliance had all decreased as a result of the ABA program implemented by CARD. Ms. Bulkin further testified that Student's use of functional communication had increased, as had his imitation skills which resulted in Student learning "a number of appropriate skills in that period of time, which has made him more successful in the first grade environment."
II. ISSUES ON APPEAL
The issues asserted by the District on appeal of the OAH decision are as follows:
a. Whether the ALJ erred by finding that the District failed to offer Student with a free appropriate public education pursuant to the May 3, 2012 IEP, and whether the ALJ committed a procedural violation by failing to offer Student a specific placement at the May 3, 2012, and May 11, 2012 IEP meetings;
b. Whether the ALJ erred by finding that whether the District was required to contract with nonpublic agency ("NPA") serving Student at the time of the IEP to provide the behavioral services specified in the IEP was not properly before her, and refusing to issue an advisory opinion; and
c. Whether the ALJ erred by ordering compensatory services to Student;
d. Who is the prevailing party entitled to attorneys' fees and costs?
III. STANDARD OF REVIEW
The standard for district court review of an administrative decision under the IDEA is set forth in 20 U.S.C. § 1415(i)(2). In any action brought under § 1415(i)(2), the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate. 20 U.S.C. §§ 1415(i)(2)(C)(i)-(iii).
This modified de novo standard requires that "due weight" be given to the administrative proceedings. Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley , 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The amount of deference so accorded is subject to the court's discretion. Gregory K. v. Longview Sch. Dist. , 811 F.2d 1307, 1311 (9th Cir. 1987). In making that determination, the thoroughness of the hearing officer's findings should be considered, with the degree of deference increased where said findings are "thorough and careful." Capistrano Unified Sch. Dist. v. Wartenberg , 59 F.3d 884, 892 (9th Cir. 1995)(citing Union Sch. Dist. v. Smith , 15 F.3d 1519, 1524 (9th Cir. 1994)). Where a hearing officer's decision contains some findings that are "thorough and careful, " and others that are not, the court can give deference to the thorough and careful findings and yet review other findings independently. See R.B., ex rel. F.B. v. Napa Valley Unified School Dist. , 496 F.3d 932, 943 (9th Cir. 2007)("[W]e accord particular deference to the [hearing officer's] thorough and careful' findings... although we independently review the testimony in the record that [she] failed to consider.").
Complete de novo review is inappropriate. Amanda J. v. Clark County Sch. Dist. , 267 F.3d 877, 887 (9th Cir. 2001). Instead, the district court must make an independent judgment based on a preponderance of the evidence and giving due weight to the hearing officer's determination. Capistrano , 59 F.3d at 892. The preponderance of the evidence standard "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." Hendrick Hudson , 458 U.S. at 206. Rather, as indicated above, the court must give "due weight" to the administrative proceedings. Id . After making the requisite independent assessment under the constraints outlined above, the court is free to accept or reject the hearing officer's findings in whole or in part. Ojai Unified Sch. Dist., 4 F.3d at 1472-73. The burden in this proceeding is on the District, as it is the party challenging the administrative ruling. Schaffer ex rel. Schaffer v. ...