United States District Court, E.D. California
ORDER RE: J.F.'S REQUEST FOR ADDITIONAL TIME AND
THE DISTRICT'S STATUS REPORT (Docs. 49, 50)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
April 26, 2017, the District filed an ex parte status report,
in essence, to complain that J.F., through his guardian ad
litem, refuses to dismiss the lawsuit despite the completion
of the settlement agreement. (Doc. 49) In response, the
guardian ad litem filed an ex parte request for the Court to
extend the deadline by which the dismissal must be filed.
(Doc. 50) Each side believes that other party is in the wrong
but not, apparently, wrong enough to file a properly noticed
motion to dismiss or a properly noticed and scheduled motion
to extend the dismissal deadline.
what the Court has gleaned, the guardian contends that the
District is thwarting the settlement agreement because it
fails to implement the recommendations of Dr. Ballinger-the
vision evaluator. (Doc. 50-1 at 3) The District contends that
it has no intention of failing to implement Dr.
Ballinger's recommendations and that the IEP team
“discussed and considered these findings to determine
J.F.'s unique needs.” (Doc. 49 at 1) The guardian
counters by reporting that the District “would not
allow the [IEP] Team to discuss the specific recommendations
by Dr. Ballinger” and “District has refused to
specifically address Dr. Ballinger's recommendations for
Vision Therapy until all other issues had been addressed by
the team, causing a significant delay in services to
JF.” (Doc. 50-1 at 2)
the guardian's position is contradicted by her earlier
admission in the parties' stipulation that,
Pursuant to Paragraph 6.6 of the settlement agreement, the
Parties met on February 23, 2017, for an individualized
education program ("IEP") team meeting during which
Dr. Ballinger presented her vision therapy IEE findings in
person. However, because review of Dr. Ballinger's vision
therapy IEE was not the only topic for this IEP team meeting,
the team was not able to complete the full IEP in one day.
Therefore, the team has scheduled May 8, 2017, which is the
first available mutually agreeable date, to complete this IEP
team meeting. Nevertheless, Dr. Ballinger did complete the
presentation of her vision therapy IEE findings on February
23, 2017 and will not participate in the continued IEP team
meeting scheduled for May 8, 2017.
46 at 2, emphasis added) The stipulation recited that the
District had not yet paid Dr. Ballinger's invoices or
reimbursed the parents for amounts paid by them for
“the vision therapy IEE.” Id. Thus, the
stipulation continued, “the Parties respectfully
request that this Court retain jurisdiction of this matter
until the District has effected payment for Dr.
Ballinger's vision therapy IEE.” Id. at 3.
The Court granted the stipulation and continued the deadline
by which the stipulated dismissal was to be filed to today,
April 28, 2017. (Doc. 48)
the guardian has provided the minutes of the IEP Team meeting
from February 2017. (Doc. 50-3) The minutes detail that, in
fact, Dr. Ballinger's recommendations were
discussed and, indeed, Dr. Ballinger herself was present and
summarized her opinions for the group. Id. at 2-3.
The minutes note,
[Dr. Ballinger] recommends that we build in visual breaks
especially as the day increases in length. Dr. Ballinger
shared that she thinks Dr. Suter and Mr. Gutcher should both
be involved with [J.F.]'s case as he transitions. Dr.
Ballinger shared we need to make sure there is better visual
contrast in our facilities . . . Dr. Ballinger shared that
Mom is going to talk with Dr. Suter about upgrading the
prisms in [J.F.]'s glasses to help. Dr. Ballinger shared
a note of appreciation for the skills of the aide that
currently works with [J.F.]. Dr. Ballinger shared that [J.F.]
tries to jump through the hoops but his body is so fatigued.
He can get little respites throughout the day and maybe we
can coax him back to the task but he doesn't have full
energy because he is so fatigued. Dr. Ballinger believes that
[J.F.] needs vision training to increase his awareness and
endurance. It was asked that visual breaks be defined and how
often they might be needed. Dr. Ballinger shared that it
depends- when [J.F.] really protests he should get up and
move around, maybe use a therapy ball (holding someone's
hand), maybe have him stand to get a different visual
perspective. Sometimes his tasks are just going through the
motions because he is fatigued. Those would be the times to
provide those breaks. Dr. Ballinger shared that she believes
all of the individuals who work with [J.F.] at school are
doing such a loving job with [J.F.]. The team discussed some
clarification on how [J.F.] navigates elevation drop-offs.
Dr. Ballinger shared that [J.F.] might see the drop off but
may not remember that the drop off is there once he gets to
it. Dr. Ballinger shared we need to give [J.F.] visual cues
so he has that reminder as he approaches those drop offs. She
believes his attentional issues are because he doesn't
always trust what he sees. Dr Ballinger had the opportunity
to watch [J.F.] have two vision training sessions with Dr.
Suter. Dr. Ballinger shared that visual cueing systems should
be incorporated into the classroom to get him to scan into
other areas. It is recommended by Dr. Ballinger that Dr.
Suter, Mr. Gutcher, and Mrs. Williams work together to get
[J.F.] transitioned to the next classroom. Dr. Ballinger
shared she was not able to complete the conventional tests
for figure ground. But things can be tried in a less
conventional setting. The more contrast you have the easier
it is going to be for [J.F.]. Mrs. Alcantar shared that from
the OT standpoint, it is looking at foreground versus
background. There is a visual motor competent in this as
well- the OT shared it could be attention, functionally in
the classroom it is difficult to determine if it is figure
ground that is affecting him. Dr. Ballinger shared it could
be a lack of depth perception. Dr. Ballinger shared that he
needs more contrast. Dr. Ballinger shared that she and Dr.
Suter have ideas that could be shared with the specialist
that work with him at school.
It was shared that [J.F.] hasn't had vision therapy for
the last year. It was asked why he hadn't made more
progress in these areas previously given that he had a fair
amount of Vision Therapy before that (close to 2 years). Why
hadn't he learned these skills with the amount of therapy
he has already had? Dr. Ballinger shared
that this is because he has had an increase in demands, he
has had some sophistication to his skills, he doesn't
always globalize this information, and because the demands
are more sophisticated, his visual systems need to get up to
speed. It was reiterated that there are more demands now.
It was asked of Dr. Ballinger what her recommendation is for
vision therapy. She shared that he should
have a variety of activities (fine motor, gross motor,
spatial, spatial judgment that are over the course of 45-60
minute sessions. In the past, it was discussed that if he
missed vision therapy the family would see results because he
would start to lose skills. Dr. Ballinger
shared that he opened up his visual field but he did
plateau and needed a break. Dr. Ballinger
shared she believes he needs to get back into vision
therapy because the time and demand of the classroom are
becoming more sophisticated. She believes
this will enable him to more appropriately meet his goals.
She shared that she believes that vision
therapy will help to get him back up to speed. It was
discussed that Dr. Ballinger has talked a
lot about length of day and it was shared that the team can
discuss the length of his kindergarten day. Our general
education kindergarten classes run a half day, we offer a
full day SDC for Kindergarten but, later in the meeting, the
team can discuss the recommended length of [J.F.]'s
Kindergarten day as part of the discussion about placement.
Mrs. Weissburg asked if Dr. Ballinger read the progress
report and if his vision affects these goals not being met.
Dr. Ballinger shared that [J.F.]'s
inconsistency of his visual system, his visual stability, how
he is addressing the task, his endurance, and his visual
field is closing down. At times this all interferes with his
ability to want to engage over the course of the day. His
body fatigues, he has such a level of inconsistency, and he
does not want to engage. He lets you know with his objection
behaviors such as pushing away or not being on task. His
system fatigue compiles over time and more stabilization of
his visual system will allow him to better stay on task,
remember, and visually engage at school.
Mrs. Weissburg asked what Dr. Ballinger saw that might be
auditory processing disorder. Dr. Ballinger
shared that when someone is talking in the
classroom, he doesn't always respond. But Dr.
Ballinger has a question about auditory ground. Mom
shared [J.F.] sometimes has difficulty following directions
at home- especially when it is loud or there is a lot of
background noise. Mom shared they have had [J.F.]'s
hearing checked ...