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E. M. v. Poway Unified School District

United States District Court, S.D. California

January 14, 2020

E.M., Plaintiff,
v.
POWAY UNIFIED SCHOOL DISTRICT, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART CROSS MOTIONS FOR SUMMARY JUDGMENT

          JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE

         Plaintiff E.M. (“E.M.”), by and through his parents (“E.M.'s Parents”), and Defendant Poway Unified School District (“the District”), filed cross motions for summary judgment under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-09, appealing a decision by Administrative Law Judge Clifford H. Woosley (“the ALJ”). (Doc. Nos. 26, 27.) The motions have been briefed and the court finds them suitable for submission on the papers and without oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the court: (1) affirms the ALJ's decision that the District failed to make a sufficiently specific placement offer; (2) declines to reach the issue of whether private school is E.M.'s least restrictive environment; (3) affirms the ALJ's decision that E.M.s' individualized education program (IEP) was reasonably calculated to enable E.M. to make appropriate progress; and (4) affirms the ALJ's decision that the District did not unreasonably delay initiating a due process hearing. The parties' motions are, therefore, GRANTED IN PART and DENIED IN PART.

         I. FACTUAL BACKGROUND

         E.M. is a ten-year-old boy diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder (ADHD), and anxiety/mood disorder who qualifies for special education services. (Administrative Record (“AR”) at 271.)[1] E.M. began second grade for the 2016-2017 year in a general education class at Chaparral Elementary. (Id. at 193.) On September 8, 2016, a required annual meeting was held to review E.M.'s IEP with E.M.'s Parents. (Id. at 321.) The District offered to keep E.M. in a general education classroom, with some specialized academic instruction, occupational therapy, and speech and language services. (Id. at 341-42.)

         On October 6, 2016, E.M.'s Parents were called because he reportedly struck classmates and hit a staff member with a water bottle. (Id. at 729.) On October 13, 2016, E.M.'s Parents were called because he reportedly hit a school psychologist on the arm multiple times and pounded on his classroom door trying to get in. (Id.)

         On October 17, 2016, a meeting was held at E.M.'s Parents' request. (Id. at 348.) E.M.'s Parents shared their concerns including, inter alia, that E.M.'s behavior was interfering with his education, that he was exhibiting behaviors similar to those in kindergarten and first grade, and that being sent to the principal's office was reinforcing his behavior. (Id.) They also requested that the District develop a behavior intervention plan (BIP) and provide a one-on-one aide to implement the plan and promote E.M.'s safety. (Id.) The District did not agree to the aide, but agreed to conduct (1) a functional behavior assessment to determine the functions E.M.'s negative behaviors served and how those functions could be more appropriately met, and (2) a special circumstances independence assessment to evaluate the benefit of a one-on-one aide. (Id. at 177, 366.) On October 20, 2016, E.M. was sent home for reportedly throwing balls at students and hitting a student with a book. (Id. at 728.)

         On October 27, 2016, a meeting was held during which E.M.'s Parents were presented with a draft BIP, but declined to review it “due to parent's desire to have the BIP written by a member of the behavior support team after the completion of [the functional behavior assessment].” (Id. at 358.) Due to a “concern for [E.M.'s] safety, and other children's safety, ” E.M.'s Parents again requested an aide, at least on a temporary basis, until the functional behavior assessment could be completed. (Id. at 359.) The District again declined to offer an aide, but agreed to consider it after the completion of the special circumstances independence assessment. (Id.) Again, the District offered to keep E.M. in a general education classroom, with some specialized academic instruction, occupational therapy, and speech and language services. (Id. at 341-42.) The District also offered an extended school year “based on [E.M.'s] regression and recoupment.” (Id. at 361.) E.M.'s Parents agreed.[2] (Id. at 365.)

         On November 9, 2016, E.M. was disciplined with a loss of privileges for causing, attempting, or threating injury. (Id. at 728.) The disciplinary report states:

[E.M.] entered the classroom and started bullying another student by trying to grab his papers and pencils. The other student tried to cover up his items with his arms and [E.M.] proceeded to pry the student's arms open. The student was holding a pencil and it scratched [E.M.] on the arm because [E.M.] was grabbing the student's arms. In return, [E.M.] grabbed the pencil and intentionally scratched the student with it.

(Id.)

         On December 15, 2016, the District completed the functional behavior assessment, (id. at 373-86), and special circumstances independence assessment, (id. at 366-72). A meeting was held to discuss the assessments during which it was agreed to develop a BIP. (Id. at 387.) Based on the assessment, the District recommended that a one-on-one aide in a general education class would not be sufficient support for E.M. (Id.) The parties agreed to discuss the recommendation after a proposed BIP was reviewed. (Id.) The parties discussed placing E.M. in a special day class for children with autism spectrum disorder at Westwood Elementary.[3] (Id.) E.M.'s Parents wanted to try to implement the BIP in E.M.'s general education class with an aide. (Id.) The District agreed to provide “additional classroom support” in E.M.'s current class for a 30-day trial period. (Id.) E.M.'s Parents agreed. (Id. at 388.) The following day, E.M. was disciplined with a loss of privileges because he reportedly pinned another student to the wall and threatened to hurt him. (Id. at 727.)

         In January of 2017, E.M. was disciplined multiple times. On January 10, 2017, E.M. was suspended after he came into an office, kicked one of the adults, tried to lock the office door, and began screaming. (Id. at 727.) On January 12, 2017, E.M. was counseled for running into the resource room and pushing and grabbing at another student's clothes while yelling. (Id. at 726.) He was also suspended for breaking a popsicle stick in half and saying “it's a knife, I'm going to kill you” and waiving the stick in students' faces. (Id.) On January 26, 2017, E.M. was sent home for running around campus, running into classrooms, banging on doors, grabbing three students, and disregarding directions of multiple adults. (Id.) On January 30, 2017, E.M. received an in-school suspension for pushing his aide, screaming in the office, and physically “going after” another student. (Id. at 725.)

         On February 1, 2017, E.M. was suspended for pushing and hitting his aide. (Id.) That same day, E.M.'s Parents agreed to place E.M. in the special day class at Westwood Elementary.[4] (Id. at 591.) The District agreed and E.M. was placed in the special day class beginning on February 6, 2017. (Id. at 592.) The District also agreed to provide “adult additional classroom support” for E.M. for 60 days to assist with the transition, as well as special education transportation services. (Id.) Notwithstanding his recent disciplinary incidents, on March 21, 2017, the parties met and agreed that E.M. was responding positively to his new class and school. (Id. at 395.)

         In May of 2017, E.M. was disciplined multiple times. On May 8, 2017, he was suspended for assaulting five people at the start of the day and repeatedly attempting to assault a first-grade student in another class. (Id. at 724.) On May 16, 2017, E.M.'s Parents were called because he got off the bus and ran away from his teachers, and slammed his body into teachers and aides throughout the day. (Id.) On May 17, 2017, E.M. was suspended for repeatedly assaulting staff. (Id. at 723-24.) On May 24, 2017, E.M. was disciplined with loss of privileges for repeatedly grabbing and shaking a student. (Id. at 723.)

         On September 5, 2017, at the beginning of his third-grade year in Westwood's special day class, E.M. was suspended for reportedly running through eight classes during instruction, assaulting one student, threatening further assault, and running off campus. (Id.) On September 6, 2017, the parties met to develop E.M.'s IEP. (Id. at 598.) Again, notwithstanding his recent disciplinary incidents, the parties agreed that “at this point [E.M.] is not displaying a lot of autism characteristics at school and is doing well socially and pragmatically at school, at this time.” (Id. at 638.) E.M.'s Parents expressed concern regarding closing a gap in his reading and writing. (Id.) Due to time constraints and a need to complete assessments, the parties agreed to reconvene later to complete the IEP. (Id.)

         On October 16, 2017, a District occupational therapist completed a school based-occupational therapy evaluation. (Id. at 643.) On October 24, 2017, Ms. Cummings, a school psychologist, completed an educationally related mental health services assessment (“ERMHS assessment”). (Id. at 398.) On October 25, 2017, Ms. Klock, another school psychologist, completed a pyscho-educational assessment report. (Id. at 652.) Ms. Cummings' and Ms. Klock's assessments listed 14 recommendations for controlling E.M.'s negative behaviors. (Id. at 408-09, 675.) On October 25, 2017, the parties met to continue discussing E.M.'s IEP. (Id. at 641-42.) The parties developed goals related to reading, writing, communication, behavior, social-emotional goals, and fine motor skills, (id. at 94-96), but due to time constraints, the IEP was not completed and the parties agreed to reconvene later, (id. at 642).

         On December 14, 2017, the parties met to continue discussing E.M.'s IEP during which E.M.'s special education teacher, Ms. Romero, gave a report. (Id. at 676.) The meeting notes state:

[Ms. Romero] shared behavior data regarding his behavior (non-compliance, elopement, aggression) [and that] there has been an increase in aggression duration, and frequency. It is noted that there are increases and decreases, however, despite the many interventions, supports, and strategies, the patterns of behavior are not decreasing, they are at a maintenance level with very [few] demands. It was noted by [Ms. Romero] that with increases in demands then his behavior increases. His aggressive behavior is not really with intent to hurt someone, however the actions could hurt others or himself, it will necessitate adult attention, and there are safety concerns. [Ms. Romero] shared that his behavior impacts the learning of the other students as well. [Ms. Romero] reported a recent incident at an emergency drill, despite frontloading, and this drill occurring previously. He was very dangerous to the point that the class could not hear the call for the class to evacuate the room. She also noted that there are times that he can be completing a preferred activity and then begin attention seeking behavior which can then move to aggressive behavior. It was also noted that with his behaviors, 100% of them are non-compliance.

(Id.) In order to meet his goals, the District offered the following special education services: (1) specialized academic instruction for five hours per day; (2) individual counseling for 10 hours per year; (3) individual speech-language therapy for 15 hours per year; (4) individual occupational therapy for 15 hours per year; (5) an extended school year (to include specialized academic instruction for four hours per day, counseling for 15 minutes per week, speech language therapy for 20 minutes per week, occupational therapy for 20 minutes per week, and additional classroom support for four hours per day). (Id. at 96-97.) The parties agreed to develop a BIP to deal with E.M.'s non-compliance, aggression, and elopement. (Id. at 97.)

         At this December 14, 2017 meeting, the District also “recommended, ” for the first time, placing E.M. in a private school[5] and specifically recommended two private schools. (Id. at 676-77.) The record of the meeting states:

[E.M.'s program specialist] presented program options and that the school team has implemented many various resources, supports, and interventions, and that his access to typical peers is very limited currently due to behavior and safety concerns. Team discussed current level of behaviors and a need to move to a more supportive environment to address his behavior needs. School team is recommending placement in a Non-Public School for this purpose. The team discussed the process for this, and [the program specialist] and [Ms. Klock] provided information about Non-Public Schools in general, with specific recommendations for Springall Academy and San Diego Center for Children. Transportation would be provided. Parent was provided with Release of Information forms, which is necessary for the process of referrals to the schools. Parent will take them home to review with her husband, and will contact [E.M.'s program specialist] regarding their decision. . . .
[O]ffer of [free appropriate public education] is placement in the [special day] class at [Westwood] until the next IEP meeting which will be scheduled after we receive word from the parents regarding the NPS process[.]

(Id.) At the meeting, E.M.'s Parents agreed that the special educational services and goals could be implemented immediately, but did not consent to placing E.M. in a private school. (Id. at 97, 677.)

         On January 29, 2018, the parties met to continue discussing E.M.'s IEP. (Id. at 678.) Ms. Klock reported that she tried recommendations from the ERMHS assessment, but E.M.'s behaviors only increased. (Id.) The parties agreed to conduct another ERMHS assessment. (Id.) The record of the meeting states “a change of placement is still being offered due to [E.M.'s] behavior needs, and that he needs an environment that would provide more behavioral supports than are available in his current placement. . . . The [District's] offer of [free appropriate public education] is placement in a Non-Public School, start date would be determined[.]” (Id. at 679.) E.M.'s parents “stated [they] would like to move forward with the [annual review of E.M.'s IEP] but not . . . . a change in placement to a Non Public School.” (Id. at 678.)

         In February of 2018, E.M. was disciplined multiple times. On February 5, 2018, E.M. was suspended. (Id. at 722.) The disciplinary report states:

[E.M.], on 2/05/18, holding plastic knives in both hands, attempted to stab another student. He then proceeded to kick other students, the classroom teacher and threatened to hit both the teacher and the principal. In addition, [E.M.] tore up the work of other students, damaged classroom furniture, destroyed printed curriculum and destroyed classroom decorations

(Id.) On February 13, 2018, E.M.'s Parents were called because he eloped from class and attempted to trip students. (Id. at 722.) On February 14, 2018, E.M.'s Parents were called because he destroyed another student's belongings and attempted to leave campus. (Id. at 721-22.) On February 16, 2018, E.M.'s Parents were called because he grabbed and tackled classmates then ran around the school. (Id. at 721.)

         In March of 2018, E.M. was disciplined multiple times. On March 1, 2018, E.M.'s Parents were called because he hit himself, yelled and screamed at classmates, and attempted to trip another student. (Id.) On March 2, 2018, E.M. was suspended for causing, attempting or threatening injury and terroristic threats. (Id. at 720.) The disciplinary report states:

[E.M.], on 2/28 said, “Can I blow up the whole school?” Beginning at 8:45AM and repeated four times.
On 3/1 he was self injuring - hitting bare leg with ruler repeatedly, saying there was a bug on him, was assured there was no bug and continued - red mark that eventually faded. At 11:30 the same day he said, “I want to blow up the whole school.”
On 3/2 the student said, “I have a bomb. I'm going to blow up the classroom. This is half TNT and half C4; I set the bomb to go off at 12 o'clock. I hid a bomb. Haha. I hid a bomb in the classroom.”
. . . .
Assistant Principal called the parent and described the incident to him and explained that [E.M.] was suspended for 3 days. Parent was also notified that the police were called and would be performing a threat assessment [as required by law].

(Id.) On March 16, 2018, E.M.'s Parents were called because he ran around class attempting to bother another student and called the teachers names. (Id. at 719.) On March 20, 2018, E.M. was “detained in office” for putting his hands on another student and knocking down the toys the student was playing with. (Id.) On March 21, 2018, E.M.'s Parents were called because he threw his backpack at another student. (Id.) On March 26, 2018, E.M. was “detained in office” for running from the bus to class, running from the class when presented with morning work, attempting to leave campus, and running through classrooms yelling and causing a lockdown. (Id. at 718.) On March 28, 2018, E.M. was disciplined with a loss of privileges for running from class, entering other classrooms yelling, and causing a lockdown of the school. (Id.) On March 29, 2018, E.M. was “detained in office” for attacking a classmate and running around the school for 45 minutes. (Id. at 717.)

         On March 16, 2018, a third school psychologist, Ms. Valencia, completed a second ERMHS assessment. (Id. at 680.)

         In April of 2018, E.M. was disciplined multiple times. On April 2, 2018, E.M. was “detained in office” for running from class and around campus causing rooms to be locked. (Id. at 717.) On April 3, 2018, E.M. was “detained in office” for running around campus and targeting certain classrooms which were locked for safety. (Id. at 716.) On April 17, 2018, E.M. was counseled for running through classrooms and disrupting instruction. (Id.) On April 18, 2018, E.M. was “detained in office” and counseled for running around campus and disrupting other classrooms. (Id.) On April 26, 2018, E.M. was suspended for threatening to hit another student while riding the bus and threatening to evacuate the bus through the emergency exit.[6] (Id. at 715.)

         On May 2, 2018, the District completed an assessment to determine whether E.M.'s behaviors resulting in suspensions on September 5th, February 2nd, March 2nd, and April 26th were manifestations of his disability. (Id. at 703-05.) The report includes a section titled “teacher observations” which states:

Teacher reports that [E.M.] climbs trees/fences/furniture, yells out of anger at peers/adults, and screams high-pitched directly in peers' ears. [E.M.] argues with staff and name-calls staff/peers, grabs staff legs/tries to trip them, and head-butts teachers in their mid-section. [E.M.] elopes through campus while yelling (through classrooms), and has made attempts to leave campus. [E.M.] takes materials from students, shakes their bodies, laughs in their face, and tackles them, all of which occur unprovoked. [E.M.] teases peers, falsely accuses peers/adults of things, and threatens students verbally/physically.
[E.M.] erases student work, intentionally distracts peers from working, and throws away their work/personal items. [E.M.] refuses to get on/off the bus, gets out of his seat while the bus is in motion, physically/verbally targets peers on the bus, and threatens to open the emergency exits. [E.M.] engages in property destruction, uses technology without permission, throws objects at peers/adults, charges student with “sharp” Play-Doh tool, attempts/threatens to bite others, disrupts safety drills, hits his head with materials, hits his bare legs with the side of a ruler and says there are bugs on him, trips peers while they are running on the track and in class. [E.M.] has dug under the school fence to elope from school, runs/hides in the bushes/behind portables/sheds, verbally threatens others saying things like, “I am going to get you, ” “Can I blow up the school” and “I have a bomb.”

(Id. at 704.) The report also includes a section for “parent input” which states:

The function of [E.M.'s] negative behaviors (including those resulting in the suspensions) were primarily to avoid and escape work or the classroom environment. Avoidance of school work is a manifestation of his disability (ADHD). Also at least one of the suspensions was a direct result of the district's failure to implement [E.M.'s] IEP.

(Id.) The report concludes that E.M.'s behavior was caused by or had a direct and substantial relationship to E.M.'s disability and was not the result of the District's failure to implement the IEP. (Id. at 704-05.) E.M.'s Parents agreed that E.M.'s conduct was a manifestation of his disability, but disagreed that it was not the direct result of the District's failure to implement E.M.'s IEP. (Id. at 186.)

         On May 3, 2018, the parties met and the District again offered placement at a private school, as well as individual counseling services. (Id. at 707-08.) Ms. Valencia shared the results of the ERMHS assessment and recommended a trial of the counseling services for 30 minutes per week in place of the counseling E.M. was receiving at the time. (Id. at 707.) The District also offered to provide E.M. with an aide while riding the bus and E.M.'s Parents agreed. (Id.) The record of the meeting states “[the program specialist] reviews offer of [free appropriate public education] to be placement and it continues at Non-Public School[.]” (Id. at 708.)

         In May of 2018, E.M. was disciplined several more times. On May 15, 2018, E.M. was suspended for assaulting school staff and damaging school property. (Id. at 715.) On May 21, 2018, E.M. was disciplined with a behavior contract and loss of privileges for running around the school, being aggressive toward his classmates, and causing other students to be evacuated from the room. (Id. at 714.) On May 23, 2018, E.M. ...


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