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Cupertino Union School District v. K.A.

United States District Court, N.D. California, San Jose Division

December 2, 2014

K.A., BY AND THROUGH S.A. AND J.S., et al., Defendants

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For Cupertino Union School Distric, Plaintiff: Rodney Lawrence Levin, MCARTHUR & LEVIN, LLP, Los Gatos, CA.

K.A., By and Through S.A. and J.S., his Parents, Defendant, Pro se, Cupertino, CA.

S.A., biological father of K.A., Defendant, Pro se, Cupertino, CA.

S. A., an individual, Defendant, Pro se, Cupertino, CA.

K.A., By and Through S.A. and J.S., his Parents, Counter-claimant, Pro se, Cupertino, CA.

For Cupertino Union School District, Counter-defendant: Rodney Lawrence Levin, MCARTHUR & LEVIN, LLP, Los Gatos, CA.

S.A., biological father of K.A., Counter-claimant, Pro se.

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BETH LABSON FREEMAN, United States District Judge.

[Re: ECF 45]

In this appeal pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., plaintiff Cupertino Union School District (" District" ) seeks judicial review of adverse rulings rendered by Administrative Law Judge Margaret Broussard (" ALJ" ) of the California Office of Administrative Hearings (" OAH" ) on two of three issues presented at a five-day due process hearing. The District also appeals the ALJ's award of compensatory services to student K.A. based on those adverse rulings. Defendant and counterclaimant S.A. is K.A.'s father (" S.A." or " Father" ), who is proceeding pro se to vindicate his independent right to a free appropriate public education (" FAPE" ) for his child pursuant to the IDEA. Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). Father seeks judicial review of the ALJ's ruling on the third issue, on which the ALJ ruled in the District's favor.

Presently before the Court is the District's Motion for Summary Judgment.[1] On September 4, 2014, the Court heard oral argument on the motion, after which it deemed the matter submitted. Having carefully considered the administrative record as well as the parties' respective written submissions and oral argument, the District's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, and the issue of remedies is remanded to the ALJ for further evidentiary development and consideration consistent with this order.


A. Statutory Background

This appeal concerns student K.A., a disabled child who is eligible for special education and related services under the IDEA. The IDEA provides state and local agencies with federal funding to assist

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in educating children with disabilities, conditioned on compliance with certain goals and procedures. 20 U.S.C. § 1412(a); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993) (" Ojai " ). One such condition is " to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A).

To achieve this purpose, the IDEA provides for a cooperative process between parents and schools that culminates in the creation of an Individualized Education Plan (" IEP" ) for every disabled student. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). The IEP is developed by a team comprised of the parents, at least one regular education teacher and one special education teacher of the student, a representative of the local educational agency, and, at the district or parents' discretion, others knowledgeable about the student. 20 U.S.C. § 1414(d)(1)(B). The IEP " must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide," Schaffer, 546 U.S. at 53, and must be reasonably calculated to enable the child to receive " meaningful" education benefit. N.B. v. Hellgate Elementary Sch. Dist., ex rel. Bd. of Dirs., Missoula Cnty., Mont., 541 F.3d 1202, 1212-13 (9th Cir. 2008); see U.S.C. § 1414(d)(1)(A).

A school district " must comply both procedurally and substantively with the IDEA." M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th Cir. 2005). The cooperative process between parents and schools is one such important procedural safeguard to which schools must adhere in developing an IEP. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); see also Ojai, 4 F.3d at 1469; Amanda J. ex rel Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 882 (9th Cir. 2001). Not all violations of IDEA procedures result in a denial of a FAPE to a student. R.B., ex. rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir. 2007). Thus, in considering whether a school district has denied a student a FAPE, courts must undertake a two-part inquiry: first " determine whether the school district 'complied with the procedures set forth in the Act,'" and second, " determine whether 'the individualized educational program developed through the Act's procedures [was] reasonably calculated to enable the child to receive educational benefits.'" M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 852 (9th Cir. 2014), as amended (Oct. 1, 2014) (quoting Rowley, 458 U.S. at 206-07). " However, the court need not reach the question of substantive compliance if the court finds procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents' opportunity to participate in the IEP formulation process, or that caused a deprivation of educational benefits." N.B., 541 F.3d at 1207 (quoting Amanda J., 267 F.3d at 892).

In the event a student's parents believe that the district is not complying with the IDEA's procedural or substantive requirements, statutory safeguards entitle the parents to " 'an impartial due process hearing' conducted either by the state or local educational agency." Ojai, 4 F.3d at 1469. After a due process hearing, " any party aggrieved by the findings and decision" of the administrative proceedings may file a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A). The District invoked this right to judicial review after the ALJ ruled adversely to it on two of three issues presented during an

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administrative due process hearing. Father cross-appeals the third issue, on which the ALJ ruled in the District's favor.

B. Factual Background

K.A. is a twelve year old boy with regressive autism who moved into the District at the beginning of the 2010-11 school year. Since February 2011, K.A. has been eligible for special education as a " student with autistic-like behaviors." OAH Decision 4, ¶ 1.[2] For the 2011-12 school year, K.A. was initially placed in a moderate to severely handicapped special day class at Eisenhower Elementary School taught by Mrs. Vicky Broumas, until Parents removed K.A. in April 2012 following a series of seizures both in the classroom and on the school bus. Id. at 6, ¶ 8. This appeal concerns the District's efforts to develop an annual IEP for the 2012-13 school year, as well as its response to the requests made by K.A.'s parents--S.A. and J.S. (collectively, " Parents" )--after K.A. suffered his seizures in April 2012. Parents filed due process complaints on March 18, 2013 and April 2, 2013, raising issues addressed in a single consolidated due process hearing. By way of introduction, the issues presented to the ALJ, after development at a prehearing conference, were as follows:

(I) Did the District unilaterally predetermine the Student's individualized education program (IEP) in an IEP offer dated March 29, 2012, which denied Student a free appropriate public education (FAPE)?
(II) Did the District deny Student a FAPE at an IEP meeting on May 31, 2012, by denying Parents' request for home-hospital instruction because of Student's medication?
(III) Did the District deny Student a FAPE for the 2012-13 school year (SY) by not providing him with home-hospital instruction and related services following an August 29, 2012, agreement, that it would do so?

OAH Decision 2.

i. The February 16, 2012 to March 29, 2012 IEP Process

On February 16, 2012, the District convened K.A.'s annual IEP meeting for the 2012-13 school year with Parents, K.A.'s IEP team members, and an employee from Center for Autism and Related Disorders (" CARD" ) in attendance.[3] Id. at 6, ¶ 9. In advance of the meeting, Parents sent the District a set of proposed goals for K.A. that they wanted the IEP team to consider, along with an independent developmental assessment of K.A. performed in August 2011 by Dr. Damon Korb, MD, a Behavioral and Developmental Pediatrician and the Director of the Center for Developing Minds. Id. at 5, ¶ ¶ 6-7; 7, ¶ 13. The District distributed Parents' proposed goals to the IEP team members, but failed to distribute the Korb report prior to the team meeting. Id. at 7, ¶ 16. Thus, when the IEP team initially discussed K.A.'s needs on February 16, 2012, it was without the benefit of Dr. Korb's

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assessment and recommendations. The meeting notes indicate that this omission was discovered during the meeting and that the Korb report was distributed, read, and briefly discussed by the IEP team members.[4] See Mar. 29, 2012 IEP Offer at 27, ECF 38-6 at 31.

The team did not finish discussing K.A.'s goals and the Korb report on February 16, 2012. As such, no placement offer was made, and the meeting was adjourned to be reconvened at a later date. OAH Decision at 8, ¶ 18. Father requested that the meeting be reconvened before the end of February, but due to a week-long school recess and the planned vacation of Mrs. Broumas, the District could not schedule a follow up meeting before March. Id. at 8, ¶ ¶ 18, 20.

Dissatisfied with the consideration given to the Korb assessment, and feeling that " the District was not interested in parental input," Father filed a due process hearing complaint on February 22, 2012.[5] Id. at 8, ¶ 19. On March 2, 2012, Ms. Ota emailed the parents to notify them that the continuation meeting had been scheduled for March 9, 2012. Id. at 8, ¶ 20. Father, under the mistaken impression that the IDEA's " stay put" provision prevented any further consideration of the District's February 16, 2012 draft IEP during the pendency of Parents' due process complaint, asked the District to cancel the March 9 meeting until Parents said otherwise. Id. The District and Father continued to correspond leading up to March 9, with the District attempting to convince Parents that they could and should attend the scheduled IEP meeting and Father reiterating the parents' refusal to attend due to " stay put." Id. at 9, ¶ 21. On March 29, 2012, noting its failed attempts to encourage Parents' attendance at an IEP meeting, the District sent to Parents a completed IEP offer letter consisting of the February 16, 2012 draft goals, now finalized, minutes from the meeting, and recommendations as to placement. Id. at 9, ¶ 22; see also Mar. 29, 2012 IEP Offer, ECF 38-6 at 1-33.

At the due process hearing underlying the present case, Ms. Porter, K.A.'s speech and language therapist since January 2011, testified that she incorporated some, but not all, of Parents' proposed goals into her draft goals for the February 16, 2012 IEP meeting. Hr'g Tr. 46, ECF 39. She confirmed that these goals were the same as the ones in the March 29, 2012 IEP offer letter because the parents agreed to them verbally. Id. at 54. The ALJ found credible Ms. Porter's further testimony that she put her recommended service for K.A. into the IEP computer system in March 2012 at the request of Ms. Ota, the program coordinator, and that she had no other contact with anyone else from the District

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or the IEP team regarding her proposed speech and language services. Id. at 70; OAH ...

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