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K.M. v. Tehachapi Unified School District

United States District Court, E.D. California

May 7, 2018

K.M. a minor, by and through her parent and guardian ad litem, Brenda Markham; BRENDA MARKHAM, Plaintiffs,




         Pending before the Court is Defendants' motion to dismiss Plaintiffs' Second Amended Complaint ("SAC"). The SAC alleges K.M., who is a 9-year-old autistic child, was prescribed 40 hours per week of Applied Behavior Analysis ("ABA") therapy by her pediatrician, to be administered by a trained ABA provider. Plaintiffs allege K.M.'s school in the Tehachapi Unified School District (the "District"), refused to allow an insurance-funded therapist to accompany K.M. during school to provide the prescribed therapy. Plaintiffs contend the District's denial was discrimination on the basis of K.M.'s disability violating the American's with Disabilities Act of 1990 ("ADA"), Title V of the Rehabilitation Act of 1973 (the "RA"), the California Unruh Civil Rights Act, and violating Sections 1983 and 1985 of Title 42 of the United States Code. Defendants seek dismissal of Plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6) arguing Plaintiffs have failed to exhaust administrative remedies required under the Individuals with Disabilities Education Act ("IDEA"), mandating dismissal of Plaintiffs' ADA and RA claims, and that all Plaintiffs' claims are otherwise insufficiently pled.

         For the reasons set forth below, Defendants' motion to dismiss Plaintiffs' complaint is GRANTED in part and DENIED in part.


         K.M. is a 9-year-old girl with autism; she has average intelligence, but due to her autism, she has difficulty with verbal language skills and acquiring socially acceptable means for expressing emotions such as fear, frustration, anger, her desire for something, or sadness. (SAC, ¶ 1.) She also has deficits in her ability to recognize danger or unsafe circumstances, she has only recently begun speaking, and is still learning to communicate commensurate with her cognitive ability and chronological age. (Id.) When K.M. was diagnosed with autism, she received ABA therapy through her insurance or through Kern County in the home setting. (Id., ¶ 3.) This therapy consists of a treatment plan implemented by a trained therapist who works one-on-one with K.M. to address specific developmental and social behavioral goals. (Id. ¶ 5.) The therapy uses positive reinforcement when K.M. displays appropriate behaviors, and specific pre-determined non-responses when K.M. displays maladaptive behaviors. (Id.)

         K.M. began attending the District's schools in preschool, and the District has always acknowledged she is eligible for special education under the IDEA due to her autism. (SAC, ¶ 2.) Since entering school, K.M. has sought the provision of ABA treatment through the District for the school setting, pursuant to her asserted right under the IDEA, but the District has consistently denied this request. (Id., ¶ 6.) K.M's insurance has denied coverage for ABA treatment in the school setting, asserting it is the financial obligation of the District to fund and provide this therapy. (Id.) For only a short time between November 2014 and February 2015, the District provided funding for K.M.'s ABA therapist to attend school with K.M. (Id. ¶ 7.) However, this was only in response to K.M. ingesting another child's narcotics seizure medication while at school without ABA treatment and supervision. (Id.) The District-provided ABA treatment was discontinued in February 2015 when the District insisted that K.M. be removed from school and placed in a completely segregated autism program in Bakersfield without 1:1 ABA therapy. (Id., ¶ 8.) K.M. successfully litigated this removal issue and was not moved to the segregated facility in Bakersfield; but, the District continued its refusal to provide any 1:1 ABA therapy. (Id.)

         In 2016, funding for the ABA treatment was approved by K.M.'s insurance company, as prescribed by K.M.'s treating pediatrician. (SAC, ¶ 9.) The District denied K.M.'s request for her ABA therapist to provide treatment during school without any discussion by K.M's IEP (Individualized Education Program) team. From August 2016 to June 2017, K.M. was kept home from school so that she could receive the doctor-prescribed 40-hour-per-week ABA therapy.

         K.M. pursued her administrative remedies available under the IDEA to challenge the District's 2016 refusal to permit her insurance-funded therapist to accompany K.M. at school. K.M. claimed that not only did the refusal interfere with her educational opportunities under the IDEA, but it also interfered and discriminated against her by precluding her basic access to the school under the RA, the ADA, and the Unruh Civil Rights Act. (SAC, ¶ 43.) When these claims were presented to an ALJ pursuant to administrative processes under the IDEA, the District argued the ALJ had no jurisdiction to hear any of the claims because, at their core, they involved medical access issues rather than the provision of a FAPE. (Doc. 20, p. 28 ("Student's case is fundamentally about access based on a medical accommodation, this is a question under these cope of Section 504 and the ADA, as such, OAH has no jurisdiction to hear the matter.").)

         After additional briefing was permitted by the ALJ following the Supreme Court's decision in Fry v. Napoleon Community Schools, the ALJ concluded he had jurisdiction over the two issues then pending in the case that involved the provision of a FAPE: (1) Did the District deny Student a FAPE by interfering with her parents' right to participate in the IEP process when it did not allow Student to receive ABA treatment as prescribed by Student's doctor?'; and (2) Did the District deny Student a FAPE by failing to include a health plan in Student's IEP allowing for the provision of ABA treatment at school as prescribed by Student's doctor? The ALJ concluded, however, that he did not have jurisdiction to hear K.M.'s claims under the ADA, the RA, the Unruh Act, or the Section 1983 or Section 1985 claims. After the pre-hearing conference, the ALJ issued an order identifying only the first issue for hearing: whether the District denied Student a FAPE by interfering with her parent's right to participate in the IEP program process when it did not allow Student to receive ABA treatment at school as prescribed by Student's doctor.

         After a hearing on the single remaining issue, the ALJ found K.M's parents' rights to participation in the IEP process were violated, and the District was ordered to hold an IEP meeting for the purpose of openly and honestly discussing and considering the ABA prescription and K.M.'s mother's request that the District allow the ABA insurance-funded aide to accompany Student on campus. (SAC, ¶ 53.) K.M. did not appeal this ALJ decision, ostensibly because Plaintiffs were the prevailing parties.

         Plaintiffs then instituted suit in this Court in October 2017, pursing the claims under the ADA, the RA, the Unruh Civil Rights Act, and 42 U.S.C. §§ 1983 and 1985 which the ALJ had dismissed for lack of jurisdiction during the administrative process.


         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal under Rule 12(b)(6) is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim upon which relief may be granted, the Court accepts as true the allegations in the complaint, and construes the pleading in the light most favorable to the party opposing the motion. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

         Under Rule 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556).

         While Rule 8 does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. In practice, “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562. In other words, the complaint must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim. To the extent the pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted).


         Both parties submitted portions of the Administrative Record for the proceedings held before the Office of Administrative Hearings ("OAH"). Defendants expressly seek judicial notice of the Administrative Law Judge's April 19, 2017, order on Plaintiffs' claim the District failed to provide a FAPE to K.M. by interfering with K.M.'s mother's right to participate in the IEP process when the District denied Plaintiffs' request for ABA therapy during school by an insurance-funded ABA therapist. (Doc. 15-1.) In support of their opposition brief, Plaintiffs submit the District's brief filed with the ALJ on January 27, 2017, that argued the OAH lacked jurisdiction over Plaintiffs' claims, and specifically Plaintiffs' claims under Section 504 of the Rehabilitation Act and the ADA. (Doc. 20, Exhibit A, pp. 27-37.)

         Federal Rule of Evidence 201 permits a court to take judicial notice of facts not subject to reasonable dispute and "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). A court may take judicial notice of records and reports of administrative bodies. Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S.104 (1991). When courts take judicial notice of administrative records, however, such notice is limited to the existence of the documents themselves including the findings therein, and not the contents of the documents for the truth of the matters asserted. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001).

         Beyond the two documents submitted by the parties, the Court also ordered the parties to produce additional portions of the Administrative Record to provide a complete context for the documents submitted by the parties and to show what was argued to, and decided by, the ALJ with regard to Plaintiffs' RA and ADA claims. (See Docs. 23, 24.) There is no dispute these documents are accurate and complete copies of what was submitted to and decided by the ALJ. These documents are relevant and will be judicially noticed for their existence and what was decided by and argued to the ALJ, but are not noticed for the truth of the matters asserted therein.

         V. ANALYSIS

         K.M. claims the District's refusal to permit her insurance-funded therapist to accompany her at school and provide therapy in that environment pursuant to her pediatrician's medical prescription discriminated against her on the basis of her disability under the RA, the ADA, and California's Unruh Civil Rights Act; she also seeks damages for violation of her rights under 42 U.S.C. §§ 1983 and 1985. Defendants argue K.M. has failed to exhaust her administrative remedies to state claims under the RA or the ADA. Moreover, Defendants argue, even to the extent the claims are properly exhausted, all K.M.'s claims are insufficiently pled.

         A. Exhaustion of Administrative Remedies

         Congress passed the IDEA to ensure that all children with disabilities have access to a FAPE that meets their unique needs and prepares them for further education, employment, and independent living. 20 U.S.C. § 1400(d). Disputes between school districts and parents about implementation of a FAPE for individual students are subject to the administrative procedures outlined in Section 1400 of Title 20 of the United States Code. Only upon conclusion of these administrative procedures may an aggrieved party file an action in state court or district court. 20 U.S.C. § 1400(i)(2)(A).

         The IDEA, however, is not the only statute pertaining to children with disabilities in school settings. The prohibition of disability discrimination in the ADA and Title 5 of the RA overlap with the IDEA: (1) Title II of the ADA prohibits any "public entity" from discriminating based on disability; and (2) Section 504 of the RA prohibits discrimination based on disability in any ...

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