United States District Court, N.D. California, San Jose Division
ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE ON ISSUE TWO
BETH LABSON FREEMAN, District Judge.
In this appeal pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., pro se defendant and counterclaimant S.A. ("S.A." or "Father") appeals the adverse ruling by an Administrative Law Judge ("ALJ") of the California Office of Administrative Hearings ("OAH") on the second of three issues presented at a five-day due process conducted in May and June 2013. Specifically, the ALJ concluded that plaintiff Cupertino Union School District ("District") did not deny student K.A. a free appropriate public education ("FAPE") when it denied the request of K.A.'s parents - S.A. and J.S. (collectively, "Parents") - for home-hospital instruction at a May 31, 2012 meeting to develop an Individualized Education Plain ("IEP") for K.A. OAH Decision at 30, ¶ 21.
After Father failed to file a motion for summary judgment regarding his appeal, the Court set a bench trial at Father's request. See Scheduling Order, ECF 56. On December 12, 2014, the Court heard the parties' respective arguments concerning Issue 2 and permitted Father to augment the record with testimony from K.A.'s mother, J.S. ("J.S." or "Mother"). After careful consideration of the record and the arguments of the parties, the Court, for the reasons stated below, AFFIRMS the ruling of the ALJ on Issue 2.
A complete recitation of the facts in this case can be found in the Court's prior order issued on December 2, 2014. See ECF 70. The following facts are relevant to the Court's consideration of Father's appeal on Issue 2.
K.A. is a twelve year old boy with regressive autism who is eligible for special education as a "student with autistic-like behaviors." OAH Decision 4, ¶ 1. In April 2012, K.A. suffered a number of seizures both in the classroom and on the school bus ride home. Id. at 6, ¶ 8. Parents did not return K.A. to school thereafter because he was being treated with new seizure medication and required monitoring. Parents communicated with the District regarding support for K.A. upon his return to school. Parents requested a one-to-one aide in the classroom and on the school bus ride to and from home. Id. at 12, ¶ 35. On April 26, 2012, District Director Deborah Textor sent Parents a letter stating: "At this time, the District denies your request for a 1:1 aide or for [K.A.'s] mother to act as [K.A.'s] aide." The letter further indicated that the District intended to schedule an IEP meeting in order to discuss K.A.'s condition and Parents' request for an aide. Apr. 26, 2012 Letter, ECF 38-6 at 49. At the December 12, 2014 bench trial, J.S. testified that she recalled offering to act as K.A.'s aide on the school bus and following up on the District's rejection of Parents' request.
On May 31, 2012, the District convened an "emergency" IEP meeting to discuss K.A.'s medical as well as educational needs. The school nurse explained at the meeting that in order for the District to provide instruction at a student's home, state law required a doctor's note stating the diagnosis, certifying that the condition prevented the student from attending a less restrictive placement, and projecting a calendar date for the student's return to school. OAH Decision at 14, ¶ 39. Because Parents had not provided such a doctor's note, the District did not offer home-hospital instruction and instead offered an aide to support K.A. for the entire school day, but no aide support on the school bus. Id. at 14, ¶¶ 39-40.
The District held another IEP team meeting on June 8, 2012 and developed an IEP that contained a different offer of placement services from the May 31, 2012 IEP. The ALJ found that the June 8, 2012 IEP superseded the May 31, 2012 offer, and that any deprivation of FAPE from denying home-hospital instruction on May 31, 2012 accordingly ended on June 8, 2012. Id. at 14, ¶ 41. The ALJ made no findings on the substantive or procedural appropriateness of the June 8, 2012 IEP. Id. n.18. This Court recently determined that Father cannot pursue a claim that the June 8, 2012 IEP was a deprivation of FAPE because he did not exhaust that issue in the administrative proceedings below. See ECF 71.
On April 2, 2013, Parents filed the second of two due process complaints later consolidated and heard in the administrative proceedings below. The complaint characterized Parents' issues as follows:
I) School District ignored parents request during the Individualized Education Program (IEP) Meeting held on 05/31/2012 for home school instruction to the Student due to Student's inability to attend the school due to medication.
II) The School District unilaterally reneged the signed IEP amendment dated 08/29/2012 by not giving Home Instructions and, Speech and Language Therapy."
Apr. 2, 2013 Due Process Compl. at 2, 38-3 at 18. The due process complaint further explained: "On 05/31/2012 IEP meeting, the parents requested home school instructions but the School District ignored the request. The student could not attend the school since 04/24/2012. The School District denied the home instruction for the student." Id. at 2. Based on these allegations and a prehearing conference with Parents and the District, ALJ Freie developed the issues to be presented at the administrative hearing below. Issue 2, the subject of this appeal, was formulated as: "Did the District deny Student a free appropriate public education (FAPE) at an IEP team meeting on May 31, 2012, by denying Parents' request for home-hospital instruction because of Student's medication?" Order following Prehearing Conference 2 ("Prehearing Order"), ECF 38-3 at 84; OAH Decision at 2.
The ALJ presiding over the underlying due process hearing concluded that Parents failed to satisfy their burden to demonstrate that the District's denial of home-hospital instruction May 31, 2012 was improper, as the record established that there was "no report from a physician, surgeon or psychologist that met the legal requirements for placement on home-hospital instruction." OAH Decision at 30-31, ¶ 21. Specifically, the ALJ cited the California Code of Regulations, noting that state law provides that an IEP team, in recommending home instruction "must have a medical report from the attending physician and surgeon or the report of the psychologist, as appropriate, stating the diagnosed condition and certifying that the severity of the condition prevents the pupil from attending a less restrictive placement.'" Id. at 30, ¶ 19 (quoting Cal. Code Regs., tit. 5, § 3051.4(d)). Parents had previously provided the District with a May 1, 2012 note from Dr. Todd Lewis and a May 4, 2012 note signed by an RN in order to excuse K.A.'s absence from school. However, the ALJ determined that neither note "met the legal criteria to allow an IEP team to place a student on home-hospital instruction." Id. at 13, ¶¶ 37-38. The record evidence also indicated that Parents would not permit the District to contact K.A.'s doctors directly in order to obtain the requisite information, though the ALJ credited Father's testimony that he did so out of privacy concerns. Id. at n.15.
As such, the ALJ concluded that the District did not deny K.A. a FAPE in denying home-hospital instruction on May 31, 2012 because Parents had not provided a physician's note that would satisfy the legal criteria permitting the IEP team to make a recommendation for ...