J.B. v. Tuolumne County Superintendent of Schools

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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J.B., by and through his guardians ad litem, CASE NO.: 1:19-cv-00858-NONE-EPG

10 ADAM BILLIET and CORRIE BILLIET,

FINDINGS AND RECOMMENDATIONS

11 Plaintiff and Counter-Defendant, RECOMMENDING THAT THE DECISION

OF THE CALIFORNIA OFFICE OF

12 v. ADMINISTRATIVE HEARINGS BE

AFFIRMED IN PART AND REVERSED IN

13 TUOLUMNE COUNTY PART

SUPERINTENDENT OF SCHOOLS, et al.,

14 (ECF Nos. 37, 40)

Defendants and Counter-Claimants.

15 ORDER GRANTING MOTION TO

SUPPLEMENT THE RECORD

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(ECF No. 32)

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ORDER GRANTING UNOPPOSED

18 REQUESTS FOR JUDICIAL NOTICE

19 (ECF Nos. 38, 42)

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FOURTEEN DAY DEADLINE

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22 J.B., a minor, by and through his guardians ad litem, Adam Billiet and Corrie Billiet

23 (collectively “Parents”), appeals from an education due process hearing and decision under the

24 Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. J.B. contends that

25 the decision of the California Office of Administrative Hearings (“OAH”), issued by

26 Administrative Law Judge Tiffany Gilmartin (“ALJ”), erred in several ways and should be

27 overturned in part. The Tuolumne County Superintendent of Schools (“TCSS”) and Curtis Creek

28 Elementary School District (“District”) have filed a cross-appeal, also contending that the

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1 decision issued by the ALJ erred in several ways and should be overturned in part.1 The Court

2 recommends that the ALJ’s decision be affirmed in part and reversed in part.

3 Also before the Court are the unopposed requests of TCSS and District (collectively, local

4 education agencies or “LEAs”) for judicial notice (ECF Nos. 38, 42), and J.B.’s motion to

5 supplement the record (ECF No. 32). The Court will grant the unopposed requests for judicial

6 notice and will also grant J.B.’s motion to supplement the record.

7 I. FACTUAL BACKGROUND

8 The following factual background is taken from the ALJ’s findings of fact, except as

9 otherwise specifically noted.

10 J.B. is a minor child who is eligible for special education and related services under the

11 primary category of emotional disturbance, and the secondary category of specific learning

12 disability. J.B.’s family moved to Tuolumne County and began residing within LEAs’ boundaries

13 in 2015, when J.B. was in first grade. At the time of the hearing before the ALJ, J.B. was eleven

14 years old and in fifth grade. He is now twelve years old and has completed his sixth grade year.

15 J.B. has had emotional and behavioral struggles from an early age, including extreme and

16 sudden violent behaviors since age five. (AR 1820-34, 1835.) J.B. has exhibited significant

17 behavioral issues at both home and school and Parents have taken J.B. to see various mental

18 health professionals over the years. J.B. has been treated by a psychiatrist since 2013 for behavior

19 that includes eloping from both home and school, hallucinating that he is a spy or a detective,

20 making weapons out of available objects, seeing goblins, and hearing voices that cause him to

21 smear feces on walls. (AR 3153, 3157, 3172, 2173, 3178, 3186, 3411-15, 5308-10, 5318-22,

22 5682-83; 5689, 5834.) J.B. has been “5150’d”2 for dangerous, aggressive, and/or self-harming

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The parties’ cross-motions for summary judgment are before the Court on referral from now-retired Chief

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24 Judge Lawrence J. O'Neill (ECF No. 29).

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Being 5150’d refers to being taken into custody under California Welfare. & Institutional Code § 5150,

which provides:

26 When a person, as a result of a mental health disorder, is a danger to others, or to himself or

herself . . . , a peace officer [or designated professional] may, upon probable cause, take, or cause

27 to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and

crisis intervention, or placement for evaluation and treatment in a facility designated by the county

28 for evaluation and treatment and approved by the State Department of Health Care Services.

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1 behavior3 at least fourteen times, with the most recent in January 2019. (AR 3153, 3157, 3164,

2 3172, 3173, 3178, 3186, 3411-15, 3842-46, 3848-50, 5308-5310, 5318, 5585-86, 5682, 5683,

3 5689, 5690, 5834-36.).

4 A. Fall 2016 Semester

5 Prior to the start of the 2016-17 school year, J.B. ran away from Parent, and Parent

6 contacted law enforcement, who took J.B. into custody in restraints and to the hospital for a

7 psychiatric evaluation. J.B. was hospitalized for one week. Once released, J.B. was enrolled at

8 Curtis Creek Elementary, a comprehensive elementary school within the District. At the end of

9 the first day of school, when J.B.’s mother came to pick him up, he refused to get into the car and

10 instead eloped from the school site with his mother and the principal in pursuit. J.B. attacked the

11 principal with a stick and bit him. Following this attack, Parents were informed that J.B.’s

12 behavior was not suitable for a comprehensive elementary school and J.B. was placed at the

13 Nexus program. The Nexus program is a structured behavioral support program intended to help

14 students with behaviors that interfere with their learning. The program provides students with

15 behavior and social emotional supports in a specialized classroom on a general education campus.

16 On December 2, 2016, J.B. had a behavior incident on the school bus during which he

17 required numerous prompts for redirection, spit at another student, and was banging the seat belts

18 together. Parents received a warning letter from the transportation coordinator. J.B. was also

19 suspended on December 15, 2016, for jumping on another student, knocking the student over,

20 throwing a rock at staff, and running away.

21 An individualized education plan (“IEP”) team meeting was held on December 2, 2016.

22 J.B. was found to qualify for mental health services and the IEP team offered 180 minutes

23 monthly of individual counseling to support positive peer interactions and emotional regulation.

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Cal. Welf. & Inst. Code § 5150(a).

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J.B.’s self-harming behavior includes suicidal conduct from a very early age. At six years old, J.B.

attempted suicide “by tying a string around his throat, pulling a bookshelf down on himself, and sticking a pencil in

26 his ear to poke out his brain.” (AR 3758, 3785, 4005.) At seven years old, J.B. threatened to kill himself and everyone

around him, cut his arms with an arrowhead-like stick, and attempted to cut anyone who came into contact with him.

27 (AR 3365, 3842.) Also at seven years old, J.B. drank hand sanitizer and put his tongue in an electric socket. (AR

3843, 4284.) At nine years old, J.B. threatened to jump off a ledge, but his father was able to stop him. (AR 3320.) At

28 ten years old, J.B. threatened suicide by jumping out of second story window. (AR 3481, 3846.)

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1 Parent consented to this IEP offer on December 12, 2016.

2 B. Spring 2017 Semester

3 J.B.’s annual IEP meeting was convened on January 4, 2017. The meeting was continued to

4 January 31, 2017. The team reviewed assessment data from J.B.’s psychoeducational assessment.

5 J.B.’s verbal comprehension and visual spatial were in the average range, J.B.’s fluid reasoning

6 was below average, and he had deficits in his working memory and processing speed. J.B. was

7 identified as clinically significant in all areas of executive functioning. J.B.’s academic

8 assessment also revealed math deficits in calculation. Both raters on his Behavior Assessment

9 System for Children-3rd Edition identified J.B. as clinically significant in hyperactivity,

10 aggression, conduct problems, depression, typicality, and withdrawal. Parent provided private

11 assessment results ruling out Autism as a diagnosis for J.B.

12 The IEP team identified writing, math, fine-motor skills, bilateral coordination, and social

13 skills as areas of need. J.B.’s executive function deficits were an unaddressed area of need. LEAs

14 knew of J.B.’s need for redirection, aggressive outbursts, and frequent prompting by the

15 classroom aide to complete his work but failed to provide any goals in this area. The IEP team

16 developed an executive function goal of keeping J.B.’s work space orderly but did not develop

17 goals to address his other areas of executive functioning need.

18 The occupational therapist reviewed J.B.’s three occupational therapy goals and found that

19 J.B. met both fine motor goals but did not meet his bilateral coordination goal of being able to

20 shoot a basketball through a standard height hoop 50 percent of the time. The school district team

21 recommended discontinuing occupational therapy. J.B. continued to have fine and gross motor

22 needs.

23 The IEP team also determined J.B. did not need assistive technology services. However, on

24 February 24, 2017, the IEP team agreed J.B. needed the assistance of an educational tablet that

25 Parents were required to provide. Despite this, no assistive technology assessment was

26 recommended for J.B.

27 J.B.’s previous IEP contained a total of seven goals. By the January 31, 2017 IEP, J.B. met

28 only three goals: the two fine motor goals and a goal in respecting personal space. The IEP team

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1 found that J.B.’s behavior impeded his learning and that of others. Parent raised a concern about

2 J.B. being restrained on the bus due to his behavior. The IEP team determined J.B.’s behavior

3 could be managed through classroom reinforcement systems and mental health support and

4 developed two new behavior goals to address positive peer interactions and managing anger,

5 stress, and frustration. Both goals were set in a counseling setting, not the classroom, and would

6 be addressed by the mental health clinician.

7 J.B.’s school-based mental health needs and goals were serviced by his mental health

8 clinician Jordan Reiser. Ms. Reiser obtained her master’s degree in psychology with an emphasis

9 in marriage and family therapy in 2009. Ms. Reiser completed the requisite 3000 practicum hours

10 to obtain a license as a marriage and family therapist in 2011. Ms. Reiser referred to herself as a

11 mental health associate. Ms. Reiser was familiar with J.B. She was aware of J.B.’s behavior

12 challenges and his active imaginary world. She wrote J.B.’s behavior goals without any assistance

13 from other staff or team members. She admitted that she was not the best at writing goals, and

14 that she wrote J.B.’s goals to be addressed/achieved in a counseling setting and not in a classroom

15 setting.4 (AR 4325.)

16 The IEP team offered J.B. placement in the Nexus program. The team developed 12 goals

17 for J.B. to work on over the next 12 months. One behavior goal addressed positive peer

18 interactions such as introductions, sharing, and starting a conversation with a 70 percent success

19 rate in two out of three trials in a counseling setting. Another goal addressed J.B.’s need to

20 regulate his emotions. This goal provided that J.B., in a counseling setting, would identify five

21 strategies for managing his own anger, stress, frustration, and anxiety 70 percent of the time in

22 two out of three trials as measured by the mental health clinician. Other goals included a number

23 sense goal, which required J.B. to add and subtract double digits up to 50 with 80 percent

24 accuracy, and a spelling goal of 80 percent accuracy from a fourth-grade sight list.

25 The IEP also offered services, supplementary aides, accommodations, and supports in the

26 classroom. The services offered included 120 minutes monthly of individual mental health

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Ms. Reiser testified at the hearing before the ALJ. The ALJ found that Ms. Reiser was familiar with J.B. and

28 his needs. The ALJ gave her testimony significant weight.

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1 counseling, which was a 60 minute per month reduction from the services J.B. was offered in

2 December 2016, and 204 minutes daily of specialized academic instruction. The supplementary

3 aids, accommodations, and classroom supports included collaboration between staff and parents;

4 a daily behavior chart to track behaviors; chunking of assignments; comprehension checks;

5 pairing verbal instruction with visual cues or schedules; providing J.B. with breaks; limiting

6 distractions in J.B.’s work area; the use of a token reward system; speaking to J.B. away from

7 peers in a calm voice; escorting J.B. to the bathroom and checking the bathroom facility prior to

8 and after use; and staff maintaining line of sight control over J.B. when on the track and staying

9 within arm’s reach when J.B. was on the blacktop area.

10 Parents consented to the January 31, 2017 IEP offer and did not request different or

11 additional goals, placement, services, or supports.

12 Within days after the January 31, 2017 IEP, J.B. had two behavioral incidents that resulted

13 in him being suspended from school. The first incident occurred when J.B. hit two other students

14 and the bus driver while riding the bus. He also hit his teacher and broke the classroom window

15 on the same day. This resulted in a one-day suspension.

16 The second incident occurred when J.B. returned from his first suspension. J.B. was

17 playing tag with other students when he hit three students and ran away from the playground. He

18 threw a rock at staff and ran away from staff while he continued to throw rocks. As staff

19 attempted to escort him off the playground, he attempted to bite staff and throw rocks at them.

20 Staff was able to get J.B. back into the classroom where he was contained in a sitting wall

21 restraint until he calmed down. J.B. was suspended for one day for this second incident.

22 An IEP meeting was held on February 24, 2017, where the two behavior incidents were

23 reviewed. The IEP team agreed J.B. would use Leapfrog, an educational tablet provided by

24 Parents, as a behavior support on his bus rides. No assistive technology assessment was proposed.

25 However, the IEP team presented an assessment plan to conduct a functional behavior assessment

26 on J.B. Specifically, the team wanted to explore the function of his aggressive behaviors, review

27 school and bus behavior, and explore additional aide support. Parent consented to the functional

28 behavior assessment (“FBA”).

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1 A FBA is a formal assessment conducted by a behaviorist. The behaviorist collects data

2 during multiple observations at different times concerning maladaptive behaviors. The purpose of

3 the assessment is to determine what events or circumstances trigger maladaptive behaviors and

4 determine the true purpose behind each behavior. A plan is then developed to decrease the

5 frequency of the targeted behavior, determine one or more appropriate replacement behaviors, and

6 develop reinforcement strategies to encourage replacement behaviors. The referring behaviors for

7 J.B.’s assessment plan were: (1) negative interactions with peers, defined as making threats and

8 negative comments towards peers; and (2) aggression towards adults and peers, defined as hitting,

9 kicking, and pushing.

10 Victoria Murphy, a board-certified behavior analyst, conducted the FBA in March and

11 April 2017. Ms. Murphy’s area of expertise was Autism. Prior to J.B., she had never conducted a

12 functional behavior assessment for a student with emotional disturbance. In conducting the FBA,

13 Ms. Murphy interviewed Parent and learned there were also concerning behaviors occurring in the

14 home. Ms. Murphy also visited J.B.’s Nexus classroom, his mainstream class, the honor room,

15 and the art room, and observed J.B.’s transitions between classrooms. She made five observation

16 visits during the assessment period. During the observation visits, there were no documented

17 instances of maladaptive behaviors.

18 The IEP team met on May 30, 2017, to review Ms. Murphy’s FBA. The IEP team

19 developed four new behavior goals for J.B. Two of the behavior goals required J.B. to engage in

20 positive peer interactions and identify five strategies for self-management of stress, anger, and

21 frustration. Both goals called for J.B. to be measured in a counseling setting by the mental health

22 clinician. The remaining two behavior goals involved J.B. utilizing a self-management tool to

23 identify stress triggers and learn to choose an appropriate behavior prior to engaging in

24 maladaptive behaviors and using a graphic organizer to help him select better behavior choices.

25 The IEP team generated a checklist of behaviors and interventions to be addressed:

26 (1) J.B.’s oppositional behavior and defiance towards teachers, adults, and authority figures;

27 (2) J.B.’s tendency to argue and bicker with adults and other students; (3) J.B.’s failure to admit

28 responsibility, frequently blaming others for his failures; (4) J.B.’s failure to follow through with

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1 directives; and (5) J.B.’s tendency to not comply with school and class rules, routines, and

2 procedures.

3 Parent signed as present on the IEP team meeting amendment page on May 30, 2017.

4 Parent did not, however, initial that she consented to the IEP.

5 C. Fall 2017 Semester

6 1. October 18, 2017 IEP Amendment

7 Following the conclusion of the FBA and prior to the start of the 2017-18 school year,

8 Ms. Murphy developed a behavior intervention plan (“BIP”) for J.B. Ms. Murphy identified

9 positive behavior strategies employed by J.B.’s Nexus classroom teacher, Shea Morgan, and

10 included recommendations based on those strategies. Because, as noted previously, none of J.B.’s

11 targeted behaviors occurred during the assessment period, the BIP did not address when J.B.’s

12 maladaptive behaviors were more likely to occur. The BIP thus included recommended

13 preventative strategies to address J.B.’s reported, but not observed, behaviors. The recommended

14 strategies consisted of speaking in a neutral and emotionally flat manner; stating directions in a

15 clear and concise manner, then walking away to avoid power struggles; and focusing on J.B.’s

16 effort rather than his accuracy or his grade. The BIP also recommended listening to J.B. to

17 validate his feelings and, when possible and appropriate, to ignore J.B.’s disruptive behavior.

18 The IEP team met again on October 18, 2017, to review the BIP generated by Ms. Murphy,

19 and generate additional behavior goals. The IEP team presented a new plan of behavior

20 intervention that differed from the one the team had introduced in May 2017. This plan identified

21 two target behaviors: negative interactions and aggression towards adults. The plan did not,

22 however, address the frequency of the behaviors. The IEP team indicated that J.B.’s maladaptive

23 behaviors occurred to express frustration with difficult tasks; to protest, postpone, or avoid non-

24 preferred tasks; and to express anger toward an unwanted peer or adult in an effort to remove that

25 unwanted peer or adult.

26 The IEP team included strategies to prevent problematic behavior. These strategies

27 included having J.B. meet with his teachers and have an opportunity to ask questions and receive

28 clarification on expectations for the intervention plan; having J.B. meet with Ms. Reiser to review

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1 the intervention plan and establish skills needed to comply with the plan; and providing J.B. with

2 the opportunity to review the visual tools and understand the uses and procedures to access

3 supports. The IEP team also included replacement behaviors for J.B. To encourage these

4 replacement behaviors, the plan included verbal praise for on-task behavior, participation in a

5 token economy to allow J.B. to access preferred activities, and a preferred staff member or food

6 as part of his reinforcement.

7 Four additional goals were developed for J.B. A self-soothing goal asked J.B. to

8 independently move to a safe area away from conflict in four out of five situations. An emotional

9 control goal required J.B. to not engage in threats and negative comments towards other students,

10 and to avoid aggression towards adults as defined by making physical contact with them through

11 hitting, kicking, and pushing 85 percent of the school days he attended. Another goal required

12 J.B. to independently seek help when engaged in a difficult or non-preferred task. Yet another

13 goal asked J.B. to calmly and effectively communicate his emotions and needs in four out of five

14 trials.

15 2. J.B.’s Behavioral Emergencies

16 After the October 18, 2017 IEP team meeting, and before the end of the 2017-18 school

17 year, J.B. engaged in eight maladaptive incidents that resulted in him being suspended from

18 school. The behaviors included punching other students yelling obscenities at a teacher, throwing

19 rocks at other students and staff, bringing a pocket knife to school, and striking a teacher with a

20 fire extinguisher. Three of these maladaptive behavior incidents occurred between October 18,

21 2017, and January 29, 2018. These incidents included eloping from campus, striking Mr. Morgan

22 with a fire extinguisher, and striking staff with rocks.

23 J.B.’s teachers and support staff tried to navigate J.B.’s changing behaviors. Mr. Morgan

24 developed home-communication logs to share news of J.B.’s behavior with Parents. Mr. Morgan

25 also developed a points system that would evaluate J.B. daily on his behaviors. If J.B. behaved

26 appropriately, he could earn snacks or a video at the end of the day.

27 Mr. Morgan’s behavior emphasis was to encourage J.B. to end the day well. Thus, if J.B.

28 engaged in maladaptive behaviors at some point in the day, but recovered his behavior,

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1 Mr. Morgan sought to encourage that recovery. Mr. Morgan utilized suspensions to support

2 appropriate behaviors for J.B. Mr. Morgan also utilized in-house suspensions in an effort to

3 determine which consequences J.B. least preferred and support positive outcomes.

4 Mr. Morgan and his aide staff were frequently the adults who remained within arm’s length

5 of J.B. during the day to best redirect his maladaptive behaviors. Mr. Morgan and his aide staff

6 were also frequently the target of J.B.’s anger and dislike of authority figures. J.B. threw rocks at

7 Mr. Morgan and struck him with a fire extinguisher and sticks. Mr. Morgan was familiar with J.B.

8 and his needs.5

9 J.B. was also privately seeing therapist Susan Swaffar, a licensed marriage and family

10 therapist.6 Ms. Swaffar saw J.B. after school and spent much of their counseling sessions working

11 on getting J.B. to be emotionally regulated so he could go home from school. Ms. Swaffar found

12 Nexus to be a great program for J.B. at first and did not believe J.B. initially required residential

13 treatment. This was consistent with Parents’ desire to keep J.B. in the family unit, which was a

14 preferred outcome. Ms. Swaffar identified J.B.’s tendency to cycle through his maladaptive

15 behaviors. She called this tendency “slippery” because it was exceptionally difficult for J.B.’s

16 caregivers and teachers to predict when the maladaptive behaviors would return. J.B. often

17 returned to similar themes during therapy sessions: being a spy, his need for a weapons cache, and

18 his anger with people who didn’t understand that he was a spy.7

19 Parents also hired a private behavior modification practitioner, Susan Knopf. Ms. Knopf

20 retired out of Tuolumne County Behavior Health service in 2018. She holds a master’s degree in

21 social and behavioral sciences. Ms. Knopf has developed a program she calls cognitive behavior

22 skills that helps parents work through the maladaptive behavior of their children. Ms. Knopf was

23 familiar with the Nexus program from other clients who participated in the program prior to J.B.’s

24 case.

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Mr. Morgan testified at the hearing and the ALJ gave Mr. Morgan’s testimony significant weight.

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After Ms. Swaffar began working with J.B. in 2015, she provided Parents with a referral to a psychiatrist,

Dr. Randall Roxas. Ms. Swaffar explained that she and Dr. Roxas communicated after the initial referral regarding

27 J.B.’s treatment plan but that she had not communicated with Dr. Roxas in more than two years.

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Ms. Swaffar testified at the hearing. The ALJ stated that she found Ms. Swaffar’s testimony and knowledge

28 of J.B. to be persuasive and that she gave it great weight.

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1 Ms. Knopf provided extensive assistance to J.B.’s family outside the school setting. When

2 Ms. Knopf first started working with J.B. and Parents, Parents contacted her almost daily, and

3 sometimes multiple times a day. As J.B. became familiar with the program, the frequency of

4 contact with Parents decreased. However, as J.B.’s maladaptive behaviors resurged, Parents’

5 frequency of contact increased again. As part of her on-boarding process, Ms. Knopf worked with

6 Parents for three to four weeks implementing skills. During this process, she observed one

7 instance of J.B.’s maladaptive behavior and how it was influenced by his sibling.

8 Ms. Knopf became a member of J.B.’s emergency phone-tree contacts for when J.B.’s

9 behaviors became unsuitable and he was not able to remain at school. Ms. Knopf would pick J.B.

10 up from school if Parents were unable to do so. Ms. Knopf would also meet Parents at the

11 emergency room when necessary. Ms. Knopf became a trusted member of J.B.’s private support

12 team.8

13 D. Spring 2018 Semester

14 1. January 29, 2018 IEP

15 J.B.’s annual IEP team meeting convened on January 29, 2018. The IEP team offered J.B.

16 continued placement at the Nexus program, specialized academic instruction for 1080 minutes per

17 week, and individual counseling for 120 minutes monthly.

18 Of the twelve goals that had been previously set for J.B., only four of them were met, two

19 of which were behavior goals. However, J.B. did not meet any of the behavior goals that had been

20 introduced through the October 17, 2017 IEP amendment, which added the behavior intervention

21 plan (“BIP”).

22 Parent provided the IEP team with a letter from Dr. Roxas, J.B.’s psychiatrist. This letter

23 identified J.B.’s current psychiatric diagnoses and any conditions that were still under

24 consideration. The letter informed the IEP team that Dr. Roxas had diagnosed J.B. with bi-polar

25 disorder and attention deficit hyperactivity disorder.

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Ms. Knopf testified at the hearing before the ALJ. The ALJ noted that during her testimony, Ms. Knopf

expressed her belief that J.B. was intellectually disabled. The ALJ found that Ms. Knopf did this without any

28 evidence to support her claim. The ALJ found Ms. Knopf’s credibility to be impacted by this unsupported statement.

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1 The IEP team identified J.B.’s areas of need as English language arts, math, social skills,

2 counseling, and behaviors. J.B. also continued to display the need for occupational therapy

3 services, executive functioning, and assistive technology. No goals or services were offered

4 regarding occupational therapy, executive functioning, or assistive technology.

5 The IEP team introduced new goals in multiplication, subtraction, and reading fluency,

6 along with a counseling-setting behavior scenario goal, and two new behavior goals to address

7 negative peer interactions and aggression. Goals from the 2017 IEP that J.B did not meet were

8 continued. An aggressive behavior goal called for J.B. to refrain from pushing, kicking, or hitting

9 staff 100 percent of the school days he was present. His previous goal had called for him to avoid

10 the target behavior 85 percent of the time. He had four instances of physical contact since a

11 previous October 2017 incident, for a 93 percent success rate on avoiding those behaviors.

12 J.B. also received a bus behavior plan. The plan was devised in an effort to maintain J.B.’s

13 safety on the bus. Ms. Swaffar provided a letter in support of the bus behavior plan. She noted

14 that J.B. had made some progress in therapy. She believed he needed some assistance in order to

15 be successful in riding the bus. Ms. Swaffar identified triggers that made J.B. reactive.

16 As part of the bus behavior plan, J.B. would be given an iPad and headphones to use while

17 riding the bus. He would also be provided an aide to ride with him. At the time, J.B. was only

18 riding the bus in the mornings. Once J.B. could ride the bus without issue for one week, the team

19 would increase his ridership to afternoons with aide and technology support. No assistive

20 technology assessment was offered. Parent consented to the IEP on January 29, 2018.

21 2. May 10, 2018 IEP

22 Following the January 29, 2018 IEP meeting, J.B.’s behavior deteriorated. Between

23 February 20, 2018, and July 5, 2018, J.B. was suspended a total of eight days. This was a

24 substantial increase in J.B.’s maladaptive behavior. This maladaptive behavior included J.B.

25 punching a kindergartner, hitting his teacher in the head with rocks and chasing him with a stick,

26 bringing a pocket knife to school, and spouting obscenities at his aide on the bus.

27 On May 10, 2018, an IEP team meeting was held to add searches of J.B.’s pockets and

28 socks in the morning and afternoon to prevent J.B. from hiding contraband that he could use as a

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1 weapon. By this time, J.B. had been suspended nine days during the 2017-18 school year. His

2 behavior also required that he be transported to and from school in an individual vehicle.

3 The IEP team agreed to reintroduce J.B. to the bus the last week of the regular school year.

4 During this week, J.B. would take the bus in the morning with an aide. Starting with the extended

5 school year, J.B. would take the bus in the morning and the afternoon. Parent consented to the IEP

6 amendment.

7 E. Summer 2018 and Fall 2018

8 The IEP team met again on June 25, 2018, to discuss J.B.’s transportation. J.B.’s treating

9 psychiatrist, Dr. Roxas, provided a medical update of current diagnoses for J.B., medical

10 protocols, and an opinion on the level of care J.B. needed. The team agreed J.B. required an aide

11 to ride the bus. An aide in the afternoon was currently available and they were searching for a

12 morning aide.

13 In August 2018, J.B. was suspended for one day for using school computers to access

14 inappropriate sites, including pornography. On September 6, 2018, J.B. threatened two staff

15 members on his bus ride home. He also kicked and spit on his aide and threatened additional

16 violence if his behavior was reported. Kylee Luchetti, the special education coordinator for

17 Tuolumne County,9 informed Parents of J.B.’s suspension the evening of September 6, 2018.

18 As noted previously, J.B. also had a fantasy life as a spy. His fantasy life was becoming

19 more disturbing, his drawings more violent, and his desire to create escape routes and weapons

20 caches more immediate.

21 1. Manifestation Determination Review Meeting

22 A manifestation determination review meeting was held on September 11, 2018. During

23 this meeting, the manifestation determination review team concluded that J.B.’s behavior was a

24

9

Ms. Luchetti joined the Tuolumne County Superintendent of Schools in July 2018 as the special education

25 coordinator. Tuolumne County supports 11 school districts with a regionalized special education program, and the

superintendent of schools provides all service clinicians to area schools. Ms. Luchetti supports special education

26 providers with training, supervision, and scheduling. Ms. Luchetti also handles special education discipline that rises

to suspension levels.

27 Ms. Luchetti met J.B. on the first day of school in August 2018 as part of her welcome back to school tour of

programs. Ms. Luchetti testified at the hearing before the ALJ. The ALJ found Ms. Luchetti’s testimony to be

28 persuasive.

13

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1 manifestation of his disability. Parents signed in agreement with the team’s determination that

2 J.B.’s behavior was a manifestation of his disability.

3 Judy Simon, a board-certified behavior analyst for Tuolumne County, recommended to the

4 team that a new functional behavior assessment be conducted. At the time of the manifestation

5 determination review, Ms. Simon had 18 years of experience as a behavior specialist in a school

6 setting. She was working for Tuolumne County as an independent contractor during school year

7 2018-19. Ms. Simon had reviewed the original FBA conducted by Ms. Murphy and recommended

8 it be redone. Ms. Simon noted there were issues with getting the staff to record behavior data

9 correctly and lacked confidence the staff had correctly identified the behavior function. Ms.

10 Simon expressed a need for the behavior assessment to identify precursor information in order to

11 interrupt behaviors before they escalated.10

12 The manifestation determination review team adopted the recommendation that a new FBA

13 be conducted and a new BIP be developed. Jeanine Wilkinson,11 a board-certified behavior

14 analyst with her own company, Building Connections Behavioral Health, also reviewed the FBA

15 and BIP developed by Ms. Murphy. She found both to be lacking in several areas and, consistent

16 with Ms. Simon and the manifestation review team, recommended that a new FBA be conducted

17 and a new BIP developed.

18 2. Request for Residential Placement and Exploration of Residential Placement

Options

19 During the manifestation determination review, Parents indicated they wanted to pursue

20 residential placement for J.B. In support, Parent produced a letter from Ms. Swaffar outlining

21 J.B.’s counseling care and documenting Ms. Swaffar’s belief that J.B. required a higher level of

22 care.

23 On September 17, 2018, shortly after the manifestation determination review, Ms. Luchetti

24

10

Ms. Simon testified at the hearing. The ALJ stated: “Ms. Simon’s knowledge of the case and thoughtful

25 presentation was given significant weight.”

11

Ms. Wilkinson testified at the hearing. The ALJ found Ms. Wilkinson’s opinions on the quality of

26 Ms. Murphy’s FBA and BIP to be impacted by straying from her area of expertise in behavior. The ALJ noted that

Ms. Wilkinson consistently testified about J.B.’s “psychosis” issues, yet J.B. has a diagnosis of Bi-Polar disorder

27 and no medical provider had been called to testify to any “psychosis.” Further, the ALJ found Ms. Wilkinson

refused to answer the questions she was asked and that she instead insisted on providing the answers she wanted to

28 give. The ALJ found that these factors impacted Ms. Wilkinson’s credibility.

14

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1 provided parental consent forms for Parents to sign allowing LEAs to communicate with two

2 residential treatment programs under consideration: Change Academy at the Lake of Ozarks and

3 Devereux Advanced Behavioral Health. The same day, Ms. Luchetti reached out to Devereux via

4 telephone. Because she did not yet have a signed parental consent, she was only able to inquire in

5 generalities of Devereux’s availability.

6 On September 29, 2018, J.B. was taken to the emergency room for suicidal behavior.

7 During a manic incident, J.B. tried to harm himself with a knife, including attempting to stab his

8 testicles. He was restrained by Parents and later by law enforcement. As J.B. was unable to re-

9 regulate himself, he remained on a psychiatric hold until September 30, 2018.

10 Parent returned the signed consent for Devereux on October 1, 2018. The same day,

11 Ms. Luchetti learned from Parent that J.B.’s application was rejected by the Change Academy

12 because his behavior was too acute. On October 16, 2018, Ms. Luchetti provided Devereux with

13 documents required to determine whether J.B. qualified for admission. Two days later, Ms.

14 Luchetti learned from Devereux that J.B. had already been conditionally accepted from the

15 documents provided to Devereux by Parents.

16 At this point, Parents were almost exclusively focused on finding a residential placement

17 for J.B. LEAs were aware between October and December 2018, Parents were considering

18 Devereux as a possible placement for J.B.

19 In the meantime, J.B. had been rejected from several other facilities. Edgewood Center for

20 Children and Families determined it could not meet J.B.’s needs. Among the factors Edgewood

21 identified as areas of need they would be unable to meet were J.B.’s self-harm, aggression, and

22 tendency to make weapons.12

23 On November 28, 2018, Parent provided a signed release for LEAs to communicate with

24 Perimeter Health, also known as Madison Oaks Behavioral Acute and Residential Services

25 (“Madison Oaks”). This program was Parents’ preferred program. The Madison Oaks team

26 reviewed J.B.’s file, determined it could meet J.B.’s therapeutic and educational needs, and made

27

28 12

Michael Clumeck, the director of admissions for Edgewood, testified at the hearing.

15

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1 a decision on November 26, 2018, to admit J.B.13 The Madison Oaks Behavioral Program is co-

2 located with an acute care facility in Jackson, Tennessee. The facility has a child-adolescent and a

3 geriatric unit. The program focuses on children who have behavioral or psychiatric issues that

4 have made them a threat to themselves or their community. J.B. would be able to receive

5 academic, behavioral, psychiatric, and emotional support through Madison Oaks’ program. The

6 daily rate for the program is $495 which covers room and board, therapeutic services, and

7 education.

8 Parents hired Shayna Abraham, a therapeutic educational consultant with her own

9 company, Prepare to Bloom, as a consultant. Ms. Abraham has a master’s degree in counseling

10 psychology. She has no special education teaching experience. As a consultant, she specializes in

11 locating residential treatment facilities for children. Ms. Abraham reviewed all of J.B.’s records

12 and spoke with Parents, but not to anyone from LEAs. At Parents’ request and without any

13 knowledge of LEAs, Ms. Abraham visited both Devereux and Madison Oaks. Ms. Abraham

14 visited Devereux for approximately two and one-half hours and spent half a day at Madison Oaks.

15 She noted that Madison Oaks offers a trauma-infused therapy program and has an on-site

16 psychiatrist and staff therapists to serve J.B.’s therapeutic needs.

17 3. December 18, 2018 IEP amendment offer

18 On December 18, 2018, Ms. Luchetti, believing there was a consensus on both the need for

19 residential treatment and location, provided Parents with a proposed IEP amendment offering J.B.

20 placement at Devereux. Parents refused to consent to this placement because Devereux was no

21 longer their preferred program. Ms. Luchetti was surprised by Parent’s refusal.

22 No IEP team meeting was scheduled immediately following Parent’s refusal to consent to

23 the amendment. The next IEP team meeting was not held until February 1, 2019.

24 On December 28, 2018, following the District’s offer of Devereux, and Parents’ rejection

25 13

The ALJ’s decision states that Madison Oaks received certification by the California Department of

Education (“CDE”) in December 2018. As discussed below in more detail, this is inaccurate, as the evidence

26 demonstrates that Madison Oaks received certification in March 2019. However, the evidence also demonstrates that

as of December 2018, Madison Oaks had California students placed in it through the IEP process, and had

27 certification pending that was expected to be approved by CDE any day. In light of this evidence, and state law

providing for retroactive certification, see Cal. Ed. Code § 56366.1(e), (f), it was reasonable to conclude that

28 Madison Oaks’ certification was effective retroactive to December 2018.

16

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1 of that offer, Parents revoked consent for LEAs to speak to any third parties about J.B. Following

2 Parents’ revocation of consent, LEAs were unable to communicate with any prospective

3 residential placements for J.B. LEAs were also denied updated information about J.B.’s on-going

4 mental health issues and hospitalizations.

5 F. Spring 2019

6 1. Dr. Solomon’s Psychoeducational Assessment of J.B.

7 In early February 2019, Parents contracted with Dr. Paula Solomon for a

8 psychoeducational assessment of J.B. Dr. Solomon has a doctorate in psychology. She worked as

9 a clinical director for TLC learning centers for 23 years. Starting in 1996, she simultaneously

10 maintained a private practice where she specialized in psychological assessments of students, and

11 throughout her career has performed more than 300 assessments. She also was a lecturer at the

12 Institute of Imaginal Studies, where she taught psychology to graduate students in assessment

13 techniques and neuropsychological screenings.

14 Dr. Solomon attended J.B.’s February 1, 2019 IEP team meeting. She then assessed J.B.

15 over three days in February and March 2019. Her assessment consisted of a review of J.B.’s

16 records; observations of J.B. at school; standardized testing of J.B.; and interviews with Parents,

17 J.B., Ms. Reiser, Ms. Luchetti, Ms. Swaffar, and Dr. Roxas’ nurse. Records reviewed by Dr.

18 Solomon include LEAs’ assessments, IEP team meeting documents, suspension reports, school-

19 home communications, and J.B.’s mental health and hospitalization records, some of which were

20 not shared with LEAs.

21 Dr. Solomon administered the Wechsler Intelligence Scale for Children, Fifth Edition. This

22 standardized test measures cognitive ability and problem-solving processes in children. This

23 results of this test showed that J.B.’s full-scale intelligence quotient was in the low average range;

24 and that his working memory and processing speeds were areas of specific weakness. J.B.

25 performed strongly on the verbal comprehension.

26 Dr. Solomon observed J.B. in his classroom on February 12, 2019. During the observation,

27 J.B. was easily frustrated and off-task. He was given credit for work he partially completed. J.B.

28 was described as doing as little as possible. J.B. also engaged in maladaptive behaviors like

17

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1 attempting to access inappropriate material on the computer. J.B. tended to struggle between

2 11:30 and 1:00 which was thought to be the result of adjustments in J.B.’s morning medication

3 time.

4 On the same day she observed J.B. in the classroom, Dr. Solomon met with Ms. Luchetti

5 and Ms. Reiser. Dr. Solomon also received input from Parents and Elijah Elder-Rosen14 through

6 interviews with them and their completion of the rating scales for the Behavior Assessment Scales

7 for Children, Third Edition. Parent’s index scores were in the clinically significant range for

8 externalizing problems, internalizing problems, and on the behavior systems index. Parent’s

9 content scores noted concerns in the areas of anger control, bullying, developmental social

10 disorders, emotional self-control, executive functioning, and resiliency.

11 None of Mr. Elder-Rosen’s scores identified J.B. in the clinically significant area. His

12 scores rated J.B. as at-risk in externalizing and behavioral symptoms; with aggression, atypicality,

13 and withdrawal being his highest scores. Mr. Elder-Rosen’s content scores showed J.B. as

14 clinically significant in bullying and at risk for developmental social disorders.

15 To assess J.B.’s adaptive skills, Dr. Solomon administered the Adaptive Behavior

16 Assessment—Second Edition. The test consists of rating scales, which Dr. Solomon asked Parents

17 and Mr. Elder-Rosen to complete. Parents rated J.B. in the first through third percentile for youth

18 his age. He was rated highest by Parents in community use and lowest in self-care, but all scores

19 were significantly below average. Mr. Elder-Rosen’s ratings were also below average, with J.B.’s

20 highest score in the 13th percentile in conceptual domain; though all Mr. Elder-Rosen’s scores

21 were also significantly below average.

22 To assess J.B. in the area of emotional disturbance, Dr. Solomon administered the

23 Emotional Disturbance Decision Tree. The test measures a child’s inability to build or maintain

24 relationships; inappropriate behaviors or feelings; pervasive mood or depression; and physical

25 symptoms and fears. Dr. Solomon also received input from Parents and Mr. Elder-Rosen in

26 14

Mr. Elder-Rosen was J.B.’s Nexus teacher at the time. Mr. Elder-Rosen reported to the manifestation

review team that J.B. was one of his best. However, Mr. Elder-Rosen, who taught on a provisional internship permit,

27 had no specialized training in special education.

Mr. Elder-Rosen testified at the hearing. The ALJ found Mr. Elder-Rosen to be surly, evasive, and at times

28 nonresponsive during testimony and thus the ALJ gave his testimony no weight.

18

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1 completing the Emotional Disturbance Decision Tree. Parents rated J.B. to be very high clinical in

2 all categories. Mr. Elder-Rosen’s rating sheets rated J.B. moderate clinical in inability to build or

3 maintain relationships, physical symptoms or fears; and high clinical in inappropriate behaviors or

4 feelings and pervasive mood/depression.

5 Dr. Solomon received input from J.B. and Parents on the Children’s Depression Inventory-

6 2. The Children’s Depression Inventory-2 is a multi-rater assessment to aid in the identification of

7 depressive symptoms, and diagnoses of depression and related disorders. J.B. described himself

8 as significant in negative mood, negative self-esteem, and interpersonal problems. Parent’s

9 responses also placed J.B. at elevated levels for aspects of depression and total depression.

10 Dr. Solomon also received input from J.B. and his father on the Multidimensional Anxiety

11 Scale for Children. This measurement estimates the likelihood of experiencing anxiety disorders.

12 Father rated J.B. very elevated in physical symptoms, tense and restless; slightly elevated in social

13 anxiety, performance fears; high average on humiliation and rejection, panic, and obsessions and

14 compulsions; and low on harm avoidance. J.B. self-reported slight elevation in social anxiety,

15 humiliation and rejection, performance and fears, and panic; high average on physical symptoms

16 and harm avoidance; and average on obsessions and compulsions and tense and restless.

17 Dr. Solomon asked J.B. to participate in the Roberts Apperception Test for Children. In this

18 assessment, J.B. is asked to tell stories from a series of pencil sketches on children and families in

19 normal situations. Each story will have an implied problem or emotional stress. J.B.’s stories were

20 concerning to Dr. Solomon. J.B. was unable to accurately identify interpersonal dynamics and his

21 problem solving gave bizarre and wishful outcomes.

22 Dr. Solomon also asked J.B. to perform the Draw-A-Person task where the individual is

23 allowed to express their inner view of themselves. J.B. was given three opportunities to draw a

24 person. His first effort was a non-descript person. The second effort was a very detailed lantern he

25 had studied on-line, and the third time, he drew a corpse. The corpse was in graphic detail

26 including beard stubble and an empty eye socket.

27 The final test Dr. Solomon asked J.B. to complete was the Incomplete Sentence Test. J.B.

28 was slow and thoughtful in his responses. Dr. Solomon followed up with some of J.B.’s responses

19

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1 in her interview with him.

2 Dr. Solomon’s assessment report recommended J.B. be placed in a residential program that

3 specializes in children with serious mood disorders and significant learning disorders. She found

4 that J.B. was not accessing his education due to his mental instability. Dr. Solomon also

5 recommended a one-to-one aide for J.B. She believed the facility should also specialize in trauma-

6 informed therapy, and recommended J.B. receive daily therapy to allow him to work on his

7 emotions and coping skills. Dr. Solomon believed that J.B. required a residential placement as of

8 late 2015,15 and that residential placement is currently required due to J.B.’s past inappropriate

9 placement. As part of her recommendation for remediation, Dr. Solomon recommended a

10 residential treatment program capable of providing family therapy, and that the family members

11 receive two years of family therapy and individual therapy.16

12 2. Ms. Tjenderson’s Educational Assessment

13 In March 2019, Parents contracted with Priya Tjenderson for an educational evaluation of

14 J.B. Ms. Tjenderson is an educational specialist consultant with the Morrissey-Compton

15 Educational Center. In her role at Morrissey-Compton, Ms. Tjenderson performs educational

16 assessments to determine specific learning differences. Since 2016, she has also served as the lead

17 education specialist with the North Bridge Academy. She holds a master’s degree in special

18 education.

19 In conducting the educational assessment, Ms. Tjenderson reviewed J.B.’s work samples,

20 report cards, and past IEPs. Ms. Tjenderson spoke with Parent but did not speak with any of J.B.’s

21 teachers. Ms. Tjenderson administered standardized assessments including the Woodcock-

22 Johnson; Berry-Buktenica Test of Visual Motor Integration; Test of Orthographic Competence,

23 Ages 8-12; and the Kaufman Test of Academic Achievement, 3rd edition, form B.

24 On the Woodcock-Johnson test, J.B. obtained scores in the average range for letter word

25 identification. He performed below average in sentence reading fluency, passage comprehension,

26 15

The ALJ found Dr. Solomon’s opinion that J.B. required residential treatment as of late 2015 to be

unreliable.

27 16

The ALJ found the recommendations regarding family and individual therapy for family members to be

unpersuasive based on the expansiveness of the recommendation versus the limited knowledge Dr. Solomon had of

28 the family’s needs.

20

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1 broad reading, and oral reading. He performed below average in spelling, sentence writing

2 fluency, writing samples, and broad language. His math scores indicated significant weakness in

3 calculation, math facts fluency, applied problems, and broad mathematics.

4 On the Test of Orthographic Competence, Ages 8-12, J.B. scored in the first and second

5 percentile for letter choice, word scramble, and sight spelling. J.B. scored in the 95th percentile in

6 homophone choice. On the Berry-Buktenia Test of Visual Motor Integration, J.B. demonstrated

7 below average deficits on his visual motor skills at both the perceptual and motoric planning

8 levels. On the Kaufman Test of Academic Achievement, 3rd edition, Form B, phonological

9 processing, J.B. scored a standard score of 71, putting him in the 3rd percentile and indicating that

10 he had deficits in separating sounds of words.

11 Ms. Tjenderson noted that J.B. worked diligently throughout the testing but demonstrated

12 distractibility and needed directions repeated in order to continue working. Near the end of his

13 testing session, J.B. was restless and sang songs with violent or sexual connotations. Ms.

14 Tjenderson believed the testing results were an accurate reflection of his academic achievement.

15 Based upon her testing, discussions with Parent and J.B., and her review of J.B.’s records,

16 Ms. Tjenderson concluded that J.B. meets the criteria for a Specific Learning Disability in

17 Reading and a Specific Learning Disability in Written Expression, which she described as

18 dysgraphia. She also concluded J.B. warranted a further diagnosis in Specific Learning Disorder

19 in Mathematics, which she described as dyscalculia. Ms. Tjenderson’s recommendation indicated

20 that J.B.’s mental health issues impacted his learning abilities. She recommended a series of

21 accommodations for J.B., along with a program of educational therapy and assistive technology.

22 Ms. Tjenderson’s report was signed by herself and Dr. John T. Brentar, a licensed psychologist at

23 Morrissey-Compton. Ms. Tjenderson found all of J.B.’s IEP goals to be inadequate.17

24 II. PROCEDURAL BACKGROUND

25 J.B. filed a request for a due process hearing with the OAH on January 3, 2019, naming

26

17

Ms. Tjenderson testified at the hearing. The ALJ questioned Ms. Tjenderson’s objectivity, stating: “Ms.

27 Tjenderson found all of Student’s IEP goals to be inadequate. Ms. Tjenderson’s wholesale discounting of Student’s

goals was conclusory. Tjenderson never observed Student at school or spoke to his teachers. Ms. Tjenderson’s

28 testimony raised significant questions about her objectiveness.” (AR 3880.)

21

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1 LEAs, and LEAs filed a request for a due process hearing on February 6, 2019, naming J.B. On

2 February 11, 2019, the cases were consolidated.

3 A consolidated due process hearing was held before the ALJ on March 19, 20, 21, 25, 26,

4 27, and 28, 2019, and April 3, 4, and 5, 2019. During the prehearing conference, the ALJ noted

5 that LEAs had withdrawn their issue number 1—whether District’s February 1, 2019 IEP offer of

6 placement at Devereux constituted a free, appropriate, public education (“FAPE”) in the least

7 restrictive environment. (AR 3976-77.) The ALJ identified the following as LEAs’ remaining

8 issues for the hearing:

9 1. Are LEAs entitled to a release of information signed by the parents authorizing

10 LEAs to communicate with student’s medical providers and with Devereux?

11 2. May District conduct a new FBA of student, pursuant to a February 6, 2019

12 assessment plan?

13 The remedies sought by LEAs were an order stating that LEAs are entitled to a release of

14 information to communicate with J.B.’s medical providers; and an order that District may conduct

15 a new functional behavior assessment of J.B.

16 The ALJ identified the following as J.B.’s issues for the hearing:

17 1. Beginning January 4, 2017, did LEAs deny J.B. a FAPE during the 2016-17 school

18 year by:

19 a. Not offering a more restrictive placement based on J.B.’s history of

20 frequent, intense, and dangerous behaviors;

21 b. Failing to continue his occupational therapy goals;

22 c. Failing to offer clear and measurable annual goals reasonably calculated to

23 meet J.B.’s unique needs with clear, accurate baselines;

24 d. Failing to develop sufficient goals to meet J.B.’s needs in the area of

25 executive functioning;

26 e. Discontinuing J.B.’s occupational therapy services;

27 f. Reducing J.B.’s educationally related mental health counseling services; and

28 g. Failing to offer appropriate and timely behavioral intervention services,

22

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1 specifically an appropriate functional behavior assessment, functional

2 behavior intervention plan, and a one-to-one aide support.

3 2. During the 2017-18 school year, did LEAs deny J.B. a FAPE by:

4 a. Not offering a more restrictive placement based on J.B.’s history of

5 frequent, intense, and dangerous behaviors;

6 b. Failing to offer occupational therapy goals;

7 c. Failing to offer clear and measurable annual goals reasonably calculated to

8 meet J.B.’s unique needs with clear, accurate baselines;

9 d. Failing to develop sufficient goals to meet J.B.’s needs in the area of

10 executive functioning;

11 e. Failing to offer occupational therapy services;

12 f. Failing to offer sufficient educationally related mental health counseling

13 services;

14 g. Failing to offer appropriate behavioral intervention services and instead

15 relying on an inadequate functional behavior assessment and functional

16 behavior intervention plan;

17 h. Failing to offer and provide a one-to-one aide in a timely manner; and

18 i. Failing to conduct an assistive technology assessment across all academic

19 settings.

20 3. During the 2018-19 school year, did LEAs deny J.B. a FAPE by:

21 a. Failing to offer and provide a more restrictive placement based on J.B.’s

22 history of frequent and intense behaviors;

23 b. Offering to change placement outside the IEP process; and

24 c. Failing to offer appropriate behavior intervention services to allow J.B. to

25 access his education in the least restrictive environment.

26 For remedies, J.B. sought an order requiring LEAs to (i) fund placement in a residential

27 treatment center or appropriate nonpublic 24/7 therapeutic placement; (ii) fund creation of IEP

28 goals in the areas of need by a non-District expert; (iii) fund a functional behavior assessment and

23

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1 the creation of a behavior intervention plan and behavior goals by a non-District PhD-level

2 behaviorist; (iv) fund an assistive technology assessment by a non-District evaluator; (v) fund

3 training and counseling for parents in supporting J.B.; (vi) provide compensatory education;

4 (vii) reimburse Parents for the cost of all services provided by Dr. Paula Solomon; (viii)

5 reimburse Parents for assessments obtained by Parents; (ix) provide 50 to 100 hours of staff

6 training; and (x) pay J.B.’s attorney’s fees.

7 III. SUMMARY OF THE ALJ’s RESOLUTION OF THE ISSUES

8 The ALJ issued her decision on May 10, 2019. (See AR 3860-3901.)

9 As to the relief sought by LEAs, the ALJ found that LEAs were entitled to perform a new

10 functional behavior assessment of J.B., but that they were not entitled to a release of information

11 to allow LEAs to speak with J.B.’s medical providers and Devereux.

12 As to the relief sought by J.B., the ALJ found that LEAs denied J.B. a FAPE from January

13 4, 2017, through the remainder of the 2016-17 school year by failing to offer J.B. clear and

14 measurable goals, failing to continue his occupational therapy goals, reducing his educationally

15 related mental health services, failing to timely conduct a functional behavioral assessment,

16 failing to offer appropriate behavioral intervention services, and failing to offer a behavior

17 intervention plan. The ALJ found LEAs denied J.B. a FAPE during the 2017-18 school year by

18 failing to conduct an assistive technology assessment, failing to offer clear and measurable goals,

19 failing to develop goals to meet J.B.’s need in executive functioning, failing to offer occupational

20 therapy goals and services, and failing to offer sufficient educationally related mental health

21 counseling. Finally, the ALJ found that beginning on May 10, 2018, LEAs denied J.B. a FAPE by

22 failing to offer a more restrictive placement based on J.B.’s history of frequent, intense, and

23 dangerous behavior.

24 As remedies for the denial of a FAPE, the ALJ ordered that LEAs were responsible for

25 contracting with Madison Oaks to pay J.B.’s daily fees of tuition, therapeutic services, and room

26 and board to attend Madison Oaks until the end of 2019-20 regular school year, and that within

27 fifteen days of the ALJ’s decision, J.B. was to enroll and begin attending Madison Oaks. (AR

28 3900.) The ALJ also ordered LEAs to pay for two roundtrip airline tickets for Parents to escort

24

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1 J.B. to and from Madison Oaks, and for two nights of hotel accommodations, one upon

2 enrollment and the other for the return home. (Id.) Finally, LEAs were ordered to reimburse

3 Parents $11,025 for the cost of Dr. Solomon’s assessment. (Id.) The ALJ denied student all other

4 relief.

5 Both LEAs and J.B. appeal from the ALJ’s decision.

6 IV. ISSUES RAISED ON APPEAL

7 A. LEAS’ Issues

8 LEAs raise the following issues on appeal:

9 1. Whether the ALJ’s decision is entitled to deference when adjudicating LEAs’ cross-

10 appeal and first counterclaim because:

11 a. The ALJ’s decision improperly fails to analyze LEAs’ proposed placement

12 at Devereux;

13 b. The ALJ’s decision improperly substitutes the ALJ’s own judgment over

14 that of LEAs’ educational professionals;

15 c. The ALJ’s decision contains consequential clear errors of fact; and

16 d. The ALJ’s decision improperly fails to analyze Parent’s testimony or

17 evaluate her credibility.

18 2. Whether a preponderance of the evidence fails to support J.B.’s residential

19 placement at Madison Oaks because:

20 a. The preponderance of the evidence shows J.B. made progress after May 10,

21 2018, particularly in behavior;

22 b. The order for residential placement of J.B. as of May 10, 2018, is

23 impermissibly based upon the ALJ’s substituted judgment; and

24 c. The ALJ’s decision relies on an incorrect legal standard for ordering a

25 change in J.B.’s placement.

26 3. Whether the ALJ erred in awarding J.B. reimbursement for the cost of Dr.

27 Solomon’s psychoeducational assessment.

28 \\\

25

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1 B. J.B.’s Issues

2 J.B. raises the following issues on appeal:

3 1. Whether LEAs denied J.B. a FAPE during the 2016-17 school year, beginning on

4 January 4, 2017, by failing to offer a more restrictive placement based on J.B.’s history

5 of frequent, intense, and dangerous behaviors.

6 2. Whether J.B. is entitled to additional remedies beyond that awarded by the ALJ.

7 3. Whether the ALJ made improper negative credibility findings against J.B.’s testifying

8 expert witnesses.

9 V. LEGAL STANDARDS

10 A. IDEA’s Overarching Statutory Framework

11 The IDEA grants federal funds to state and local agencies to provide a special education to

12 children with disabilities. 20 U.S.C. § 1412(a); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,

13 1469 (9th Cir. 1993). The main purposes of the IDEA are

14 (A) To ensure that all children with disabilities have available to them a free

appropriate public education that emphasizes special education and related

15 services designed to meet their unique needs and prepare them for further

employment and independent living; (B) to ensure that the rights of children with

16 disabilities and parents of such children are protected; and (C) to assist States,

localities, educational service agencies, and Federal agencies to provide for the

17 education of all children with disabilities.

18 20 U.S.C. § 1400(d)(1)(A)-(C).

19 A free and appropriate public education (“FAPE”) is defined by the IDEA as

20 special education and related services that—(A) have been provided at public

expense, under public supervision and direction, and without charge; (B) meet the

21 standards of the State educational agency; (C) include an appropriate pre-school,

elementary school, or secondary school education in the State involved; and

22 (D) are provided in conformity with the individualized education program

required under section 1414(d) of this title.

23

20 U.S.C. § 1401(9).

24

“Special education” is in turn defined by the IDEA as “specially designed instruction, at no

25

cost to parents, to meet the unique needs of a child with a disability, including—(A) instruction

26

conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

27

(B) instruction in physical education.” 20 U.S.C. § 1401(29).

28

26

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1 “Related services” are defined by the IDEA as

2 transportation, and such developmental, corrective, and other supportive services

(including speech-language pathology and audiology services, interpreting

3 services, psychological services, physical and occupational therapy, recreation,

including therapeutic recreation, social work services, school nurse services

4 designed to enable a child with a disability to receive a free appropriate public

education as described in the individualized education program of the child,

5 counseling services, including rehabilitation counseling, orientation and mobility

services, and medical services, except that such medical services shall be for

6 diagnostic and evaluation purposes only) as may be required to assist a child with

a disability to benefit from special education, and includes the early identification

7 and assessment of disabling conditions in children.

20 U.S.C. § 1401(26)(A); see id. § 26(B) (excluding from definition of “related services” any

8

“medical device that is surgically implanted, or the replacement of such device”).

9

The goals of the IDEA are implemented through the development of an individualized

10

education plan or “IEP,” which is a “written statement for each child with a disability,” that

11

includes the student’s present level of performance, annual goals, short and long term objectives,

12

specific services to be provided, the extent to which the student may participate in regular

13

education programs, and criteria for measuring the student’s progress. 20 U.S.C. §§ 1401(14),

14

1414(d)(1)(A). The IEP, which is to be developed by a team that includes a student’s parents and

15

school personnel, is thus a “comprehensive statement of the educational needs of a handicapped

16

child and the specially designed instruction and related services to be employed to meet those

17

needs.” Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 368

18

(1985).

19

Every IEP begins by describing a child’s present level of achievement, including

20 explaining “how the child's disability affects the child's involvement and progress

in the general education curriculum.” It then sets out “a statement of measurable

21 annual goals . . . designed to . . . enable the child to be involved in and make

progress in the general education curriculum,” along with a description of

22 specialized instruction and services that the child will receive. The instruction and

services must likewise be provided with an eye toward “progress in the general

23 education curriculum.”

24 Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017).

25 It is important to keep in mind that the IDEA does not require a school to maximize the

26 potential of each special needs child. Rather, “the ‘basic floor of opportunity’ provided by the

27 [IDEA] consists of access to specialized instruction and related services which are individually

28 designed to provide educational benefit to the handicapped child.” Bd. of Educ. of Hendrick

27

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1 Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 201 (1982). The obligation to

2 provide FAPE is met if “the education to which access is provided [is] sufficient to confer some

3 educational benefit upon the” disabled child. Id. at 200; see J.L. v. Mercer Island Sch. Dist., 592

4 F.3d 938, 950-51 & n.10 (9th Cir. 2010) (recognizing that, despite post-Rowley changes to special

5 education laws, the Rowley “educational benefit” standard remains the proper standard for

6 determining whether a disabled child has received FAPE).

7 When a child is fully integrated into a regular classroom, a FAPE generally requires an IEP

8 “‘reasonably calculated to enable the child to achieve passing marks and advance from grade to

9 grade.’” Endrew F., 137 S. Ct. at 996 (quoting Rowley, 458 U.S. at 207).

10 For a child who is not fully integrated into a regular classroom, the IEP “need not aim for

11 grade-level advancement,” but instead “must be appropriately ambitious in light of [the child’s]

12 circumstances.” Id. at 1000. However, an educational program that provides “merely more than

13 de minimis progress from year to year can hardly be said to have been offered an education at all.

14 For children with disabilities, receiving instruction that aims so low would be tantamount to

15 sitting idly . . . awaiting the time when they were old enough to drop out.” Id. at 1001 (quoting

16 Rowley, 458 U.S. at 179) (internal quotation marks omitted). “The IDEA demands more. It

17 requires an educational program reasonably calculated to enable a child to make progress

18 appropriate in light of the child’s circumstances.” Id. “Any review of an IEP must appreciate that

19 the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Id. at

20 999.

21 Whether an IEP offers a student a FAPE is not judged in hindsight but is instead assessed

22 in light of information available at the time the IEP is developed. Adams v. State of Oregon, 195

23 F.3d 1141, 1149 (9th Cir. 1999). An IEP “is a snapshot, not a retrospective. In striving for

24 ‘appropriateness,’ an IEP must take into account what was, and was not, objectively reasonable

25 when the snapshot was taken, that is, at the time the IEP was drafted.” Id. (citation omitted).

26 Moreover, the IDEA requires that “[d]isabled children, to the maximum extent appropriate,

27 should be educated with children who are not disabled, i.e., they should be mainstreamed.” Seattle

28 Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996) (citing 20 U.S.C. § 1412(5)),

28

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1 abrogated on other grounds by Schaffer v. Weast, 546 U.S. 49, 56-58 (2005); see Rowley, 458

2 U.S. at 202-03 (“The [IDEA] requires participating States to educate handicapped children with

3 nonhandicapped children whenever possible.”). In other words, “[t]he education of a disabled

4 child should take place in the least restrictive environment.” B.S., 82 F.3d at 1500. (citing 34

5 C.F.R. § 300.552(d)).

6 Residential placement is, however, appropriate for a disabled child if it is necessary for the

7 child to receive benefit from his or her education. B.S., 82 F.3d at 1500. “If placement in a public

8 or private residential program is necessary to provide special education and related services to a

9 child with a disability, the program, including non-medical care and room and board, must be at

10 no cost to the parents of the child.” Id. (citation omitted); see M. S. v. Los Angeles Unified Sch.

11 Dist., 2019 WL 334564, at *9 (C.D. Cal. 2019), aff'd sub nom. M. S. by & through R.H. v. Los

12 Angeles Unified Sch. Dist., 913 F.3d 1119 (9th Cir. 2019) (“Where the level of services provided

13 by a residential treatment center is needed for a student to access a FAPE—that is, when the

14 residential placement is ‘considered necessary for educational purposes’ and not merely

15 ‘necessary quite apart from the learning process’—it is appropriate for the student’s IEP to reflect

16 the need for residential placement.” (citation omitted)).

17 Finally, the IDEA does not require a student “to spend years in an educational environment

18 likely to be inadequate and to impede her progress simply to permit the School District to try

19 every option short of residential placement.” B.S., 82 F.3d at 1501; see Sacramento City Unified

20 Sch. Dist., Bd. of Educ. v. Rachel H. By & Through Holland, 14 F.3d 1398, 1404 (9th Cir. 1994)

21 (setting out, as factors to be considered in determining whether a placement offers education in

22 the least restrictive environment: “(1) the educational benefits of placement full-time in a regular

23 class; (2) the non-academic benefits of such placement; (3) the effect [of the special education

24 student] on the teacher and children in the regular class; and (4) the costs of mainstreaming [the

25 special education student]”).

26 B. IDEA’s Procedural Safeguards, Including Agency Review

27 The IDEA provides certain procedural safeguards to children and their parents, including

28 notification of any changes in identification, education, and placement of the student; parental

29

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1 presence at IEP meetings; and a mechanism for parents or the public agency to obtain agency

2 review.

3 The parent or public agency may obtain agency review by bringing a due process

4 complaint raising issues related to the student’s education and placement. The filing of a due

5 process complaint may result in a mediation or a due process hearing conducted by a local or state

6 educational agency hearing officer. 20 U.S.C. § 1415(b)-(i).

7 A due process complaint may be brought by a party “with respect to any matter relating to

8 the identification, evaluation, or educational placement of the child, or the provision of a free

9 appropriate public education to such child,” and can be for an alleged violation that “occurred not

10 more than 2 years before the date the parent or public agency knew or should have known about

11 the alleged action that forms the basis of the complaint. . . .” 20 U.S.C. § 1415(b)(6)(A), (B). A

12 parent or local education agency may also request a hearing if the party “believes that maintaining

13 the current placement of the child is substantially likely to result in injury to the child or to

14 others.” 20 U.S.C. § 1415(k)(3)(A).

15 When a due process complaint has been filed, “the parents or the local educational agency

16 involved in such complaint shall have an opportunity for an impartial due process hearing, which

17 shall be conducted by the State educational agency or by the local educational agency, as

18 determined by State law or by the State educational agency.” 20 U.S.C. § 1415(f)(1)(A).18

19 Following the due process hearing, the hearing officer—here the administrative law judge

20 (“ALJ”)—is to provide a written decision determining whether the child received a free

21 appropriate public education. 20 U.S.C. § 1415(f)(3)(E)(i).19

22 C. Judicial Review

23 A party that is dissatisfied with the decision of an agency hearing officer may bring a civil

24 18

If parents invoke the IDEA’s “stay put” provision, the child is permitted to remain in the current

educational placement until the dispute is resolved. See 20 U.S.C. § 1415(j) (“[D]uring the pendency of any

25 proceedings conducted pursuant to this section, . . . the child shall remain in the then-current educational placement

of the child.”).

26 19

For alleged procedural violations, a hearing officer may find a child did not received a FAPE only if the

procedural inadequacies “impeded the child’s right to a free appropriate public education”; “significantly impeded

27 the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate

public education to the parents’ child”; or “caused a deprivation of educational benefits.” 20 US.C.

28 § 1415(f)(3)(E)(ii).

30

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1 action in state or federal court seeking review of the agency’s decision. 20 U.S.C. § 1415(i)(2).

2 The reviewing court “shall receive the records of the administrative proceedings”; “shall hear

3 additional evidence at the request of a party”; and, “basing its decision on the preponderance of

4 the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. §

5 1415(i)(2)(C); see Ashland Sch. Dist. v. Parents of Student E.H., 587 F.3d 1175, 1183 (9th Cir.

6 2009) (“When a district court hears an appeal from a state hearing officer, it exercises broad

7 discretion to craft relief under 20 U.S.C. § 1415(i)(2)(C).”) (citing Sch. Comm. of Burlington, 471

8 U.S. at 369-70 (1996)).

9 In reviewing an appeal under the IDEA, the reviewing court does not employ the highly

10 deferential standard of review that typically governs agency decisions. Instead, “due weight” is to

11 be given to the administrative proceedings. See JG v. Douglas Cty. Sch. Dist., 552 F.3d 786, 793

12 (9th Cir. 2008); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472, 1476 (9th Cir. 1993); see

13 also Hendrick Hudson Dist. Bd. Of Ed. V. Rowley, 458 U.S. 176, 206 (1982) (Judgments of

14 education policy under 20 U.S.C. § 1415(e) are to be given “due weight.”). Under this standard,

15 the reviewing court must consider the ALJ’s findings carefully and address the ALJ’s resolution

16 of each material issue raised on appeal. Cty. of San Diego v. Cal. Special Educ. Hearing Office,

17 93 F.3d 1458, 1466 (9th Cir. 1996). After such consideration, the reviewing court may accept or

18 reject the ALJ’s findings in part or in whole. Id. On the other hand, “courts should not substitute

19 their own notions of sound educational policy for those of the school authorities which they

20 review.” Wilson v. Marana Unified School Dist., 735 F.2d 1178, 1183 (9th Cir. 1984). Complete

21 de novo review is not appropriate. Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th

22 Cir. 2001).

23 The amount of deference given to the decision of the ALJ is a matter for the discretion of

24 the reviewing court:

25 The traditional test of findings being binding on the court if supported by

substantial evidence, or even a preponderance of the evidence, does not apply.

26 This does not mean, however, that the findings can be ignored. The court, in

recognition of the expertise of the administrative agency, must consider the

27 findings carefully and endeavor to respond to the hearing officer's resolution of

each material issue. After such consideration, the court is free to accept or reject

28 the findings in part or in whole.

31

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1 Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (citations omitted).

2 A reviewing court is to give “particular deference where the [ALJ’s] findings are ‘thorough

3 and careful.’” R.B., ex rel. F.B.v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir.

4 2007) (citing Smith, 15 F.3d at 1524). A reviewing court is to also give particular deference to the

5 ALJ’s credibility determinations of live witnesses. See Amanda J. ex rel. Annette J. v. Clark Cty.

6 Sch. Dist., 267 F.3d 877, 889 (9th Cir. 2001) (An ALJ “who receives live testimony is in the best

7 position to determine issues of credibility.”); Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337

8 F.3d 1115, 1127 (9th Cir. 2003) (“Normally, a finder of fact’s determination of credibility

9 receives deference on appeal, because access to live testimony is important to the credibility

10 finding.”).

11 “The burden of proof in the district court rest[s] with ... the party challenging the

12 administrative decision.” Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 (9th Cir.

13 2007).

14 VI. MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

15 J.B. seeks to supplement the administrative record with evidence of his status at Madison

16 Oaks. (ECF No. 32.) LEAs oppose the motion. (ECF Nos. 43, 52.)

17 On review of an administrative decision in an IDEA case, the court “shall hear additional

18 evidence at the request of a party.” 20 U.S.C. § 1415(i)(2)(C)(ii). “Additional” evidence means

19 “supplemental.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993).

20 The reasons for supplementation will vary; they might include gaps in the

administrative transcript owing to mechanical failure, unavailability of a witness,

21 an improper exclusion of evidence by the administrative agency, and evidence

concerning relevant events occurring subsequent to the administrative hearing.

22 The starting point for determining what additional evidence should be received,

however, is the record of the administrative proceeding.

23 The determination of what is “additional” evidence must be left to the discretion

of the trial court which must be careful not to allow such evidence to change the

24 character of the hearing from one of review to a trial de novo.

25 Id. (citation and ellipses omitted).

26 “[E]vidence that is non-cumulative, relevant, and otherwise admissible constitutes

27 ‘additional evidence’ that the district court ‘shall’ consider pursuant to 20 U.S.C.

28 § 1415(i)(2)(C)(ii).” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin.

32

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1 Hearings, 652 F.3d 999, 1005 (9th Cir. 2011).

2 Here, J.B. seeks to supplement the record with two declarations. The first declaration is

3 from Starlett Armstrong, clinical director of Madison Oaks. Ms. Armstrong has been responsible

4 for overseeing implementation of J.B.’s therapeutic programming. (See ECF No. 33.) The second

5 declaration is from Diane Carter, a teacher at Madison Oaks. Ms. Carter has been responsible for

6 providing direct academic instruction to J.B. (See ECF No. 33.)

7 J.B. contends that this supplemental evidence is relevant to the additional remedies he

8 seeks in order to address his significant deficits and the failure of LEAs to provides him a FAPE.

9 He also contends that the evidence underscores the need for one-to-one aide services to

10 adequately support his behavioral and academic intervention.

11 LEAs oppose the motion to supplement. They contend that the declarations are confusing

12 and would not assist the Court without further clarification; that the introduction of the

13 declarations would contravene the “Snapshot Rule”; and that the declarations, by their nature, call

14 for the Court to retry issues already heard and determined by the ALJ. (ECF No. 43.) Finally,

15 LEAs contend that the declarations are directly contradicted by emails exchanged between LEAs’

16 staff and declarants, casting doubt on the credibility of the declarants. (ECF No. 52.)

17 The Court disagrees with and rejects LEAs’ contentions.20

18 First, the Court does not find the declarations to be confusing, in need of further

19 clarification, or in violation of the Snap Shot Rule, for the purpose for which J.B. is seeking to

20 introduce the evidence—to support the additional remedies that J.B. seeks to address his deficits

21 and LEAs’ failure to provide him a FAPE, including the need for one-to-one aide and other

22 support so that he can access his education. In other words, J.B. does not seek to use the evidence

23 to evaluate in hindsight the actions of LEAs and the IEP team but instead seeks only to support

24 the remedies he seeks for denial of FAPE. Use of the evidence for this purpose does not violate

25 the Snap Shot Rule.

26

20

The Court has also reviewed the other specific objections LEAs raise in opposition to the declarations. (See

27 ECF Nos. 50, 51.) The Court declines to address each of the objections individually but keeps the objections in mind

in reviewing the declarations and will consider only those portions of the declarations that the Court deems to be

28 admissible.

33

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1 The declarations also do not call for the Court to retry issues already heard and determined

2 by the ALJ. Rather, the declarations merely provide additional information on the status of J.B. in

3 the months following placement at Madison Oaks and the need for additional compensatory

4 remedies to allow J.B. to access his education.

5 Finally, the email exchange between LEAs’ staff and the declarants does not impinge on

6 the declarants’ credibility to such an extent as to render the declarations inadmissible. The email

7 exchange occurred in May and June 2019, shortly after J.B. was first enrolled in Madison Oaks.

8 (See ECF No. 52.) In contrast, the declarations were signed in October 2019, after J.B. had been

9 enrolled in Madison Oaks for approximately five months. (See ECF Nos. 34, 35.) That the emails

10 indicate that J.B. was in a different place behaviorally and academically in May-June 2019 than

11 the declarations indicate he was at as of October 2019 does not in any way impinge on the

12 declarants’ credibility regarding J.B.’s status and needs.

13 The Court finds the proposed supplemental evidence to be non-cumulative, relevant, and

14 otherwise admissible. See 20 U.S.C. § 1415(i)(2)(C)(ii). The Court will thus grant the motion to

15 supplement

16 VII. ANALYSIS OF WHETHER LEAs DENIED J.B. A FAPE

17 As summarized above, the ALJ found that LEAs denied J.B. a FAPE from January 4, 2017,

18 through the remainder of the 2016-17 school year, and during the 2017-18 school year, by failing

19 to offer J.B. adequate goals, assessments, plans, counseling, and other services. LEAs do not, for

20 the most part, challenge these findings on the merits.

21 Rather, LEAs focus their challenge on the ALJ’s finding that beginning on May 10, 2018,

22 LEAs denied J.B. a FAPE by not offering a more restrictive placement based on his history of

23 frequent, intense, and dangerous behavior. As discussed below, the Court recommends that this

24 finding be affirmed.

25 A. Whether the ALJ’s decision is entitled to deference on issues raised by LEAs.

26 LEAs spend a significant portion of their opening brief on appeal arguing that portions of

27 the ALJ’s decision with which LEAs disagree are not thorough and careful and are not, therefore,

28 entitled to deference.

34

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1 The ALJ’s decision is 42-pages long, single-spaced. The decision contains an in-depth

2 discussion of applicable law (AR 3880-82), a lengthy and detailed discussion of the factual

3 background of the case (AR 3863-80), and detailed explanations of the ALJ’s findings on each of

4 the issues raised by the parties (AR 3883-96). The decision also includes a discussion of the

5 testimony of most of the witnesses that testified during the multiple-day hearing, an explanation

6 for most witnesses of whether the ALJ found the witness to be persuasive and, where applicable,

7 the specific portions of a particular witness’s testimony that the ALJ did not find persuasive and

8 why. For example, the ALJ’s discussion of Dr. Solomon’s testimony and report continues for

9 more than three pages and includes an explanation of the specific portions of Dr. Solomon’s

10 testimony that the ALJ found to be unpersuasive and why. (See AR 3875-78.) Similarly, the

11 ALJ’s discussion of Ms. Tjenderson’s testimony and the testing this witness conducted continues

12 for more than a page and includes an explanation as to why the ALJ found Ms. Tjenderson’s

13 testimony to raise “signification questions about her objectiveness.” (AR 3879-80.)

14 The Court has conducted an independent review of the entire record and finds that, with

15 exceptions discussed below, the ALJ’s decision is thorough and careful and therefore entitled to

16 deference. See R.B., 496 F.3d at 937; Amanda J., 267 F.3d at 889.

17 1. Whether the ALJ’s decision improperly fails to analyze LEAs’ proposed placement

at Devereux.

18

LEAs argue that the ALJ’s decision is not thorough and careful because it does not include

19

an analysis of the District’s offer of placement at Devereux on December 14, 2018, and at the

20

February 1, 2019 IEP meeting (ECF No. 37 at 18). LEAs also argue that the ALJ’s placement at

21

Madison Oaks is inappropriate because the ALJ failed to analyze the District’s offer of Devereux.

22

As LEAs point out, the ALJ’s decision does not analyze the offer of placement at Devereux

23

and explicitly states that the appropriateness of the District’s offer of residential placement was

24

not reached since LEAs “are no longer proposing Devereux as an appropriate placement.” (AR

25

3896, 3898.) The record supports these statements by the ALJ. In LEAs’ amended prehearing

26

conference statement, LEAs listed issue 1 as follows: “Does the District’s IEP offer of placement

27

at Devereux offer J.B. a FAPE in his least restrictive environment (“LRE”)?” (AR 642.)

28

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1 Subsequently and prior to the hearing, LEAs filed a notice of withdrawal of LEAs’ issue number

2 1, stating that they “hereby withdraw the LEAs Issue No. 1” without prejudice. (AR 756-57.) The

3 notice of withdrawal is dated March 18, 2019, the day before the hearing began. (Id.)

4 During a March 19, 2019, prehearing conference, the ALJ acknowledged the receipt of the

5 notice of withdrawal of LEAs’ issue number 1 and confirmed with LEAs’ counsel that they were

6 withdrawing that issue. (AR 3976.) After receiving confirmation from LEAs’ counsel, the ALJ

7 deemed issue 1 to be withdrawn. (AR 3976-80.) After going over the remaining issues with

8 counsel and discussing other preliminary issues, the hearing began. (AR 3980-88.) LEAs again

9 confirmed that they had withdrawn issue 1 in their post-hearing closing brief, stating that they

10 “withdrew Issue 1 on March 18, 2019.” (AR 775 n.1.)

11 On appeal, LEAs do not deny that they withdrew issue 1, the offer of Devereux, prior to the

12 hearing. LEAs also do not argue on appeal that the offer of Devereux was an offer of FAPE.

13 Instead, LEAs argue that, despite their withdrawal of Devereux, the ALJ was still required by

14 Ninth Circuit precedent to analyze placement at Devereux and that because the ALJ’s decision

15 failed to do so, the decision is not thorough nor careful and is accordingly not entitled to

16 deference.

17 In support of their argument, LEAs cite Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,

18 1314 (9th Cir. 1987). In Gregory K., the Ninth Circuit stated that de novo review of the record

19 “must focus primarily on the District’s proposed placement, not on the alternative that the family

20 preferred.” 811 F.2d at 1314. However, there is no indication in Gregory K. that the school

21 district had abandoned the issue of whether its proposed placement was appropriate, or that the

22 proposed placement was made outside of the IEP process.21 Further, the agency decision in

23 Gregory K. found the school district’s proposed placement to be appropriate. The district court

24 reversed the agency’s finding that the proposed placement was appropriate, and the Ninth Circuit

25 reversed the district court’s decision and upheld the agency’s decision on the issue of appropriate

26

27 21

Here, as the ALJ found, LEAs’ December 18, 2018 offer of placement at Devereux was made outside the

IEP process and that LEAs’ failure to convene an IEP meeting after Parents declined to consent to placement at

28 Devereux resulted in the denial of a FAPE. (AR 3890, 3892.)

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1 placement.22 Id. at 1315.

2 In the present case, LEAs withdrew their offer of Devereux as an appropriate placement

3 prior to the hearing before the ALJ and do not argue on appeal that Devereux was an appropriate

4 placement. Thus, the only placements at issue before the ALJ, and on appeal, are the Nexus

5 Program and Madison Oaks. The ALJ was not required, under these circumstances, to discuss or

6 analyze whether Devereux was an appropriate placement, and the ALJ’s failure to discuss this

7 non-issue does not indicate that the ALJ’s decision was not careful or thorough.

8 Moreover, LEAs presented very little evidence to the ALJ regarding Devereux. The

9 evidence presented by LEAs indicates that the District’s representative reached out to Devereux

10 on one to two occasions over several months, that the representative did not mention or discuss

11 J.B.’s elopement behaviors with Devereux, and that no one from the District visited Devereux or

12 otherwise explored whether Devereux would be an appropriate placement in light of J.B.’s

13 elopement issues. (See AR 4064-4105, 4133-36, 4888-4909, 4173-91.) In contrast, Parent testified

14 that she visited Devereux, took a thorough tour of the Devereux campus, and obtained extensive

15 information about Devereux from Devereux itself and from other sources such as online reviews

16 and discussions with other parents. Parent testified that her visit and tour, along with the

17 additional information she obtained, raised a lot of red flags, and demonstrated that Devereux was

18 not a safe placement for her child.

19 For example, Parent testified that there are significant elopement problems at Devereux;

20 that there is a large expanse of the Devereux campus that is not fenced and that this area is easily

21 accessible to students and also abuts on a wide and busy road; that numerous Devereux students

22 have eloped from the campus; and that a student had recently eloped from Devereux and was hit

23 by a car and killed. (See AR 5595-5602.) Parents’ retained expert also visited Devereux and

24 testified regarding aspects of Devereux that would make it an inappropriate placement for J.B.,

25 including the risk of elopement. (AR 4586-93).

26

27 22

The Ninth Circuit also reversed the district court and upheld the agency’s decision on other issues,

including the basis for the student’s eligibility for special education and whether the student was receiving education

28 under an IEP. See Gregory K., 811 F.2d at 1312-14.

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1 The evidence presented by Parents regarding Devereux was, for the most part,

2 uncontradicted by LEAs. This evidence, in combination with the extensive testimony and other

3 evidence in the record regarding J.B.’s elopement behavior, demonstrates that placement at

4 Devereux would not have been appropriate.

5 2. Whether the ALJ improperly substituted her judgment for that of LEAs’ witnesses.

6 LEAs argue that the ALJ’s placement and assessment reimbursement remedies directly

7 contradict the evidence in the record and the ALJ’s own credibility findings and are, instead,

8 based on the ALJ’s substituted judgment, destroying any deference due to the ALJ’s decision. In

9 support of this argument, LEAs contend that there is no evidence that anyone recommended

10 residential placement to the IEP team or LEAs on or before May 10, 2018, and that there was thus

11 no basis on or before May 10, 2018, for LEAs to have reached a conclusion that residential

12 placement was needed. LEAs also argue that the ALJ’s decision reaches conclusions inconsistent

13 with her credibility determinations.

14 LEAs’ arguments are intertwined with their challenges to the ALJ’s finding that residential

15 placement was required beginning on May 10, 2018, and the ALJ’s requirement that LEAs

16 reimburse Parents for the cost of Dr. Solomon’s psychoeducational assessment. The Court has

17 reviewed the testimony and other evidence in the record and rejects LEAs’ contention that the

18 ALJ substituted her own judgment for that of the witnesses. To the contrary, as discussed below,

19 the Court finds the ALJ’s decision on these issues to be based on and supported by the testimony

20 of the witnesses and the other evidence in the record.

21 3. Whether the ALJ’s decision contains consequential clear errors of fact.

22 LEAs argue that the ALJ’s decision contains consequential factual errors and thus was not

23 careful and thorough. In support, LEAs cite to two areas in which they believe the ALJ erred:

24 (1) the timespan between when LEAs offered Devereux in December 2018 and again in February

25 2019; and (2) the relevant dates of Madison Oaks’ certification. LEAs argue that both of these

26 mistakes are material to the ALJ’s decision and that thus the ALJ’s decision is not thorough and

27 careful and should not be granted deference. The Court disagrees.

28 ///

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1 a. Timespan between initial offer of Devereux and February 2019 IEP team

meeting

2

The ALJ’s decision states that once Parents did not consent to LEAs’ informal offer of

3

Devereux in December 2018, LEAs “had an obligation to convene an IEP meeting to discuss and

4

formally offer an appropriate placement,” and that LEAs “failed to convene an IEP team meeting

5

until February 2019, four months after the amendment [for placement at Devereux] was offered.”

6

(AR 3890.) The ALJ’s statement that there was a four-month timespan between the offer of

7

placement at Devereux and the IEP team meeting is an error.

8

The evidence in the record establishes that the informal offer of placement at Devereux was

9

made on December 18, 2018, just before the winter holiday break; that Parents immediately

10

notified LEAs that they would not consent to that placement; that LEAs’ offices were closed

11

during the break; that when the break was over, the first week of January 2019, Parents attempted

12

to get an IEP team meeting on the schedule as soon as possible; and that the IEP team meeting did

13

not occur until February 1, 2019.23 (AR 5603-04.)

14

The ALJ’s decision states the correct dates of December 18, 2018, for LEAs’ informal

15

offer of Devereux, and February 1, 2019, for the IEP team meeting. (AR 3875, 3876, 3890, 3892.)

16

Yet, the ALJ’s decision incorrectly states that the timespan between the December 18, 2018, offer

17

and the February 1, 2019 IEP team meeting was four months, rather than less than two months.

18

This error appears to be a typographical error but could possibly be a calculation error. Either

19

way, the Court does not find that this error is material to the ALJ’s conclusions or affects the

20

deference to be given to the ALJ’s decision.

21

b. Date of Madison Oak’s certification

22

The ALJ’s decision states that Madison Oaks received California Department of Education

23

(“CDE”) certification in December 2018. (AR 3875.) This is an error because the evidence in the

24

record establishes, and the parties agree, that Madison Oaks was not certified in December 2018,

25

26 23

Parents contend that the February 1, 2019 IEP team meeting, and offer of Devereux at that meeting, also

violated the IDEA because a member of the IEP team, whose attendance is mandatory, was not present at the

27 meeting, and that member’s absence was not waived. (ECF No. 44 (citing 34 C.F.R. § 300.321).) Because LEAs

withdrew the offer of Devereux as an appropriate placement, the ALJ did not reach the issue of whether the

28 February 1, 2019, offer violated the IDEA.

39

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1 but instead received its certification on March 18, 2019. (See ECF No. 8 at 5; ECF No. 20 at 38;

2 ECF No. 26 at 3.)

3 LEAs argue that this error is material because J.B. is claiming that LEAs should have

4 offered placement at Madison Oaks, and that the date of certification is central to whether LEAs

5 could or should have offered placement at Madison Oaks. LEAs contend that the ALJ’s error on

6 the certification date is thus a clear, material, and consequential error of fact that reduces or

7 eliminates any deference owed to the ALJ’s decision. The Court disagrees.

8 The evidence in the record demonstrates that as of December 2018, Madison Oaks already

9 had students from California who had been placed there through IEPs; that Madison Oaks was

10 working through the certification process with the CDE; and that Madison Oaks was expected to

11 be certified by CDE any day. (AR 5615-16.) There is also evidence that the District was aware

12 that Madison Oaks had certification pending with the CDE. Specifically, Kylee Luchetti, a

13 District employee and a witness for LEAs, testified that that she contacted Madison Oaks and

14 learned that Madison Oaks was not currently CDE certified but that they were in the process of

15 gaining CDE certification and expected to have it any day. (AR 4091-92, 4095, 4124-25.) This

16 evidence is significant because, under California law, an out-of-state non-public school (“NPS”),

17 such as Madison Oaks, can apply for certification from the CDE once a California student has

18 been placed there through the IEP process. See Cal. Ed. Code § 56365(i). The CDE then has 120

19 days from the date of the NPS’s application to decide certification, and if the NPS is approved,

20 and meets all requirements, certification is retroactively effective to the application date. Cal. Ed.

21 Code § 56366.1(e), (f).

22 Here, as noted, the evidence demonstrates that as of December 2018, Madison Oaks had

23 California students who had been placed there through the IEP process, that Madison Oaks had

24 applied for CDE certification, and CDE certification was expected to be approved any day. In

25 light of this evidence, and state law providing for retroactive certification, it was reasonable to

26 conclude that Madison Oaks’ certification would be effective retroactively to December 2018.

27 Further, the ALJ recognized in her decision that she had authority to reimburse, as

28 compensatory education, a student’s ongoing placement at a noncertified school. (AR 3898

40

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1 (citing Ravenswood City Sch. Dist. v. J.S., 2012 WL 2510844, *7 (N.D. Cal. 2012).) This

2 recognition confirms that the ALJ understood that Madison Oaks was not yet certified in

3 December 2018.

4 Under these circumstances, the Court does not find the ALJ’s statement that Madison Oaks

5 received certification in December 2018, rather than stating that Madison Oaks was retroactively

6 certified to December 2018, to be a consequential error, and thus does not find that this error

7 affects the deference to be given to the ALJ’s decision.24

8 4. Whether the ALJ’s decision improperly fails to analyze the Parent’s testimony or

evaluate her credibility.

9 LEAs argue that the ALJ’s decision is not thorough and careful, and thus not entitled to

10 deference, because it fails to analyze Parent’s testimony or evaluate her credibility. In support of

11 their argument, LEAs cite to J.G. ex rel. Jimenez v. Baldwin Park Unified Sch. Dist., 78 F. Supp.

12 3d 1268, 1282 (C.D. Cal. 2015). In J.G., the court found that, “rather than consider [the parent’s]

13 unique perspective, the ALJ improperly discounted her testimony. In fact, the ALJ discussed, and

14 summarily dismissed, only one small portion of Ms. Jimenez’s testimony, stating that ‘her

15 testimony that she wanted to try something different was not enough to credibly challenge the

16 Districts’ witnesses’ opinions regarding J.G.’s progress.” Id. (internal quotation marks omitted).

17 Further, the small portion of the parent’s testimony the ALJ did discuss was “largely irrelevant”

18 to the issue of whether the school district had complied with its obligation to provide a FAPE. Id.

19

24

20 LEAs also argue that they could not place J.B. at Madison Oaks through the IEP process prior to the date

the certification was received by the school. This argument is inconsistent with the California Education Code,

21 which provides that a nonpublic, nonsectarian school located outside the state is eligible for certification by CDE

“only if a pupil is enrolled in a program operated by that school or agency pursuant to the recommendation of an

22 individualized education program team in California, and if that pupil’s parents or guardians reside in California.”

Cal. Educ. Code § 56365(i). Thus, an NPS such as Madison Oaks cannot even apply for certification with CDE until

23 and unless a California student, such as J.B., has been placed there through an IEP.

LEAs cite several OAH decisions for the proposition that an IEP team cannot place a student at a non-

certified non-public school. (See ECF No. 37 at 22.) These decisions are inapposite because they deal with in-state

24

non-public schools and thus do not fall within the retroactive certification provisions for out-of-state non-public

schools. See Parent v. Capistrano Unified Sch. Dist., 119 LRP 32339, *48 (OAH July 15, 2019) (The IEP team

25 could not fund or place a student at Halstrom, a non-certified private school located in California, because

“[f]unding a non-certified private school is prohibited at the IEP team level as part of an offer of FAPE.”); Parents

26 v. Carlsbad Unified Sch. Dist., 117 LRP 14170, *9 (“Although Parents also requested placement at New Vista

[located in Orange County, California], District was not required to, and could not place Student there because New

27 Vista was not a certified non-public school.”); Parents v. Manhattan Beach Unified Sch. Dist., 74 IDELR 150, *12

(OAH Oct. 10, 2018) (“As Pacific Point Academy [located in Santa Monica, California] was not certified by the

28 state of California as a non-public school, the team could not place Student there.”).

41

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1 Here, in contrast to J.G., although the ALJ did not explicitly discuss or analyze Parent’s

2 testimony or her credibility, there is no indication that the ALJ found Parent to be not credible or

3 otherwise discounted Parent’s testimony. Indeed, the ALJ’s decision is consistent with a finding

4 that the Parent’s testimony was deemed to be credible, and LEAs have not cited to any evidence

5 in the record indicating otherwise.

6 A review of Parent’s testimony demonstrates her extensive knowledge, familiarity, and

7 unique perspective regarding J.B.’s special needs. See Amanda J. ex rel. Annette J. v. Clark

8 County Sch. Dist., 267 F.3d 877, 891 (9th Cir. 2001) (“[B]ecause [parents] observe their children

9 in a multitude of different situations, they have a unique perspective of their child’s special

10 needs.”). Other witnesses also testified regarding Parent’s extensive knowledge of and familiarity

11 with J.B.’s needs, and the reliance of witnesses on Parent for information needed to conduct

12 assessments of J.B., and for assistance in handling J.B. when he engaged in maladaptive

13 behaviors.

14 Moreover, there is an extensive record here, consisting of a 6,859-page administrative

15 record that includes testimony from at least fourteen witnesses. “In cases, like this one, where

16 there is an extensive record and testimony, the ALJ is not required to mention every detail when

17 discussing the record. . . .” Mary Struble v. Fallbrook Union High Sch. Dist., 2011 WL 291217,

18 *4 (S.D. Cal. 2011). This is especially the case where there were multiple experts with more

19 expertise and relevant opinions than Parent on the critical issues presented.

20 Finally, the Court has reviewed the testimony of Parent and finds it to be consistent with

21 the ALJ’s conclusions regarding FAPE.

22 Under these circumstance, the ALJ did not err by failing to include an explicit discussion of

23 Parent’s testimony or a credibility finding regarding that testimony.

24 B. Whether the ALJ’s finding that residential placement was required as of May 10, 2018,

is supported by a preponderance of the evidence.

25 The ALJ determined that J.B. required residential placement as of May 10, 2018,

26 explaining as follows:

27

55. The Nexus program, while at first an appropriate program for Student, began

28 to no longer meet his needs. Following Student’s October 18, 2017 IEP team

42

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1 meeting where the team implemented his behavior program, his behavior spiraled.

He was suspended for punching other students, striking a teacher with a fire

2 extinguisher, and bringing a pocket knife to school. Student’s on-going mental

health was “slippery” as he would cycle through positive periods and

3 extraordinarily dark periods. Student’s behaviors, while difficult, were being

managed by the behavior classroom at the Nexus program. Even Student’s expert

4 witnesses did not believe a more restrictive placement was necessary in the 2017-

2018 school year. Ms. Knopf, Student’s trusted behaviorist and key member of

5 his outside of school support system never addressed residential treatment for

Student until his manifestation determination review meeting on September 11,

6 2018. Ms. Swaffer, his counselor during the 2017-2018 school year also testified

residential treatment was not a desired outcome as the family wanted to maintain

7 the family unit.

8 56. Despite efforts to support Student’s behaviors, they continued to decline. On

May 10, 2018, the team agreed to an IEP amendment to initiate a twice daily

9 pocket and sock check to ensure Student was not carrying any contraband he

could turn into a weapon. Student was searched prior to coming to school and

10 once he arrived at school out of fear he transported a weapon to harm himself or

others. This intrusive form of behavior management, similar to what a criminal

11 suspect endures rather than a fourth grade boy, was sufficient notice to Tuolumne

County and Curtis Creek of Student’s declining behaviors and increasing

12 volatility. His active fantasy life took on a darker, more foreboding presence and

was reflected in the violent and fantastical drawings he produced at school.

13 Despite this knowledge, the adjustments the IEP team made to Student’s IEP were

insufficient to meet his needs. Tuolumne County and Curtis Creek’s placement at

14 the Nexus program was not sufficiently structured or restrictive to meet Student’s

behavior and learning needs beginning May 10, 2018. By May 10, 2018, the

15 evidence showed that Student required a more restrictive placement than the

Nexus program.

16

57. Further, Tuolumne County and Curtis Creek’s December 18, 2018 IEP

17 amendment that offered Student placement at Devereux outside the IEP process is

a tacit admission that at least by that date, a more restrictive placement was also

18 intended by Tuolumne County and Curtis Creek.

19 58. As to Issue 3(h), Student did not meet his burden of proof that he required a

more restrictive placement during 2017-2018 school year. Student met his burden

20 that he required a more restrictive placement from May 10, 2018, through the date

of filing of Student’s due process complaint, thus prevailing on Issues 4(i) and

21 5(c). The failure to offer a more restrictive placement severely impacted Student’s

ability to access his education. This failure denied Student a FAPE from May 10,

22 2018, through the time the case was filed.

23 (AR 3891-92.)

24 Both LEAs and J.B. challenge the ALJ’s determination that residential placement was

25 required as of May 10, 2018. LEAs argue that residential placement was not required until LEAs

26 made the offer of Devereux in December 2018; J.B. argues that residential placement was

27 required on or before January 4, 2017.

28 ///

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1 1. Whether the preponderance of the evidence supports the ALJ’s finding that

residential placement was required on and after May 10, 2018.

2

LEAs argue that the preponderance of the evidence does not support J.B.’s residential

3

placement at Madison Oaks. LEAs do not dispute that J.B. needs residential placement and admit

4

that residential placement was required by the time of the hearing in March 2019. LEAs also

5

acknowledge that they offered residential placement on December 18, 2018. Further, LEAs do not

6

challenge the underlying facts cited by the ALJ in her opinion, which are set forth above.

7

Nevertheless, LEAs dispute the ALJ’s determination that residential placement was required as of

8

May 10, 2018.25 In support of their position, they contend that J.B. made progress after May 10,

9

2018; that the ALJ’s finding that residential placement was required as of May 10, 2018, is based

10

on the ALJ’s substituted judgment; and that the ALJ used the wrong legal standard in ordering a

11

change in placement.

12 a. Whether a finding of progress after May 10, 2018, particularly in behavior, is

supported by a preponderance of the evidence.

13

LEAs argue that the preponderance of the evidence demonstrates that J.B. made

14

educational progress in the 2018-19 school year, as well as behavioral progress, and that this

15

progress fully supports LEAs’ continued offer of placement in the Nexus program and not a more

16

restrictive residential placement:

17

Plaintiff made particular progress in his primary area of need, behavior: his rate of

18 suspension in 2018-19 was less than half of the previous year’s. His behaviorist,

Ms. Simon, saw “behavior of concern” in only 3% of her classroom visits in the

19 2018-19 school year, and staff reported no aggression for two consecutive

months. Ms. Simon further reported Plaintiff “[has] done really well with us,”

20 except for one day, during the initial part of the 2018-19 school year and her data

showed that from the start of the school year through September 11, 2018,

21 Plaintiff earned maximum behavior points on all but one day. By comparison, in

2017-18, Plaintiff earned a perfect behavior score on 49% of days and an

22 acceptable score 73.4% of days. Plaintiff’s progress in the less restrictive Nexus

after May 10, 2018, validates his continued placement there, until residential

23 placement was offered on December 14, 2018.

24 (ECF No. 37 at 26 (citing ER 122, 123, 296, 298-99, 426, 428).)

25 LEAs thus rely on the testimony of Ms. Simon, a board-certified behavior analyst who was

26

25

LEAs also dispute the ALJ’s determination of residential placement at Madison Oaks as opposed to

27 LEAs’ offer of placement at Devereux. As discussed above, LEAs withdrew the offer of placement at Devereux

prior to the start of the hearing and thus placement at Devereux was no longer at issue. Rather, the only offer on the

28 table at the time of the hearing was Nexus.

44

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1 working with Tuolumne County as an independent contractor during the 2018-19 school year, that

2 (1) the rate of suspension for the 2017-18 school year was 0.93 days per month, and that the rate

3 for the 2018-19 school year was 0.42; and (2) Ms. Simon had seen J.B. twice when he was

4 dysregulated, and that “staff have reported there’s been no physical aggression since the end of

5 January [2019] when he was 5150.” (AR 6167, 6181, 6170, 6181-82.) LEAs also cite to a

6 behavior chart prepared by Ms. Simon dated September 10, 2018. (AR 1203-04.) This behavior

7 chart states that from the start of the 2018-19 school year to September 11, 2018, J.B. earned

8 maximum behavior points on all but one day, compared to the 2017-18 school year when J.B. had

9 73.4 percent of days in the good behavior range. (AR 1203-04.)

10 However, as the ALJ noted, LEAs offered residential placement in December 2018. This

11 demonstrates that, by that date, LEAs believed residential placement was appropriate, despite the

12 lower rate of suspensions during the first part of the 2018-19 school year.26 Further, Ms. Luchetti,

13 who was the special education coordinator for the District, testified that between September and

14 December 2018, J.B.’s “behavior pattern had continued with a 5150 and multiple behaviors at

15 school that were concerning, necessitating an offer of a change of placement” in December 2018,

16 and that this was a pattern of behaviors that had continued from the previous year. (AR 4908.)

17 She also testified that the September 2018 manifestation determination was conducted based on

18 J.B.’s suspensions and behaviors during the 2017-18 school year. (AR 4145.) Thus, even if J.B.’s

19 behavior for the first month or so of the 2018-19 school year may have slightly improved, there is

20 also evidence that J.B.’s maladaptive behaviors were continuing unabated. Moreover, the

21 evidence confirms the ALJ’s factual findings, including that J.B.’s mental health and behaviors

22 are “slippery” as he cycles through positive periods and extraordinarily dark periods. LEAs’

23 selective, cherry-picking of evidence covering a short period of time when J.B.’s behavior

24 improved, while ignoring the extensive evidence that weighs against its position, is disingenuous.

25 The Court finds that the preponderance of the evidence demonstrates that J.B.’s behavior

26

26

There is also evidence in the record indicating that LEAs’ staff members may have been intentionally

27 avoiding suspensions of J.B., perhaps in an attempt to avoid a manifestation determination review meeting, which is

required if a student receives more than ten days of suspensions in a school year and those suspensions meet certain

28 other criteria. See 34 C.F.R. § 300.536.

45

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1 deteriorated, and his maladaptive behaviors escalated during the 2017-18 school year such that,

2 by May 10, 2018, he needed a more restrictive placement and that this need continued during the

3 2018-19 school year up to the date J.B. filed his due process complaint.

4 b. Whether the ALJ’s order for residential placement as of May 10, 2018, is

impermissibly based on the ALJ’s substituted judgment.

5

LEAs argue that because there is no record of residential placement being discussed or

6

even requested on or before May 10, 2018, and because residential placement was not discussed

7

or referenced with the IEP team or LEAs prior to June 25, 2018, the ALJ’s determination that

8

residential placement was required as of May 10, 2018, is based on the ALJ’s substituted

9

judgment. The Court disagrees.

10

The IDEA requires a district to provide an education that meets a special education

11

student’s “academic, social, health, emotional, communicative, physical and vocational needs.”

12

Ashland Sch. Dist. v. Parents of Student E.H., 587 F.3d 1175, 1185 (9th Cir. 2009) (citation

13

omitted). In fulfilling this duty, a district has an independent obligation to “ensure that a

14

continuum of alternative placements is available to meet the needs of [the student] for special

15

education and related services.” 34 C.F.R. § 300.115(a). The continuum of alternative placements

16

may include “placement in a public or private residential program,” in the event such a program

17

“is necessary to provide special education and related services to” the student. 34 C.F.R.

18

§ 300.104. Further, a district has an obligation to assess the special education student in all areas

19

of his suspected disability. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 441 (9th

20

Cir. 2010) (citing 20 U.S.C. § 1414(b)(3); Cal. Educ. Code § 56320(f)).

21

Here, the preponderance of the evidence demonstrates that J.B.’s behavior was

22

deteriorating, and his maladaptive behaviors were escalating during the 2017-18 school year such

23

that, by May 10, 2018, he needed residential placement. LEAs had an independent obligation to

24

ensure that they considered the continuum of alternative placements, including private residential

25

placement, to meet J.B.’s needs. That the IEP team had not discussed residential treatment does

26

not relieve LEAs of their independent obligation to consider whether residential placement was

27

necessary to meet J.B.’s needs and provide J.B. with a FAPE.

28

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1 c. Whether the ALJ’s decision relies on an incorrect legal standard for ordering a

change in J.B.’s placement.

2

LEAs argue that the ALJ relied on an incorrect legal standard for ordering a change in

3

J.B.’s placement. LEAs contend that the ALJ should not have relied on the addition of the

4

intervention of pocket checks at Nexus as a trigger for residential placement, contending that the

5

“ALJ incorrectly seized on pocket checks as a measure of placement, but this intervention is not

6

atypical for special education, and does not relate to whether more restrictive placement is

7

warranted.” (ECF No. 37 at 28.)

8

However, the ALJ did not merely rely on the twice-daily pocket (and sock) checks in

9

finding that residential placement was required as of May 10, 2018. Rather, the ALJ determined

10

that the addition of this measure, in light of J.B.’s unabated and escalating maladaptive behaviors,

11

was sufficient to put LEAs on notice of J.B.’s escalating and unabated maladaptive behaviors and

12

increasing volatility. Prior to this, J.B.’s behavior had spiraled. He had been suspended for

13

punching other students, striking a teacher with a fire extinguisher, and bringing a pocket knife to

14

school. His on-going mental health was “slippery,” as he cycled through positive periods and

15

extraordinarily dark periods. His “active fantasy life took on a darker, more foreboding presence

16

and was reflected in the violent and fantastical drawings he produced at school.” (AR 3891.) The

17

ALJ’s reliance on the addition of the twice-daily pocket and sock checks was not improper in

18

light of the other evidence in the record indicating that J.B. required residential placement.

19

2. Whether the preponderance of the evidence supports a finding that residential

20 placement was required as of January 4, 2017.

21 J.B. argues that the failure of LEAs to offer him residential placement by January 4, 2017,

22 denied him a FAPE. He contends that LEAs “had ample notice of J.B.’s behaviors across all

23 settings upon his arrival” in the district, and that “J.B.’s dangerous behaviors and mental health

24 issues continued unabated on and after January 4, 2017.” (ECF No. 40-1 at 26-27.) He contends:

By the end of the 2016-17 school year, while receiving both private and school-

25 based services, J.B. was suspended twice and was documented to engage in

maladaptive, violent, and aggressive behaviors at school which were apparently

26 not documented on 10 different occasions, e.g.: assaulting District staff across

settings; assaulting peers across settings; being obstinately noncompliant; eloping

27 from class; cursing at District staff; and engaging in self-injurious behaviors, such

as attempting to rip out his own tooth. For almost two school years, District staff

28

47

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1 allowed J.B. [to] remain in psychosis and harm himself and others.

2 (ECF No. 40-1 at 27 (citing AR 2471-71, 5125-5126, 3842-46).) Thus, J.B. contends that he

3 required a more restrictive placement since at least January 4, 2017. He further contends that, in

4 ruling against him on this issue, the ALJ improperly placed the burden on him and his experts to

5 determine placement.

6 In finding that May 10, 2018, and not a date prior to that, was the date on which residential

7 placement was required, the ALJ cited the testimony of two of J.B.’s witnesses, Ms. Swaffar and

8 Ms. Knopf. The ALJ stated:

9 The Nexus program, while at first an appropriate program for Student, began to

no longer meet his needs. Following Student’s October 18, 2017 IEP team

10 meeting where the team implemented his behavior program, his behavior spiraled.

He was suspended for punching other students, striking a teacher with a fire

11 extinguisher, and bringing a pocket knife to school. Student’s on-going mental

health was “slippery” as he would cycle through positive periods and

12 extraordinarily dark periods. Student’s behaviors, while difficult, were being

managed by the behavior classroom at the Nexus program. Even Student’s expert

13 witnesses did not believe a more restrictive placement was necessary in the 2017-

2018 school year. Ms. Knopf, student’s trusted behaviorist and key member of his

14 outside of school support system never addressed residential treatment for Student

until his manifestation determination review meeting on September 11, 2018. Ms.

15 Swaffer, his counselor during the 2017-2018 school year also testified residential

treatment was not a desired outcome as the family wanted to maintain the family

16 unit.

.....

17

. . . Student did not meet his burden of proof that he required a more restrictive

18 placement during 2017-2018 school year. . . .

19 (AR 3891.)

20 The Court finds the ALJ’s analysis and finding on this point to be careful and thorough and

21 therefore entitled to deference. The Court’s independent review of the evidence confirms that J.B.

22 did not demonstrate by a preponderance of the evidence that he needed residential placement

23 beginning on January 4, 2017.

24 Ms. Swaffar testified that she was initially happy with the Nexus program for J.B, and that

25 what J.B. wanted—and what they all wanted—was for J.B. to stay in Nexus, “but J.B. is too sick.

26 He’s too sick.” (AR 5696-97.) Ms. Swaffar explained that despite J.B. having what she

27 characterized as Tuolumne County’s “best” through the Nexus program, J.B. was not making

28 progress:

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1 I think that honestly, I think that he’s had Tuolumne County’s best, but I don’t

think it has helped. He has exactly the same behaviors and symptoms as when he

2 came in. Because he has so much internally . . . going on and it takes so much of

his energy, he’s not able to access academics. He’s not able to access social stuff.

3 He’s not able to do the things that people do in school.

4 (AR 5681-82.)

5 As to when she made a determination that Nexus was no longer working for J.B. and that

6 J.B. needed residential placement, Ms. Swaffar testified:

7 Well, you know, I wrote the – I had the phone call with Corrie in I think it was

October of 2017, but we’ve actually had a conversation about it earlier saying you

8 know, some kids – and I don’t ever recommend, I only just put out information

and say, you know, some children need a higher level of care in order to be

9 successful. People are tired. The teacher is tired. The staff is tired.

You know, when we talk about elopement, I mean this kid eloped from school,

10 and one time he was gone for two and a half hours. . . .

11 ....

Probably 2016 we had the initial conversation, maybe even 2015, end of 2015.

12 But it was just casual conversation. It’s not something that I did a note about, but

it was just basically sometimes if things are too hard at school, if he’s not able to

13 access his academics at school, and so Mom and Dad were not for residential

treatment at that time at all. They wanted to – we all wanted J.B. to stay home. It

14 wasn’t about taking him and removing him at all, and I think that’s why parents

hung on so long, but that’s what I think.

15

(AR 5697-98.)

16

Thus, Ms. Swaffar testified that they all wanted J.B. to stay at Nexus and not go into

17

residential placement because they wanted J.B. to stay home. Ms. Swaffar also did not clearly

18

testify as to a specific date on which she believed residential treatment was required. Although

19

she testified that she had been discussing residential treatment with the Parents since 2016, she

20

did not testify that she believed residential treatment was required in 2016 or 2017.

21

Ms. Knopf, J.B.’s trusted behaviorist and a key member of J.B.’s outside of school support

22

system, testified as follows when asked when she thought J.B. needed residential placement:

23

That’s a tough call. Let me think back, if I may, for a second. When I look at

24 some of the behaviors that I experienced with J.B. and I know of J.B., I would say

no later than 2016, easily.

25 He demonstrated some of the most dangerous behaviors that you can’t turn

around that well. And after three and a half years of working with him and very

26 little progress, he cannot sustain when he needs to sustain it.

27 And that’s the bigger piece – is that when I teach these skills to the kids, they

sustain it. They’re be – they’re able to get through that being ruminating and stop

28 – and distorted thinking because they have the nonverbal skills.

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1 J.B. can’t do that when he becomes psychotic. And I believe from my – from my

experience – that J.B. is on the verge of psychosis most of the time. But I can’t

2 diagnose that. I’m not – I can’t diagnose that. But that’s my experience.

3 (AR 4480-81.)

4 Ms. Knopf attended IEP meetings held on March 9, 2016; February 24, 2017; February 9,

5 2018; and September 11, 2018. Despite attending all of these IEP meetings, she first

6 recommended residential placement at the September 11, 2018 IEP meeting. As to why she did

7 not recommend it earlier, she explained that she never recommends residential treatment and does

8 not believe that is her job; that she will talk about residential placement with parents and will

9 educate them about residential placement but will not recommend it because her job is not to

10 advocate but is instead to educate. (AR 4481.)

11 As to why she recommended residential treatment in this instance at the September 11,

12 2018 IEP meeting, Ms. Knopf explained that she and the Parents had a long and extensive

13 conversation about residential and she provided them information about the various residential

14 programs she was aware of because she knew that the Parents were seeking residential and she

15 supported them in that decision. But, again, she was not advocating because “that’s not my job.”

16 (AR 4482.) “At the County, we were always taught you are not an advocator, you are a provider.

17 That was my job. When you advocate, you start losing focus of objectivity and you become

18 subjective.” (Id.)

19 Thus, even Ms. Knopf admitted it was a “tough call” as to when J.B. needed residential

20 placement. Although she testified that she believed it was no later than 2016, she admits that she

21 did not address residential placement with the IEP team prior to the September 11, 2018,

22 manifestation determination review meeting, and did not really discuss residential placement in

23 depth previously. Further, the ALJ found Ms. Knopf’s credibility to be negatively impacted, and,

24 as discussed below, the Court grants deference to that credibility finding. In light of this, and the

25 information noted above, the Court gives no weight to Ms. Knopf’s testimony that she believed

26 J.B. needed residential treatment no later than 2016.

27 Finally, Dr. Solomon testified that it was her opinion that J.B. should have been in

28 residential treatment by the end of 2015:

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1 I think he should’ve been in residential treatment by the end of 2015 when he was

placed. He moved from the charter school to the NeXus program, and then within

2 – while in the NeXus program in the first three months, had more episodes,

including a – a large dangerous one, and – and had just come out of a psychiatric

3 hospital, so was clearly a child who was very fragile and vulnerable. To me, that

would’ve been the time to do it because he’s fragile, he’s vulnerable, but we also

4 had the opportunity to really intervene.

5 (AR 5364.)

6 Although Dr. Solomon’s testimony supports finding that residential placement was needed

7 no later than January 4, 2017, the ALJ found Dr. Solomon’s testimony “unreliable as to when she

8 concluded a residential placement was warranted.”(AR 3878.) As discussed in more detail below,

9 the Court finds the ALJ’s determination on this point to be careful and thorough and will thus

10 defer to the ALJ’s determination that Dr. Solomon’s testimony was unreliable as to when

11 residential placement was needed.

12 The Court finds that the J.B. did not meet his burden of demonstrating that he

13 needed residential placement beginning on January 4, 2017. The Court finds that the

14 preponderance of the evidence demonstrates that J.B. required residential placement

15 beginning on May 10, 2018, and that the failure of LEAs to offer residential placement

16 beginning on May 10, 2018, denied J.B. a FAPE.

17 VIII. ANALYSIS OF REMEDIES

18 Under the IDEA, the reviewing court, “basing its decision on the preponderance of the

19 evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C.

20 § 1415(i)(2)(C)(iii). “Under this provision, ‘equitable considerations are relevant in fashioning

21 relief,’ and the court enjoys ‘broad discretion’ in so doing.” Florence Cty. Sch. Dist. Four v.

22 Carter By & Through Carter, 510 U.S. 7, 16 (1993) (citations omitted). “Courts fashioning

23 discretionary equitable relief under IDEA must consider all relevant factors, including the

24 appropriate and reasonable level of reimbursement that should be required.” Id.; see Sch. Comm.

25 of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359, 369-71 (1985) (parents of

26 a student denied a FAPE are entitled to reimbursement for the costs of “proper” placement or

27 other services that they have independently obtained for their child); Ashland Sch. Dist. v.

28 Parents of Student E.H., 587 F.3d 1175, 1183 (9th Cir. 2009) (“[W]here Parents seek

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1 reimbursement for private school expenses, they ‘are entitled to reimbursement only if a federal

2 court concludes both that the public placement violated IDEA and that the private school

3 placement was proper under the Act.’” (quoting Carter By & Through Carter, 510 U.S. at 15)).

4 Compensatory education is also an available remedy for the harm a student suffers while

5 denied a FAPE. R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125 (9th Cir.

6 2011) (citing Parents of Student W. v. Puyallup Sch. Dist. No. 3, 31 F.3d 1489, 1496-97 (9th Cir.

7 1994). “Compensatory education is an equitable remedy that seeks to make up for ‘educational

8 services the child should have received in the first place,’ and ‘aim[s] to place disabled children

9 in the same position they would have occupied but for the school district’s violations of IDEA.’”

10 Id. (citing Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); 20 U.S.C. §

11 1415(i)(2)(C)(iii)).

12 Here, the ALJ granted, as the sole remedy for all of the violations and denial of FAPE

13 addressed in her decision, residential placement at Madison Oaks (or a comparable program if

14 Madison Oaks was unavailable), commencing no later than fifteen days following the decision,

15 and continuing through the 2018-19 regular and extended school year and the 2019-20 regular

16 school year. The ALJ explained:

17 86. Student required a more restrictive placement than what was offered from May

2018 through the time this case was filed. While the appropriateness of the subsequent

18 offers is not reached in this decision, the evidence established that by October 2018, there

was no dispute that Student required a residential placement to receive educational

19 benefit. To remedy these denials, it is determined that Student is entitled to placement

that addresses his mental health, behavior, and educational needs in order to receive an

20 educational benefit. Student requires a program of residential treatment that provides

mental health services by licensed clinicians experienced in treating individuals with

21 emotional disturbance, specialized academic instruction by properly credentialed special

education teachers, and delivered in a facility prepared to handle his elopement issues.

22 Therefore, to compensate for Tuolumne County and Curtis Creek’s failure to provide

Student a FAPE including appropriate goals, executive functioning needs, occupational

23 therapy needs, mental health counseling service, a timely functional behavior assessment,

appropriate behavior supports, for failing to provide a more restrictive placement, and as

24 prospective relief based on Student’s current needs, Student requires residential

placement commencing no later than fifteen days following this decision, during the

25 2018-2019 regular and extended school year through the remainder of the 2019-2020

regular school year.

26

87. Student established that Madison Oaks is an appropriate program that is

27 certified by the California Department of Education. It is being ordered prospectively to

remedy the FAPE denials. Nothing in this decision alleviates Tuolumne County or

28 County Creek from meeting its prospective obligation to offer Student a FAPE.

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1 (AR 3898.).

2 The ALJ also ordered LEAs to reimburse Parents for Dr. Solomon’s psychoeducational

3 assessment in the amount of $11,025. (Id.) Finally, the ALJ ordered LEAs to provide one round

4 trip airline ticket for J.B. to go to and from Madison Oaks, two round trip airline tickets for

5 Parents to escort J.B. to and from Madison Oaks, and one night of hotel accommodations upon

6 enrollment and return home for a total of two hotel nights. (AR 3900.)

7 Both LEAs and J.B. appeal from the ALJ’s award of these remedies. The parties’

8 challenges regarding residential placement at Madison Oaks through the 2019-20 school year are

9 focused on the timing of when J.B. required residential placement and whether the ALJ should

10 have considered the appropriateness of placement at Devereux. Those challenges have been

11 discussed above. The additional challenges raised by the parties are to the appropriateness of the

12 ALJ’s compensatory remedy of requiring LEAs to reimburse Parents for the cost of Dr.

13 Solomon’s psychoeducational assessment and the denial by the ALJ of additional remedies

14 requested by J.B.

15 A. Reimbursement for Dr. Solomon’s psychoeducational assessment

16 LEAs argue that the ALJ erred in ordering them to reimburse Parents $11,025 for the cost

17 of the Dr. Solomon’s psychoeducational assessment of J.B.27

18 First, LEAs contend that reimbursement is not an appropriate remedy because the ALJ did

19 not identify how the assessment relates to FAPE or educational benefit for J.B. The Court

20 disagrees.

21 In her decision, the ALJ discussed at length Dr. Solomon’s assessment and testimony. (AR

22 3875-78.) The assessment provides a detailed psychological evaluation of J.B. and makes

23 recommendations regarding J.B.’s educational needs. The assessment also includes details

24 regarding J.B.’s school and medical history and his history of maladaptive behavior, the tests

25

27

J.B. argues that the ALJ erred in failing to require full reimbursement of the non-testimonial fees paid to

26 Dr. Solomon. However, the ALJ awarded J.B. reimbursement for the cost of the psychoeducational assessment

conducted by Dr. Solomon in the amount of $11,025. The invoice from Dr. Solomon demonstrates that the other

27 costs incurred by J.B. in relation to Dr. Solomon were for time Dr. Solomon spent preparing for testimony, traveling

for testimony, and giving testimony. (AR 3852.) As these additional costs are testimonial-related costs, it appears

28 that J.B. has already obtained the relief of full reimbursement for the non-testimonial fees paid to Dr. Solomon.

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1 conducted by Dr. Solomon, the records she reviewed and the interviews she conducted, and her

2 observations of J.B., both inside and outside the classroom. Although the ALJ did not agree with

3 the date put forward by Dr. Solomon regarding when J.B. needed residential placement and did

4 not agree with and adopt all of the remedies recommended by Dr. Solomon, it is clear that the

5 ALJ relied extensively on information provided by Dr. Solomon in finding that J.B. required

6 residential treatment by May 10, 2018, and in granting the remedy of residential placement at

7 Madison Oaks.28

8 Second, LEAs contend that Dr. Solomon’s assessment could not have provided benefit to

9 J.B. because it contained no recommendations and was not provided to the IEP team. Again, the

10 Court disagrees. Dr. Solomon’s assessment concludes that J.B. is not able to utilize the

11 educational opportunities provided to him, that he “is barely stable much of the time and is too

12 mentally unstable to use his cognitive capacity to its fullest”; that he “requires a residential

13 program that specializes in children with serious mood disorders and significant learning

14 disorders”; and that “[n]o less restrictive environment will allow him to become stable and to then

15 benefit from an education.” (AR 3785; see 5362-63 (expressing opinion that J.B. needs residential

16 placement and explaining why); AR 5373-76 (testimony that to achieve remediation for the denial

17 of FAPE, J.B. will need placement in a very high-level locked residential treatment program as

18 discussed in her assessment and, among other things, sufficient medical management in order to

19 stabilize him and allow him to access his education, as well as individual therapy and regular

20 family contact).) Further, Dr. Solomon attended the IEP team meeting held prior to the hearing

21

22 28

LEAs also argue that the ALJ found that Dr. Solomon’s testimony lacked credibility. (ECF No. 37 at 29-

23 31.) The Court disagrees. At no point did the ALJ indicate that she found Dr. Solomon lacked credibility. Rather, the

ALJ specified which portions of Dr. Solomon’s conclusions and recommendations that she found unpersuasive. For

example, the ALJ stated: “Dr. Solomon concluded Student required a residential treatment facility as of late 2015.

24

Dr. Solomon first met Student in February 2019. This recommendation was unreliable as to when she concluded a

residential placement was warranted. However, the totality of the evidence in this case established that Student

25 required a more restrictive placement by May 10, 2018.” (AR 3878.) Another specific recommendation that the ALJ

disagreed with regarded family counseling. The ALJ stated: “Despite only meeting Student’s family in February

26 2019 and his younger brother for only 20 minutes, [Dr. Solomon] also recommended the family receive two years of

family therapy and individual therapy for each of the family members. Her recommendation was unpersuasive given

27 the expansiveness of her recommendation versus the limited knowledge she had of the family’s needs.” (Id.) Thus,

the ALJ was careful to delineate which specific aspects of Dr. Solomon’s opinion and recommendations that the

28 ALJ found unpersuasive and why. The ALJ never indicated that she found Dr. Solomon to lack overall credibility.

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1 and was thus available to answer questions from or make recommendations to the IEP team.

2 Despite this availability, there is no indication that anyone on the IEP team sought to obtain any

3 information from Dr. Solomon or asked to review her assessment of J.B.

4 Finally, LEAs argue that reimbursement was not appropriate because J.B. did not put

5 psychoeducational assessment at issue during the hearing and did not request an independent

6 assessment. Again, the Court disagrees. The parents of a student denied a FAPE are entitled to

7 reimbursement for the costs of “proper” related services that they have independently obtained for

8 their child. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359,

9 369-71 (1985). Those related services include mental health services “required to assist a child

10 with a disability to benefit from special education.” 34 C.F.R. § 300.34(a).29 Without appropriate

11 evaluative information about a student, it is not possible for an IEP team to develop a plan

12 reasonably calculated to provide the student with a meaningful educational benefit. N.B. v.

13 Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors, Missoula Cty., Mont., 541 F.3d 1202,

14 1210 (9th Cir. 2008). Here, Dr. Solomon’s assessment provided evaluative information about J.B.

15 and recommendations for what was required to allow him to access his education. This

16 assessment was a proper related service, and the ALJ’s order requiring LEAs to reimburse J.B. for

17 the cost of the assessment was accordingly appropriate. See id.

18 B. Additional remedies sought by J.B. 30

19 J.B. argues that he is entitled to additional remedies beyond that ordered by the ALJ. He

20 argues that, in light of the FAPE denials during the two-year statutory period, he is, at minimum,

21

29

Section 300.34(a) provides:

22

Related services means transportation and such developmental, corrective, and other supportive

23 services as are required to assist a child with a disability to benefit from special education, and

includes speech-language pathology and audiology services, interpreting services, psychological

24 services, physical and occupational therapy, recreation, including therapeutic recreation, early

identification and assessment of disabilities in children, counseling services, including

25 rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or

evaluation purposes. Related services also include school health services and school nurse

26 services, social work services in schools, and parent counseling and training.

34 C.F.R. 300.34(a).

27 30

At a hearing held on June 11, 2020, LEAs indicated that they have already provided some of the additional

remedies sought by J.B. To the extent J.B. agrees that LEAs have already adequately provided a particular additional

28 remedy, LEAs need not provide that remedy again.

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1 entitled to the following additional compensatory remedies: (1) completion of an FBA and BIP

2 by a Ph.D.-level behaviorist with demonstrable experience working with children similarly

3 situated to J.B.; (2) annual IEP goals drafted by Education Specialist Priya Tjenderson or a

4 similarly qualified educational specialist; (3) educational therapy/specialized academic

5 instruction in the form of instructional IEP services in Math and Language Arts; (4) an AT

6 assessment; (5) an OT assessment, as well as corresponding goals and direct and/or consult

7 services; (6) full reimbursement of non-testimonial fees paid to Ms. Wilkinson, Ms. Tjenderson,

8 Ms. Swaffar, and Ms. Knopf; (7) individual and family counseling; (8) 100 hours of staff training

9 in managing students with comorbid behavioral and mental health issues; and (9) one-to-one aide

10 support.31

11 1. Completion of an FBA and BIP

12 Before the ALJ, LEAs contended that they

This text is long and has been trimmed here. Open the source document for the complete record.