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S.H. v. Mount Diablo Unified School District

United States District Court, N.D. California

July 3, 2017

S. H., et al., Plaintiffs,


          JOSEPH C. SPERO Chief Magistrate Judge


         In this action, Plaintiff S.H. seeks judicial review of an administrative decision of California's Office of Administrative Hearings (“OAH”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Presently before the Court are cross-motions for summary judgment by S.H. and the Mount Diablo Unified School District. A hearing on the motions was held on June 2, 2017. Following the hearing, the parties filed supplemental briefs addressing the question of what remedy the Court should award if it found that S.H. was entitled to summary judgment with respect to any of the alleged errors on the part of the OAH. For the reasons stated below, the Court GRANTS Plaintiff's Motion for Summary Judgment (“Plaintiff's Motion”) and DENIES Defendant's Motion for Summary Judgment (“Defendant's Motion”). The parties have consented to the jurisdiction of the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(c).


         This case involves challenges to an Individualized Educational Plan (“IEP”) dated October 14, 2015 relating to the 2015-2016 school year. As of that date, S.H. was fifteen years old. AR 603-604. S.H. resides with his mother, Ms. Eleasha Partner (“Mother”) within the geographical boundaries of Mt. Diablo Unified School District (“Mt. Diablo”) and is eligible for special education under the category of speech and language impairment. AR 603. He has been eligible for special education since he was three years old. Id.

         During the 2014-2015 school year, S.H. attended ninth grade at Las Lomas High School (“Las Lomas HS”), in the Acalanes Union High School District (“Acalanes”). AR 605, 607. When he started ninth grade at Las Lomas HS, S.H. was receiving services pursuant to an IEP developed on February 27, 2014, when he was in eighth grade. Id. Acalanes held an annual IEP team meeting on March 25, 2015, in the spring of S.H.'s ninth grade year. AR 607. The IEP developed in connection with that meeting (“the March 25, 2015 IEP”) described S.H.'s levels of performance, set forth goals and proposed a transition plan. AR 609. It offered as accommodations “use of notes for tests/assignments when needed and appropriate; use of calculator when needed and appropriate; flexible seating on tests; extended time on class assignments/tests; instructions repeated/rephrased; preferential seating; prompting and refocusing; and speech to text as an option when applicable.” AR 610. It also offered specialized academic instruction for 50 minutes, one time each school day, language and speech services for 40 minutes a week (individual and group boxes were checked), college awareness for 30 minutes a month and career awareness for 30 minutes a month. Id. Mother did not consent to the March 25, 2015 IEP because she did not believe it met S.H.'s needs and did not sign it. AR 610, 778.

         In May 2015, S.H. was diagnosed with Autism Spectrum Disorder. AR 610. Around this time, Mother filed a due process complaint against Acalanes seeking an independent educational evaluation (“IEE”) at public expense. Id. That complaint was settled in June 2015, with Acalanes agreeing to pay for an IEE. Id. Mother selected Dr. Elea Bernou to perform the IEE and scheduled the evaluation to be conducted in the early fall of 2015, which was the earliest Dr. Bernou could complete it because she was already “booked” until the third week of August. AR 507, 610.

         Also in the spring of 2015, Mother began looking for other options for S.H. because she felt that his placement at Acalanes was not working. AR 788. Around April 2015, S.H. applied to Orion Academy (“Orion”), a state-certified non-public school in Moraga California, and he was accepted in May. AR 610-611. The tuition for the 2015-2016 school year was $33, 500. AR 611. Mother entered into a tuition contract with Orion and by July 7, 2015, she had paid $19, 230 in tuition, much of which S.H.'s grandmother had borrowed from her retirement fund to pay. Id. In November 2015 Mother entered into a payment plan for the remainder of the tuition, which was to be paid in installments in December 2015, February 2016 and March 2016. Id. To help pay for Orion and as part of an agreement with S.H.'s grandmother, Mother and S.H. moved to less expensive housing in Concord, California, in the Mt. Diablo Unified School District, on July 31, 2015. AR 612.

         S.H. began school at Orion on August 6, 2015, when Orion's school year began. Id. This was during the summer break after the school year had ended in Acalanes and before the public high school in Mt. Diablo (Mt. Diablo High School, or “MDHS”) had started. Id. At the recommendation of Dr. Kathryn Stewart, the executive director of Orion, S.H. was enrolled there as a ninth grader. AR 611-612.

         The first day of school at MDHS was August 26 or 27, 2015. AR 612. A day or two before that, on August 24 or 25, 2015, Mother filled out registration paperwork to enroll S.H. at MDHS. AR 615. She checked a box indicating that S.H. was in special education. Id. Mt. Diablo asked for a copy of S.H.'s most recent IEP and Mother provided a copy of the March 25, 2015 IEP without a signature page. Id. It appears to be undisputed that Mother did not alert anyone at Mt. Diablo at that time that she had not consented to the March 25, 2015 IEP. AR 615. Nor is there any evidence in the record that Mt. Diablo asked Mother to supply the signature page or if she had consented to the March 25, 2015 IEP.

         On August 25, 2015, Mother told the MDHS registrar that she had privately placed S.H. at Orion. AR 615. On August 27, 2015, Mother emailed several Mt. Diablo employees informing them that she had enrolled S.H. at MDHS and was requesting an IEP meeting to be conducted in October 2015. Id. She requested the October date so that Dr. Bernou's IEE would be complete by the time of the IEP meeting. AR 832. Apparently, MDHS employees believed that S.H. would begin attending MDHS at the commencement of school year, creating a schedule for him and initially marking him absent when he did not show up to school. AR 615-616. On September 4, 2015, the MDHS vice-principal, Nichole Hackett, contacted Mother to let her know that S.H. had a schedule at MDHS that included two special education classes and two classes supported by special education staff. AR 616. Mother responded that she wanted to wait and see what services MDHS would be able provide so she could compare them with the services being provided at Orion before moving S.H. to MDHS. Id.

         Dr. Bernou completed her written report on October 7, 2015. AR 617. Among other things, she recommended that S.H. receive 45 minutes per week of individual speech/language services and 45 minutes per week of group speech/language services. AR 257.

         On October 14, 2015, Mt. Diablo held an IEP team meeting in order to consider Dr. Bernou's evaluation and develop interim placement and services for S.H. for a 30-day period. AR 621. In attendance were Mother, Dr. Bernou, Case Manager Dr. Beth Dela Cruz, Ms. Hackett, and school psychologist Jennifer Steinbeck. AR 140. Because Mt. Diablo considered the meeting to be an interim IEP meeting, the team did not address S.H.'s goals. AR 1084. No general education teacher participated in the meeting, and Mother and Ms. Hackett signed a form stating, in part:

By mutual agreement between the parent/adult student, and designated representative of the local education agency, the presence and participation of the Individual Education Program team member(s) identified below is/are not necessary and has/have been excused from being present and participating in the meeting scheduled on 10/14/15 because (1) the member's area of the curriculum or related services is not being modified or discussed in the meeting or (2) the meeting involves a modification to or discussion of the member's area or related services and the member submitted, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

AR 144. Handwritten in the space left for listing the names of the missing team members was written: “Regular education teachers have been excused due to no definite class schedule.” Id.

         The IEP team decided to offer S.H. the services and placement in the March 25, 2015 IEP with some modifications based on Dr. Bernou's evaluation. AR 621. Under the heading “Offer of Services by MDHS” a list of bullet points described the services to be provided. AR 141. One of the bullet points states: “Speech and Language: 40 minutes a week” without any elaboration as to whether this instruction would be in a group or individual setting. Id. The IEP states that the team planned to hold another IEP team meeting “to give Mom time to further consider options - from MDHS and from Orion.” AR 142. Mother did not consent to the October 14, 2015 IEP (“Interim IEP”).

         On October 21, 2015, S.H.'s attorney sent a “Notice of Intent to Place at Orion Academy.” AR 348. That letter states that Mt. Diablo's “current offer of placement . . . is not appropriate.” Id. The letter further informed Mt. Diablo that S.H. would remain at Orion and that Mother would “seek reimbursement from the district for the costs of this appropriate program.” Id. The next day, Mother filed a due process hearing request with the Office of Administrative Hearings (“OAH”). AR 603.

         The following issues were raised in S.H.'s due process request:

Student's Issue I: Did Mt. Diablo commit the following procedural violations, which denied Student a free appropriate public education for the 2015-2016 school year:
a. failing to make a formal, specific written offer of [free appropriate public education (“FAPE”)] in the October 14, 2015 individualized education program document;
b. failing to include any goals in the October 14, 2015 IEP document;
c. only offering Student interim services in the October 14, 2015 IEP; and
d. failing to have all required IEP team members present at the October 14, 2015 IEP meeting?
Student's Issue 2: Did Mt. Diablo deny Student a FAPE in the October 14, 2015 IEP, designated as an interim IEP by Mt. Diablo, by failing to offer Student an appropriate placement?

AR 603-604. The OAH issued a decision on May 2, 2016 in which it found in favor of S.H. on issues 1.a and 1.d and in favor of Mt. Diablo on the remaining issues. AR 603-639.

         In the instant motions, each side seeks summary judgment on the issues on which it did not prevail in the administrative proceeding. In particular, S.H. asks the Court to hold on summary judgment that Mt. Diablo acted unlawfully when it completed an interim IEP that did not include any goals in October 2015 and that Mt. Diablo denied S.H. a FAPE by doing so. Mt. Diablo, in turn, asks the Court to hold that the interim IEP offer of speech and language services was sufficient (Issue 1.a) and that it was lawful for Mt. Diablo to hold the October 14, 2015 team meeting without the participation of a general education teacher (Issue 1.d).

         III. ANALYSIS

         A. Statutory Background

         Congress enacted the IDEA in order “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 and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). The IDEA defines “free and appropriate public education” as “special education and related services” that:

(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(9).

         The IDEA establishes a framework in which parents and schools engage in a cooperative process culminating in the creation of an IEP for every disabled student. 20 U.S.C. § 1414; Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). “Each 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. The IEP must be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley (“Rowley”), 458 U.S. 176, 207 (1982). Further, in order to provide special education services under an IEP, the school district must obtain the informed consent of the child's parents. 20 U.S.C. § 1414(a)(1)(D). Parents may also revoke consent to the receipt of special education services if they do so in writing. 34 C.F.R. § 300.9; Cal. Educ. Code § 56021.1.

         Under the IDEA, the IEP is developed by an “IEP Team.” See 20 U.S.C. § 1414(d)(1)(B). The IEP team includes “the parents of a child with a disability;” “not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);” “not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;” “a representative of the local educational agency;” “an individual who can interpret the instructional implications of evaluation results, who may be a member of the team” described above, “whenever appropriate, the child with a disability.” Id.; see also 34 C.F.R. § 300.321. The IDEA provides, however, that “[a] member of the IEP Team shall not be required to attend an IEP meeting, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.” 20 U.S.C. § 1414(d)(1)(C)(i). In the alternative, “[a] member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if . . .the parent and the local educational agency consent to the excusal; and . . . the member submits, in writing to the parent and the IEP Team, input into the development of the IEP prior to the meeting.” 20 U.S.C. § 1414(d)(1)(C)(ii). Under both of these provisions, the parent must agree in writing that the participation of the IEP team member is not required. 20 U.S.C. § 1414(d)(1)(C)(iii).

         The IEP “is a written statement for each individual with exceptional needs that is developed, reviewed, and revised in accordance with [state educational standards], as required by Section 1414(d) of Title 20 of the United States Code.” Cal. Educ. Code § 56345(a). It must include: 1) “[a] statement of the individual's present levels of academic achievement and functional performance . . .;” 2) “[a] statement of measurable annual goals, including academic and functional goals . . .;” 3) “[a] description of the manner in which the progress of the pupil toward meeting the annual goals . . . will be measured and when periodic reports on the progress the pupil is making . . .will be provided . . .;” 4) “[a] statement of the special education and related services and supplementary aids and services . . . to be provided . . . and a statement of the program modifications or supports for school personnel that will be provided” so that the student can attain annual goals; 5) “[a]n explanation of the extent, if any, to which the pupil will not participate with nondisabled pupils in the regular class” or activities; 6) “[a] statement of individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the pupil on state and districtwide assessments”; 7) “[t]he projected date for the beginning of the services and modifications” to be offered under the IEP; and 8) “[b]eginning not later than the first individualized education program to be in effect when the pupil is 16 years of age, or younger if determined appropriate by the individualized education program team, and updated annually thereafter . . .[a]ppropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment and where appropriate, independent living skills.” Id.; see also 34 C.F.R. § 300.320(a).

         Under the IDEA, “[a]t the beginning of each school year, each local educational agency, State educational agency, or other State agency, as the case may be, shall have in effect, for each child with a disability in the agency's jurisdiction, an individualized education program . . . .” 20 U.S.C. § 1414(d)(2)(A).

         The time allowed to complete an IEP depends on the student's circumstances. Under the California Education Code:

An individualized education program required as a result of an assessment of a pupil shall be developed within a total time not to exceed 60 days, not counting days between the pupil's regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent's written consent for assessment, unless the parent agrees, in writing, to an extension. However, an individualized education program required as a result of an assessment of a pupil shall be developed within 30 days after the commencement of the subsequent regular school year as determined by each local educational agency's school calendar for each pupil for whom a referral has been made 30 days or less prior to the end of the regular school year. In the case of pupil school vacations, the 60-day time shall recommence on the date that pupil schooldays reconvene. A meeting to develop an initial ...

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