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A. V. v. Lemon Grove School District

United States District Court, S.D. California

February 23, 2017

A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, Plaintiff,



         This matter comes before the Court on Plaintiff A.V.'s (“A.V.”) Motion for Summary Judgment [Doc. No. 23] and Defendant Lemon Grove School District's (“District”) Cross Motion for Summary Judgment [Doc. No 24]. The motions have been fully briefed and the Court finds it suitable for determination on the papers submitted and without oral arguments in accordance with Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court DENIES both motions and upholds the decision of the Administrative Law Judge (“ALJ”).

         I. BACKGROUND

         A.V. is a 12-year-old boy who resides within the District and suffers from dyslexia, auditory working memory, and visual processing deficits. A.V. was first determined to be eligible for special education in December 2007.

         In the beginning of 2014, Andrea Vaz Antunes (“Mother”) and Antonio Vaz Antunes (“Father”) (collectively “Parents”) removed A.V. from the District school and placed him in Banyan Tree Foundations Academy (“Banyan”) a non-public school. [Administrative Record (“A.R.”) at 1216-17.[1] On March 3, 2014, Parents and District entered into a settlement agreement. [Id. at 1008-19.]

         The settlement agreement required District to reimburse Parents for tuition they had already paid at Banyan, as well as to set up an account for reimbursement expenses for tuition and transportation costs between the date of the settlement agreement and December 19, 2014. [Id.] Under the agreement District was required to conduct A.V.'s triennial assessment during the Fall of 2014 and convene a triennial Individual Educational Program[2] (“IEP”) meeting between October 19, 2014, and December 19, 2014. [Id. at 1010.]

         On December 15, 2014, an IEP team meeting was held which included Parents, A.V.'s advocate, Dr. Sara Frampton, and individuals from Banyan and District. [Id. at 328-358.] The meeting lasted two hours and some, but not all, of A.V.'s assessment results were discussed. [Id. at 353-56] Determining a placement for A.V. was a topic of discussion but no decision was reached and no offer was made. [Id. at 2329.] Dr. Frampton requested District continue to fund A.V.'s education at Banyan past December 19, 2014, District's legal counsel responded that the request would be discussed with Parents' counsel. [Id. at 353.] District did not identify a District school where A.V. should enroll while his IEP was being developed[3]. The meeting adjourned with all team members agreeing to reconvene as soon as possible in order to complete the IEP. [Id. at 355, 1315.]

         In an email exchange subsequent to the December IEP meeting, Dr. Frampton and District's legal counsel discussed possible non-public school options for A.V., including NewBridge. [Id. at 958-59.] On December 20, 2014, District's legal counsel informed A.V.'s representatives that District was taking the position was that it had not caused any delay in convening the triennial IEP mandated by the settlement agreement and stated that District would not continue the funding of Banyan. [Id. at 964.] The communication did not identify which District school or classroom A.V. should report to and no offer of an alternative placement pending development of A.V.s new IEP was provided. [Id.] The email continued “Lemon Grove is open to considering all placement options at the upcoming IEP team meeting, including Banyan Tree.” [Id.] On December 30, 2014, A.V.'s legal counsel requested that District, given the lack an offer of a free appropriate public education (“FAPE”) from District, continue to fund Banyan. [Id. at 360-61.] District did not respond to this request.

         On January 21, 2015, Parents' counsel were provided with a draft of A.V.'s goals that were to be discussed at the upcoming IEP team meeting. [Id. at 1035-51.] The email stated that Dr. Burkett had been unsuccessful in her attempts to contact Steve Mayo, Director of NewBridge, to discuss whether NewBridge would be an appropriate placement option for the team to discuss at the upcoming meeting. [Id. at 1035; see also 1543-44, 1605-06.]

         On January 23, 2015, IEP team meeting was reconvened. [Id. at 363-64.] The IEP team reviewed the results of all District assessments and Banyan progress reports. [Id; see also 1749-55.] Modifications were made to A.V.'s eligibility categories and proposed goals for A.V. were agreed upon. [Id.] The team agreed that neither a general education classroom nor a special day classroom at a District school would meet A.V.'s needs. [Id. at 364.] District offered A.V. placement at a non-public school but did not believe that Banyan was an appropriate facility[4]. [Id. at 1756-57, 1826, 2148-49.] Dr. Frampton and Parents wanted A.V. to remain at Banyan to the end of the 2014-2015 school year but suggested NewBridge as an option for a non-public school. [Id. at 364, 2252.] District's representatives would not agree to A.V. remaining at Banyan but did not propose an alternative school. [Id. at 364, 1766]. Dr. Burkett informed Parents that District would investigate other possible non-public placements and propose an alternative school. [Id. at 2253.]

         Following the initial IEP team meeting in December 2014, District and Parents engaged in settlement discussions which ended in April 2015 with no agreement having been reached. [Supplemental Record (“S.R.”) at 4-90.[5] In the wake of the breakdown of the settlement discussions Dr. Burkett began investigating possible non-public school placements for A.V. [A.R. at 1763-64.] Sierra was identified as a potential option for A.V. that had an immediate opening. [Id. at 1764-65, 1772.] During this period, A.V. remained at Banyan, with Banyan temporarily waiving tuition charges for him. [A.R. at 1900, 1903-04.]

         On April 24, 2015, Parents on behalf of A.V. filed a due process hearing request with the Office of Administrative Hearings (“OAH”) (“the OAH Complaint”). [Id. at 1-8.] The OAH complaint was amended on May 13, 2015, to include District's offer to place A.V. at Sierra Academy. [Id. at 13-24, 36.]

         On April 26, 2015, District's legal counsel wrote to A.V.'s legal counsel offering A.V. immediate placement at Sierra once Parents consented to the offer of placement. [Id. at 367-69.] In the letter, District agreed to reimburse Parents for tuition at Banyan subject to proof and documentation of attendance. [Id.; see also 1785-86.] A copy of the IEP document developed at the December 15, 2014, and January 23, 2015, IEP meetings was enclosed. [Id. at 370-404.]

         On May 6, 2015, District's counsel wrote to A.V.'s legal counsel asking for any revisions A.V. or his representatives were proposing regarding his IEP. [Id. at 405-06, 978.] District reiterated its offer of placement at Sierra and offered to facilitate Parents' tour of Sierra. [Id. at 405, 978, 1780-81.] May 20, 2015, was proposed as the next IEP team meeting date. [Id. at 405, 407, 978-79.] Before the May IEP team meeting, Parents toured Sierra without involving the District.[6] [Id. at 1034, 1275.]

         On May 20, 2015 an IEP team meeting was convened. [Id. at 411-38.] A.V.'s Parents, legal representatives for both parties, Dr. Frampton, and numerous District employees were present. [Id. at 411.] No representative from Sierra attended the meeting.[7][Id. at 1515-16.] Numerous issues of concern to Parents were discussed and the IEP was modified and revised in the two hour meeting. [Id. at 411.] District made an offer of placement and services to A.V. that included: placement at a non-public school, with round-trip transportation; speech and language therapy twice a week, for 25 minutes a session; occupational therapy services 30 minutes a week; and social work services of 1, 200 minutes a year. [Id.] The District reiterated that it was offering placement at Sierra, which had an immediate opening and was closer to his home and had a reading teacher and reading interventions. [Id. at 411, 1795-97.] NewBridge did not have an opening for A.V. and was further away than Sierra. [Id; see also 1544, 1795-96.] Dr. Frampton requested District fund Banyan for the remaining three weeks of the school year, and stated that NewBridge would serve A.V. well and had an opening starting at the beginning of the extended school year. [Id.] District agreed to respond to these requests by the end of the school year. [Id.]

         On May 26, 2015, District responded to Plaintiff's OAH complaint. [Id. at 986-92.] In its' response District extended its April 26, 2015, non-confidential settlement offer to the end of the school year and agreed to reimburse Parents for Banyan tuition and mileage reimbursement dating back to January of 2015 to the end of the 2014-2015 school year. [Id. at 991, 1786-87.] District continued to offer Sierra as FAPE. [Id. at 991.]

         On June 5, 2015, Parents declined District's May 28, 2015, Statutory Settlement Offer claiming that the terms of the offer were overly broad and lacked specificity. [Id. at 601-602, S.R. at 123-24.] On June 20, 2015, Parents' counsel served notice on District of Parents' intent to change A.V.'s placement from Banyan to NewBridge for the 2014-2015 extended school year. [A.R. at 994.]

         On June 24, 2015, Parents' counsel contacted District with a proposed resolution of the OAH matter, sought reimbursement for Banyan and mileage expenses, requested reimbursement for extended school year at NewBridge, placement at NewBridge for the 2015-2016 school year, and student's stay-put placement at NewBridge pending an IEP meeting at the beginning of the school year, an attorney fees and costs in the amount of $6, 000.00. [Id. at 603-04.]

         On July 1, 2015, Parents enrolled A.V. at NewBridge, for the extended school year at a cost of $2, 250. [Id. at 1525, 1551.] Parents were billed $1, 825 a month for tuition for the regular school year, which did not include charges for related services. [Id. at 1550.]

         On August 28, 2015, District responded to the notice of placement reiterating that District had decided against funding A.V.'s placement at NewBridge and that Sierra could provide A.V. with a FAPE in the least restrictive environment. [Id. at 996-98.] District stated that it had investigated Dr. Frampton's concerns regarding Sierra and concluded, that contrary to her assertions, Sierra does not serve children with significant social and emotional issues and disagreed with her assertion that NewBridge was better than Sierra. [Id. at 996-97.] District specifically referenced “Dr. Frampton's comment made at the May 20th IEP that NewBridge is the ‘perfect fit' for [A.V.].” [Id. at 997.] On the same day District filed a complaint with the OAH to determine whether its offer of Sierra Academy constituted a FAPE. [Id. at 67-74.]

         On September 2, 2015, the OAH consolidated A.V. and District's cases. [Id. at 88-90.] In October and November of 2015 a six day OAH hearing was held before Administrative Law Judge Darrell Lepkowsky. On January 8, 2016, the ALJ issued a Decision.[8] [Id. at 1060-108.] The ALJ found that A.V. was denied a FAPE between December 20, 2014 and April 26, 2015, because District failed to make an appropriate, specific offer of placement between December 20, 2014, and April 26, 2015. [Id. at 1089-92.] Further, the ALJ concluded that the District did not predetermine its offer of placement at Sierra and was not required to make the offer at an IEP team meeting. [Id. at 1093-95.] Additionally, the ALJ held that the failure to have a representative from Sierra at the May 20, 2015, IEP team meeting was not a FAPE violation and that Parents had meaningfully participated in the meeting. [Id. at 1095-97.] Furthermore, the ALJ found that the settlement discussions did not limit A.V.'s remedies, and held that A.V.'s Parents were entitled to reimbursement for A.V.'s tuition at Banyan from January 5, 2015, to June 10, 2015, totaling $27, 030, and for mileage costs for transporting A.V. to Banyan in the amount of $1, 604.67.[9] [Id. at 1102-06.]

         On April 4, 2016, A.V., by and through his Parents as guardians ad litem, filed a complaint for partial reversal of the decision of the Office of Administrative Hearings (“OAH”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. [Doc. No. 1]. On June 22, 2016, District filed a cross-complaint seeking partial reversal of the decision rendered by the OAH. [Doc. No. 14.]

         In his complaint Plaintiff alleges that the ALJ erred in holding that Defendant's April 25, 2015, offer of placement at Sierra was not a predetermination (Issue 3(a)). [Doc. No 1 ¶ 21.] Further, Plaintiff alleges that the ALJ was incorrect in ruling that the failure to have a non-public school representative at the May 20, 2015, IEP meeting was not a denial of FAPE (Issue 4(a)). [Id. ¶ 22.] Relatedly, Plaintiff also claims that the ALJ incorrectly ruled that Parents were not denied a meaningful opportunity to participate in the May 20, 2015, IEP meeting (Issue 4(b)). [Id.] Plaintiff also seeks reimbursement of reasonable attorneys' fees as the prevailing party in the OAH proceeding, as well as attorneys' fees incurred as a result of filing this action. [Id. ¶ 24.]

         Defendant's cross complaint includes multiple challenges to the ALJ's findings. First, Defendant contends that the OAH erred when it ruled that Plaintiff was denied a FAPE. (Issues 1, 2a, 7). [Doc. No. 14 ¶ 22.] Second, Defendant asserts that the ALJ erred in allowing Plaintiff an award of remedies and by deciding that Parents were entitled to tuition reimbursement for A.V.'s time at Banyan after December 20, 2014 (Issue 8). [Id. ¶¶ 25, 26, 28.] Relatedly, Defendant argues that the ALJ did not give due weight to the ongoing settlement discussions between the Parties or the offers made by the District, or fully consider the District's efforts to resolve Plaintiff's placement (Issue 8). [Id. ¶¶ 23, 24.] Fourth, Defendant argues that Plaintiff should be not be accorded prevailing party status. [Id. ¶ 30.]

         On November 4, 2016, the parties filed cross motions for summary judgment. [Doc. Nos. 23, 24.]


         The Individuals with Disabilities Education Act (“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(1)(A). The Act requires state and local education agencies to identify children with disabilities and develop annual individualized educational programs [“IEPs”] for every child. Id. § 1414. Further, the IDEA obligates schools and education agencies to fully involve parents in the formulation, review, and revision of their child's IEP. Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 208 (1982) (“Congress sought to protect individual children by providing for parental involvement in the development of state plans and polices, [], and in the formulation of the child's individual educational program.”)

         The IDEA provides that in actions challenging an administrative decision “the court shall review 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 is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The district court reviews the administrative decision under a modified de novo standard. Ojai Unified Sch. Dist. v. Jackson. 4 F.3d 1467, 1471-73 (9th Cir. 1993). But courts are cautioned not to view the provision as “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (citations omitted); Ojai, 4 F.3d at 1472.

         Rather, the reviewing court shall give due weight to the administrative proceedings and consider its' findings carefully. See Rowley, 458 U.S. at 206; Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 775 (9th Cir. 2007); Ojai 4 F.3d at 1474. Particular deference is to be given when the hearing officer's administrative findings are thorough and careful or based on the credibility of live witnesses. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994); Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001). However, “[h]ow much deference to give state educational agencies, [], is a matter for the discretion of the courts.” Gregory K., 811 F.2d at 1311 (emphasis in original).

         In analyzing whether a FAPE was available to a student under the IDEA, the court must determine if the State has complied with the procedures set forth in the Act and if the IEP is “reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at 206-207. See also K.D. ex rel. C.L. v. Dept. of Educ., Haw., 665 F.3d 1110, 1114 (9th Cir. 2011) (citing Amanda J., 267 F.3d at 881) (“A state must comply both procedurally and substantively with the IDEA.”). “However, procedural violations may be harmless “if they do not ‘result[] in a loss of educational opportunity or significantly restrict parental participation.” K.D, 665 F.3d at 1122-23 (quoting L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir. 2009)).[10]

         The party seeking relief bears the burden of demonstrating that the ALJ's decision should be reversed. J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010).


         In his motion, Plaintiff argues that District's April 23, 2015, offer of placement at Sierra was improper because it was a predetermination. [Doc. No. 23 at 17-25.[11] Further, Plaintiff asserts that the ALJ was incorrect in ruling that the failure to have a non-public school representative at the May 20, 2015, IEP meeting was not a denial of FAPE. [Id. at 24-29.] In its' papers, District assert that it offered A.V. a free appropriate public education. [Doc. No. 24-1 at 19-24.] Further, District contends that the ALJ's award of reimbursement was in error. [Id. at 25-31.]

         As explained in more detail below, the preponderance of the evidence supports the ALJ's decision that: (a) there was no predetermination; (b) there was no denial of FAPE because of a procedural violation; (c) A.V. was denied a FAPE between December 20, 2014 and April 26, 2015; and (d) reimbursement was proper. The Court defers to the ALJ's fact and policy findings because she presided over a lengthy hearing, reviewed hundreds of pages of documents, and provided a thorough and careful analysis of the issues. Union Sch. Dist., 15 F.3d at 1524.

         A. ALJ Correctly Decided that School District's Offer of Placement at Sierra Was Not a Predetermination in Violation of IDEA

         One of Plaintiff's procedural contentions is that placement at Sierra Academy was improper because it was a predetermination, in violation of the IDEA. First, Plaintiff argues that the offer of Sierra was independently developed without parent participation. [Doc. No. 23 at 18-20.] Second, Plaintiff asserts that the District's offer of Sierra was a “take it or leave it offer” thereby denying Parents and the IEP team an opportunity to be involved in the placement decision. [Id. at 20-21.] Finally, Plaintiff argues that the ALJ was incorrect in ruling that “District had not predetermined the offer of Sierra because it ‘was not required to identify a specific non-public school in Student's IEP.” [Id. at 21:7-9.] In opposition, District argues that the offer of Sierra was not the selection of A.V's “educational placement option, ” it was simple a location decision. [Doc. No. 26 at 13.] Further, District asserts that the educational placement decision was made at the January 23, 2015, IEP team meeting with full participation from A.V.'s Parents. [Id.]

         Predetermination is a procedural violation that deprives a student of a FAPE in those instances where placement is determined without parental involvement in developing the IEP. Ka.D. ex rel. Ky.D. v. Solana Beach Sch. Dist., No. 08-CV-622 W, 2010 WL 2925569, at *4, (S.D. Cal. July 23, 2010) aff'd sub nom. Ka.D. ex rel. Ky.D. v. Nest, 475 Fed.Appx. 658 (9th Cir 2012) (citing Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 857 (6th Cir.2004)). See also, e.g., K.D., 665 F.3d 1124 (“A school district violates the IDEA if it predetermines placement for a student before the IEP is developed or steers the IEP to the predetermined placement.”) (citing W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.1992), superseded by statute on other grounds, as recognized in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th Cir.2007)); Z.F. Ripon Unified Sch. Dist., No. 2:11-CV-02741-KJM-GCH, 2013 WL 127662, at *6 (E.D. Cal, Jan. 9, 2013) (“Predetermination occurs when an educational agency has made a determination prior to the IEP meeting, including when it presents one educational placement option at the meeting and is unwilling to consider other alternatives.”) (citation omitted).

         IDEA requires that the placement be based on the IEP, and not vice versa. Spielberg v. Henrico Cnty. Pub. Schs., 853 F.2d 256, 259 (4th Cir. 1988). But while “IDEA guarantees a free appropriate education, it does not, however, provide that this education will be designed according to the parent's desires.” Shaw v. Dist. of Columbia, 238 F.Supp.2d 127, 139 (D.D.C. 2002). An IDEA procedural violation is redressable only when it denies parents meaningful participation in the IEP process or causes a deprivation of educational benefits. J.L. v. Mercer, 592 F.3d 938, 953 (9th Cir. 2009).

         In its decision, the ALJ directly addressed Plaintiff's predetermination argument and found that A.V. had not demonstrated that District predetermined his placement at Sierra.[A.R. at 1093-95.] The ALJ concluded that:

District here considered Student's request for placement at NewBridge. However, that school was initially unavailable and could not be offered. District later determined that Sierra would meet Student's needs, a fact to which Student has stipulated. District was not required to offer Parents' preferred placement. District engaged in a thorough discussion of Student's placement needs with Parents and their representatives at the January 23, 2015 IEP team meeting. There is no evidence that Parents' participation in that discussion was hindered in any way. The decision to ...

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