D.D., a minor v. Garvey School District

O

1

2

3

4

5

6

7

8 United States District Court

9 Central District of California

10

11 D.D., a minor, by and through his guardian Case № 2:19-cv-10581-ODW (SKx)

ad litem, Nailian H.,

12

Plaintiff, ORDER RE ADMINISTRATIVE

13

v.

APPEAL [38][39]

14

GARVEY SCHOOL DISTRICT, a local

15

educational agency,

16

Defendant.

17

18 I. INTRODUCTION

19 Plaintiff D.D. (“Student”), by and through his Guardian Ad Litem, Nailian H.,

20 appeals from the decision of Administrative Law Judge Cole Dalton (“ALJ”), of the

21 California Office of Administrative Hearings (“OAH”), pursuant to the Individuals

22 with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Upon careful

23 consideration of the parties’ cross-motions for summary judgment, (ECF Nos. 38, 39),

24 and the Administrative Record (“AR”) of the underlying due process hearing, (ECF

25 No. 36), the Court AFFIRMS IN PART AND REVERSES IN PART the OAH

26 Decision.1

27

28 1 Having reviewed the papers filed in connection with the parties’ motions, the Court deemed the

matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

1 II. BACKGROUND

2 Defendant Garvey School District (“GSD”) initially assessed Student in

3 February 2015, when he was about three years old.2 (See AR 215.) GSD’s initial

4 psychoeducational (“Psyched”) assessment reflected Student’s development levels as

5 low in communication, adaptive behavior, cognition, and social-emotional skills; his

6 physical skills were an area of relative strength, with age-appropriate fine motor skills

7 in the two- to two-year-six-month range. (AR 215–21.) Student qualified under the

8 IDEA for special education and related services under the primary eligibility of

9 intellectual disability, with a secondary eligibility of autism. (AR 222.) At all times

10 relevant, Student resided within the boundaries of GSD. (AR 537.) For preschool,

11 Student attended a Special Day Class (“SDC”) for students with moderate/severe

12 disabilities at GSD’s Rice Elementary School. (AR 222, 235.)

13 A. Preschool 2016–17

14 Before Student’s fifth birthday, GSD held Student’s early triennial IEP meeting

15 on January 19, 2017. (AR 488.) Student’s assessments reflected his development in

16 the cognitively-delayed low range in most areas, but physical skills, particularly gross

17 motor, remained a relative strength. (AR 435–45, 490, 504, 763.) The IEP team

18 developed goals and a plan for services, but not as to occupational therapy (“OT”).

19 (See AR 491–97.) The IEP team also discussed that Student’s tantrum behavior

20 impeded his learning, but did not include behavior goals. (AR 491–97, 504.) Mother

21 consented to the IEP with additions not pertinent here. (AR 504–05, 507.) On May

22 17, 2017, Student’s IEP team convened to discuss his approaching transition to

23 kindergarten and agreed Student would attend a moderate/severe SDC at Sanchez

24 Elementary School in GSD. (AR 268–69.)

25

26

27

2 The statutory period for Student’s claims is February 28, 2017, to February 28, 2019. (See

28 AR 1–42.) Student’s January 2017 individualized education program (“IEP”) was in place when the

statutory period began. Prior history is provided as relevant to notice of Student’s development.

1 B. Kindergarten 2017–18

2 On January 12, 2018, before Student turned six, GSD convened Student’s

3 annual IEP meeting. (AR 470–87.) The IEP team reviewed Student’s strengths and

4 progress, discussed his continuing tantrum behavior, and proposed new goals in

5 communication, vocation, mathematics, and academics. (AR 482–83.) GSD offered

6 continued placement in the moderate/severe SDC at Sanchez, with adjustments to

7 goals and services in light of Student’s development. (AR 470–87.) Mother

8 requested and signed a plan for assessments in the areas of OT, assistive technology

9 (“AT”) with augmentative and alternative communication (“AAC”), and functional

10 behavior (“FBA”). (AR 486.) In a letter dated February 6, 2018, Mother consented to

11 the IEP’s implementation, objected in part, and requested additions including behavior

12 goals and a behavior intervention plan (“BIP”). (AR 468–69.)

13 On March 5, 2018, the IEP team convened to discuss the completed

14 assessments and proposed IEP amendments. (AR 287–300.) GSD’s speech language

15 pathologist (“SLP”) Jennifer Strom conducted the AT/AAC assessment. (AR 287,

16 414–26.) Strom found that Student possessed basic skills that showed he had the

17 potential to learn to use an AT device for functional communication. (AR 287.) She

18 proposed a thirty-day trial of an AT device, after which the IEP team would reconvene

19 to discuss the results. (AR 287.) GSD’s occupational therapist Marina Toranian

20 conducted the OT assessment. (AR 410–13, AR 853.) Toranian determined Student

21 had motor control and sensory processing deficits, with sensory seeking behaviors and

22 fine motor skills delayed in the two to three-year-old range. (AR 287, 410–13, 866.)

23 Toranian proposed goals and services in these areas. (AR 287–90, 292, 868.) GSD’s

24 board certified behavior analyst (“BCBA”) Mary Hum conducted an FBA with the

25 target behavior of Student’s tantrums. (AR 427–34.) Hum found Student’s behaviors

26 were often attempts at communication to gain access or attention. (AR 433–34.) She

27 found Student’s providers had been inadvertently reinforcing his tantrums by

28 comforting or soothing him. (AR 433, 1286–90.) She proposed a BIP incorporating

1 the anticipated AT device and developed functionally equivalent replacement

2 behaviors (“FERBs”) for Student to use instead of tantrumming. (AR 287, 296–98,

3 1252–57.) Mother consented to implementation of the IEP amendment. (AR 300.)

4 Strom trained staff on the AT device and they conducted the thirty-day trial in

5 May 2018. (AR 324–26, 1149–51.) Strom attempted unsuccessfully to schedule

6 training with Mother. (AR 1171.) Although GSD scheduled an IEP meeting to

7 review the AT trial and provide Mother with training, Mother cancelled and the school

8 year ended before they could be rescheduled. (AR 1153–54, 1157, 1174.)3

9 On July 9, 2018, Student’s attorney, on behalf of Mother, disagreed with GSD’s

10 assessments and requested independent educational evaluations (“IEEs”) in psyched,

11 speech/language, functional behavior, AT, and OT. (AR 303.) GSD did not respond.

12 (Decision 22; GSD Statement of Disputed Facts 79, ECF No. 40-1.)

13 C. First Grade 2018–19

14 Student continued in Sanchez’s SDC for first grade. (See AR 328–64.) The

15 IEP team convened on October 24, 2018, to review the results of the AT/AAC device

16 trial. (AR 324.) SLP Rebekah Taylor provided AT support throughout the 2018–19

17 school year and reported that Student’s progress using the device was slow.

18 (AR 317–19, 324.) Mother consented to the IEP amendment. (AR 325.)

19 In September 2018, Dr. B.J. Freeman, an expert in the field of autism spectrum

20 disorders, assessed Student and prepared a psychological assessment report. (See

21 AR 305–16.) The IEP team convened in December to review Freeman’s assessment.

22 (AR 326.) Freeman observed Student for less than two hours on one day during the

23 first week of school; she opined Student was prompt dependent, had regressed, and

24 was not meeting his goals; she proposed a year-round intensive forty-hour per week

25

26

3 The ALJ found the delay in providing the AT device to Student, from March 13, 2018, when

27

Mother consented, to May 5, 2018, did not negatively impact Student’s access to his education.

28 (AR 556 (“OAH Decision” or “Decision” at 22), ECF No. 36-26.) All subsequent citations to the

OAH Decision are to the pagination at the center bottom of each page.

1 applied behavior analysis (“ABA”) program instead of Student’s SDC. (See

2 AR 313–16, 326; Decision 23.)

3 On January 11, 2019, when Student was almost seven, GSD held Student’s

4 annual IEP meeting. (AR 328–64.) The IEP team discussed Student’s strengths and

5 weaknesses, behaviors, and progress; Mother’s concerns; adjustments to services and

6 goals; and Student’s use of the AT device. (AR 358–60.) Student’s targeted tantrums

7 had decreased, his attention increased, and the team continued the BIP as it had been

8 effective. (See AR 359, 1266–69.) GSD offered continued placement in the

9 moderate/severe SDC at Sanchez. (AR 349–50, 353, 359.)

10 On February 11, 2019, Mother agreed to implement the January 11, 2019 IEP

11 but she denied that it provided a free and appropriate public education (“FAPE”) and

12 requested changes to the IEP. (AR 362.) On February 28, 2019, GSD declined most

13 of Mother’s requested changes. (AR 365–68.)

14 D. Due Process Hearing and Appeal

15 On February 28, 2019, Student filed a request for an administrative due process

16 hearing with the OAH. (AR 1–42.) After five days of testimony from twelve

17 witnesses, including two experts testifying on behalf of Student, the ALJ issued a

18 seventy-page opinion.4 (Decision 1–70.) She found Student prevailed in part on

19 OAH Issue Two and in full on OAH Issue Three, and GSD prevailed on all remaining

20 issues. (Id. at 69–70.)

21 Student appealed to this Court, seeking reversal as to portions of the OAH

22 Decision on OAH Issues Two, Three, and Four. (See Compl. ¶ 13, ECF No. 16.) The

23 parties filed cross-motions for summary judgment, which are fully briefed. (See

24

4 The hearing proceeded on five issues: (1) whether GSD failed to timely conduct its March 5, 2018

25 AT/AAC assessment; (2) whether GSD failed to timely and appropriately conduct its February 28,

2018 FBA and March 5, 2018 OT assessment (“OAH Issue Two”); (3) whether GSD failed to timely

26 respond to Student’s July 9, 2018 request for IEEs in the areas of speech/language, functional

behavior, OT, and AT (“OAH Issue Three”); (4) whether GSD failed to offer appropriate goals,

27

related services, supports, and placement in the areas of communication, OT, behavior, social skills,

28 adaptive and daily living skills, and health (“OAH Issue Four”); and (5) whether GSD materially

implemented AT technology according to the March 5, 2018 IEP. (Decision 2–3.)

1 Student Mot. Summ. J. (“SMSJ”), ECF No. 39; GSD Opp’n SMSJ, ECF No. 43;

2 Student Reply, ECF No. 45; GSD Mot. Summ. J. (“DMSJ”), ECF No. 38; Student

3 Opp’n DMSJ, ECF No. 41; GSD Reply, ECF No. 44.)5

4 III. LEGAL STANDARD

5 The IDEA provides that “[a]ny party aggrieved by the findings and decision”

6 reached through the state administrative hearing process “shall have the right to bring

7 a civil action with respect to the complaint . . . in a district court of the United States.”

8 20 U.S.C. § 1415(i)(2). In reviewing an administrative decision under the IDEA,

9 district courts review the administrative proceeding records, hear additional evidence

10 if the parties request it, and “grant such relief as the court determines is appropriate,”

11 based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C). This

12 modified de novo standard requires the Court to give the administrative proceedings

13 “due weight” and not “substitute [its] own notions of sound educational policy for

14 those of the school authorities which [it] review[s].” Capistrano Unified Sch. Dist. v.

15 Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995). After such consideration, the court “is

16 free to accept or reject the findings in part or in whole.” Id. at 891; M.C. v. Antelope

17 Valley Union High Sch. Dist., 858 F.3d 1189, 1194 n.1 (9th Cir. 2017) (noting that

18 courts must “actually examine the record to determine whether it supports the ALJ’s

19 opinion”).

20 Though not a true motion for summary judgment, the appeal of an IDEA

21 administrative decision is properly styled and presented by the parties in a summary

22 judgment format. Wartenberg, 59 F.3d at 892. When a court has before it all

23 evidence regarding disputed issues, it may make a final judgment based on the

24 preponderance of evidence on what is essentially a stipulated record. Ojai Unified

25 Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). The petitioning party bears

26 the burden of proof at the administrative hearing, Schaffer v. Weast, 546 U.S. 49, 62

27

28 5 To the extent a party’s argument at different stages of briefing is substantially identical, the Court

cites to only one instance of a given argument. (See, e.g., SMSJ 16–18; Student Opp’n DMSJ 2–5.)

1 (2005), and the party challenging the administrative decision bears the burden in the

2 district court, L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir.

3 2009).

4 IV. DISCUSSION

5 Student argues the Court should review the OAH Decision de novo, while GSD

6 contends it is entitled to substantial deference. (See SMSJ 14–16; DMSJ 3.)

7 On the issues, Student seeks reversal of three specific points. First, Student

8 appeals a subpart of OAH Issue Two, on the grounds that the ALJ erred by finding

9 that GSD conducted a timely OT assessment. (Compl. ¶¶ 13, 14–20.) Next, Student

10 appeals three subparts of OAH Issue Four, regarding the appropriateness of GSD’s

11 offered goals, services, supports, and placement, as to: (i) OT for the entire statutory

12 period, (id. ¶¶ 13, 27–35); (ii) behavior for the portion of the statutory time period

13 from March 6, 2018, to February 28, 2019, (id. ¶¶ 13, 36–42); and (iii) the remedy as

14 to behavior for the portion of the statutory time period from February 28, 2017, to

15 March 5, 2018, (id.). Finally, although the ALJ found Student prevailed on OAH

16 Issue Three, as GSD failed to respond to Student’s request for IEEs, Student appeals

17 the ALJ’s remedy on this issue on the grounds that it does not redress GSD’s

18 violation. (Id. ¶¶ 13, 21–26.) GSD seeks affirmance. (See DMSJ 3.)

19 A. “Due Weight”

20 A court must give “due weight” to administrative judgments regarding

21 educational policy. Ojai, 4 F.3d at 1472. How much weight is due is a matter of the

22 court’s discretion, though the Ninth Circuit instructs that more weight should be given

23 if the findings are “thorough and careful” or pertain to witnesses’ credibility.

24 Wartenberg, 59 F.3d at 891; Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 889

25 (9th Cir. 2001). Specifically, an ALJ’s decision is entitled to “substantial weight”

26 when it “evinces his [or her] careful, impartial consideration of all the evidence and

27 demonstrates his [or her] sensitivity to the complexity of the issues presented.” Ojai,

28 4 F.3d at 1476.

1 The ALJ held the administrative hearing over five days, (Decision 1), received

2 testimony from twelve witnesses, including two experts for Student, (see AR 907,

3 1182, 1393, 1565, 1678 (daily witness indices)), considered hundreds of pages of

4 argument and evidence, (see AR 146–533), and actively engaged in questioning, (see

5 generally AR 678–1677 (transcripts); GSD Opp’n SMSJ 2 n.1). She issued a

6 seventy-page single-spaced decision in which she thoroughly examined the evidence

7 and arguments, rendered reasoned credibility determinations,6 reviewed the relevant

8 legal standards, and found in part for each party on carefully articulated issues. The

9 Court has conducted an independent review of the AR and finds that, with one

10 exception discussed below, the ALJ’s decision is thorough and careful and therefore

11 entitled to substantial deference. See R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d

12 932, 937 (9th Cir. 2007) (“[A] hearing officer’s findings [are] thorough and careful

13 when the officer participates in the questioning of witnesses and writes a decision

14 containing a complete factual background as well as a discrete analysis supporting the

15 ultimate conclusions.” (internal quotation marks and brackets omitted)).

16 B. Timeliness of OT Assessment (OAH Issue Two)

17 Student contends the ALJ erred in finding that Student failed to prove GSD’s

18 March 5, 2018 OT assessment was untimely. (SMSJ 16–18.)

19 1. Deference Due

20 As a threshold matter, Student argues the Court’s review of this issue should be

21 de novo because the ALJ relied on evidence outside the record, erroneously found

22 Student abandoned the issue, and ignored Student’s evidence. (SMSJ 1, 15–16.)

23 Nothing indicates the ALJ relied on evidence outside of the record. The facts relevant

24 to Student’s objection are found in Student’s exhibits, the 2015 IEP (Student Ex. 7,

25 AR 222) and Psyched Report (Student Ex. 4, AR 215). As such, this argument does

26 not diminish the Court’s deference. However, the ALJ erred in finding Student

27

6 The ALJ gave the testimony of Student’s experts, Dr. B.J. Freeman and Elizabeth Schwandt, less

28 weight than Student’s providers because she found they had limited knowledge of Student or lacked

credibility as to Student’s particular profile. (Decision 23–24, 36.)

1 “abandoned his argument [on this issue], by not addressing it in his closing brief.”

2 (Decision 45.) Student argued the OT assessment’s untimeliness in his closing brief,

3 albeit briefly on page twenty-seven. (See AR 205.) As the ALJ’s holding on the OT

4 assessment’s timeliness appears to rest solely on Student’s abandonment (see

5 Decision 45), the Court reviews this issue de novo. The Court nonetheless maintains

6 deference to the thorough and careful findings of fact and credibility determinations.

7 2. Analysis

8 The IDEA requires a school district to assess a student in all areas related to a

9 suspected disability. See 20 U.S.C. § 1414(b)(3); 34 C.F.R. § 300.304(c)(4). Once a

10 school district is on notice that a child has displayed symptoms of a disability, the

11 district must assess to determine a child’s educational needs. See Timothy O. v. Paso

12 Robles Unified Sch. Dist., 822 F.3d 1105, 1118–20 (9th Cir. 2016). Failure to conduct

13 a timely or appropriate assessment is a procedural violation and may amount to the

14 denial of a FAPE if it “result[s] in the loss of educational opportunity, or seriously

15 infringe[s] the parents’ opportunity to participate in the IEP formulation process,

16 or . . . cause[s] a deprivation of educational benefits.” J.G. v. Baldwin Park Unified

17 Sch. Dist., 78 F. Supp. 3d 1268, 1284 (C.D. Cal. 2015).

18 Student contends GSD should have seen as early as January 2017 that Student

19 needed an OT assessment because the January 2017 IEP Meeting and 2017 Psyched

20 Report revealed Student’s sensory-seeking and fine motor deficits. (SMSJ 17–18.)

21 However, the Court finds a preponderance of the evidence supports that GSD’s

22 March 2018 OT Assessment was timely.7

23

7 The parties’ citations to the record, and particularly the transcripts, are inconsistent, often

24

inaccurate, and have made it extremely difficult to identify the evidence cited. For instance, rather

25 than cite to a unique identifier like the AR Bates stamp or CMECF pagination, Student cites the

transcripts as “Doc. 36-27, 84:19–86:4.” (Student Reply 7.) However, page 84 appears five times in

26 document 36-27, none of which contains obviously relevant testimony. GSD provides bracketed

descriptions in its citations, but while some are descriptive (and unfortunately lengthy), others are so

27

generic as to be meaningless. (See, e.g., GSD Statement of Uncontroverted Facts No. 3 (“Doc. 36-7,

28 p.1 [‘Previous Assessment,’ District January 2015 psychoeducational assessment]”); id. No. 76

(“Doc. 13 pp. 12–22 [IEP]”), ECF No. 38-1.) And while the parties, at times, do cite to the AR

1 In 2015, before Student turned three years old, initial GSD assessments

2 reflected his physical skills were a relative strength.8 (AR 215–237.) His fine motor

3 skills rated at the age-equivalent of two years and six months, although this was

4 inconclusive because Student was not cooperative during the assessment.

5 (AR 218–19.) He could turn board-pages, scribble on paper, and had adequate grip

6 strength, but could not yet stack blocks and had not had an opportunity to write, color,

7 or cut. (AR 220.) OT services and supports were not recommended because Student

8 demonstrated the strength and skills necessary to access an academic environment.

9 (AR 235.)

10 In January 2017, just before Student turned five, the evidence shows Student

11 was demonstrating slow progress in motor development. (See AR 435–45, 490,

12 504–05.) The 2017 Psyched Report reflects that Student could hold writing utensils in

13 an age-appropriate palmer grasp, make marks, spontaneously draw lines and circles,

14 stack blocks, string beads, and was beginning to hold scissors. (AR 443, 490.) He

15 was not yet imitating lines and sometimes used both hands, but he was starting to

16 exhibit hand dominance. (AR 443.) On some measures, however, his fine motor

17 skills fell in the range between two and three years old. (AR 442 (2–3 year-old fine

18 motor), 443 (2–2.5 year-old developing skills).) The IEP team proposed a prewriting

19 goal to imitate lines and circles. (AR 490, 495.) By the January 2018 IEP meeting,

20 when Mother requested OT assessment, Student had met this goal. (AR 482–83.)

21 While some evidence reflects areas of weakness, other evidence reveals

22 age-appropriate motor skills and emerging academics. On balance, the record

23 supports that Student was making progress and developing motor skills as of the

24 January 2017 IEP. When Student’s progress stalled the following year, GSD

25

26 pagination, the Bates stamp is located directly beneath the CMECF header, obliterating both unique

identifiers. As a result of these indecipherable and unreliable citation practices, the Court has

27

independently reviewed the AR to identify evidence pertaining to the parties’ arguments.

28 8 Although the 2015 Psyched Report and IEP fall outside the statutory time period, they are relevant

regarding notice of Student’s suspected areas of disability. See Timothy O., 822 F.3d at 1119–20.

1 assessed OT, identified fine motor and sensory deficits, and recommended related

2 services and supports. Student contends GSD should have known by the January

3 2017 IEP that Student needed to be assessed in the area of OT because of his sensory

4 seeking behaviors. (See SMSJ 17.) But the Court does not find evidence of sensory

5 seeking behaviors in the January 2017 record such as would necessarily put GSD on

6 notice at that time of a need for an OT assessment, and Student has not clearly

7 identified any sufficient to unbalance the preponderance of evidence discussed above.

8 The Court finds a preponderance of the evidence supports that GSD did not fail

9 to timely assess Student in the area of OT. Accordingly, the OAH Decision is

10 AFFIRMED as to this issue.

11 C. Appropriate Goals, Services, Supports, and Placement (OAH Issue Four)

12 The ALJ found Student did not meet his burden to prove GSD failed to offer

13 appropriate goals, services, supports and placement in most areas, but did establish

14 that GSD failed in the area of behavior from February 28, 2017, to March 5, 2018.

15 (Decision 50–65.) On appeal, Student argues the ALJ’s decision should be reversed

16 on this issue as to OT for the statutory period and as to behavior from March 6, 2018,

17 to February 28, 2019. (See SMSJ 20–26.) Student also seeks reversal of the remedy

18 for GSD’s failure in the area of behavior from February 28, 2017, to March 5, 2018.

19 (SMSJ 25–26.) Finally, Student argues the ALJ erred in finding GSD prevailed as to

20 the entirety of Issue Four. (SMSJ 23.)

21 The IDEA guarantees all disabled children a FAPE “consist[ing] of educational

22 instruction specially designed to meet the unique needs of the handicapped child,

23 supported by such services as are necessary to permit the child ‘to benefit’ from the

24 instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.

25 176, 188–89 (1982); see 20 U.S.C. § 1401(9).9 Related services shall be provided

26

9 In reviewing compliance with the IDEA, courts “review for procedural compliance with the statute,

27

and for whether the program is reasonably calculated to enable the child to receive educational

28 benefits.” Wartenberg, 59 F.3d at 891 (citing Rowley, 458 U.S. at 206–07). As Student’s arguments

as to OAH Issue Four focus on educational benefit, so too does the Court’s analysis.

1 when they are necessary for the pupil to benefit from his or her educational program.

2 Cal. Educ. Code. § 56363(a).

3 Under the IDEA, states must provide disabled students an educational program

4 that confers a “basic floor of opportunity,” but Congress “did not impose . . . any

5 greater substantive educational standard than would be necessary to make such access

6 meaningful.” Rowley, 458 U.S. at 192, 201 (emphasis added). While this requires

7 something more than “de minimis” progress, an educational program must only be

8 “reasonably calculated to enable a child to make progress appropriate in light of the

9 child’s circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist., 137 S. Ct. 988, 1001

10 (2017) (emphasis added); see E.F. v. Newport Mesa Unified Sch. Dist., 726 F. App’x

11 535, 537 (9th Cir. 2018) (confirming the Ninth Circuit standard requiring “some

12 educational benefit” is consistent “with Endrew’s clarification of Rowley”).

13 1. OT—February 29, 2017 to February 28, 2019

14 The ALJ did not err in finding the weight of evidence demonstrated GSD

15 “addressed [Student’s] fine motor and sensory needs appropriately, that he obtained

16 educational benefit[,] and was offered a FAPE at all relevant times.” (Decision 56.)

17 The ALJ correctly concluded “Student did not meet his burden of proving that he

18 required more or different [OT] services during the statutory time frame” as “the

19 evidence demonstrated Student made progress appropriate in light of his

20 circumstances.” (Id. at 54–55.)

21 As discussed above, the Court finds a preponderance of the evidence

22 demonstrates that Student made progress commensurate with his abilities from

23 February 2017 through March 2018 in the areas of fine motor and sensory input. See

24 supra IV.B.2. Additionally, a review of the transcripts confirms the ALJ’s finding that

25 the only occupational therapist to testify, Toranian, did not testify that Student

26 required OT services prior to the March 2018 assessment. (Decision 55; see generally

27 AR 848–904, 1538–62.) Similarly, the AR supports that, by March 2018, Student

28 could hold a pencil, liked to write, made lines and circles independently, required

1 assistance for tracing, and met his academic pre-writing goal for imitating lines. (See

2 Decision 55; AR 410–13, 472, 482.)

3 After the March 5, 2018 OT assessment, GSD offered appropriate OT goals and

4 services. (AR 287, 289–90, 292.) Toranian developed goals to address Student’s fine

5 motor skills and sensory seeking behaviors. (AR 287, 289–90, 868, 1542–43.) One

6 goal utilized a sensory diet to address Student’s sensory seeking behaviors and

7 increase his attention to task. (AR 289, 866, 869, 887–88.) Another goal focused on

8 improving grasp and tracing to address Student’s fine motor skills. (AR 290, 868–69,

9 1542.) Toranian testified that Student made progress on both goals, albeit slow.

10 (AR 330, 332–33, 1543, 1553–57.) Student became overwhelmed easily and required

11 frequent sensory breaks, and access to a sensory corner calmed Student and led to

12 increased attentiveness. (AR 330, 866–69, 888.) The IEP team also implemented a

13 pressure vest, which similarly helped to increase Student’s attention and tolerance.

14 (AR 330, 1555–56.) And Student made progress in the safe use of scissors, as he

15 developed improved grasp. (AR 330, 863, 893, 1557.)

16 The ALJ found Toranian, who testified to Student’s progress, a credible witness;

17 this credibility determination is given substantial deference. See Amanda J., 267 F.3d

18 at 889. Student offered no witness that effectively rebutted Toranian’s testimony.

19 (See Decision 23–24, 36 (giving less weight to Student’s expert witnesses, in part

20 because they were less familiar with Student than his providers).)

21 Student contends the ALJ improperly relied on evidence outside the statutory

22 time period by considering evidence of Student’s levels in 2015. (SMSJ 22.) But the

23 ALJ also compared Student’s development levels at the January 2017 IEP to his levels

24 and skills demonstrated at the January 2018 IEP, and this evidence is sufficient to

25 support the ALJ’s conclusions. (See Decision 55.) Student also argues that his failure

26 to meet the 2018 OT goals by January 2019 is proof that he made zero progress during

27 this time. (SMSJ 23.) Not so. As discussed above, the evidence demonstrates that

28 Student progressed on the OT goals and related skills, even though he did not achieve

1 100% success by January 2019. (AR 330, 332–33.) The ALJ correctly rejected this

2 argument. (Decision 56.)

3 In reviewing the ALJ’s decision, the district court is not required to be certain

4 that it was correct; a preponderance of the evidence is all that is required. Wartenberg,

5 59 F.3d at 893. Here, a preponderance of the evidence supports the ALJ’s conclusion

6 that GSD appropriately addressed Student’s OT needs. (Decision 56.) Accordingly,

7 the OAH Decision is AFFIRMED as to this issue.

8 2. Behavior—March 6, 2018 to February 28, 2019

9 Turning to the area of behavior and the time period of March 6, 2018, to

10 February 28, 2019, the ALJ did not err in finding “[t]he weight of the evidence

11 demonstrated that Student made slow progress, commensurate with his abilities, in the

12 area of behavior, once the target of his behaviors was identified and appropriately

13 addressed in March 2018.” (Decision 58.)

14 Hum conducted an FBA in the spring of 2018, resulting in a BIP implemented

15 following the March 5, 2018 IEP. (AR 287, 427–34.) She identified Student’s target

16 behaviors as tantrums, resulting because he wanted attention or access, and she

17 proposed appropriate FERBs specific to Student. (AR 287, 296–98, 433–34, 1206,

18 1251–52.) After the IEP team discussed implementing functional communication

19 using the AT device, Hum modified the BIP to incorporate functional behavior using

20 the AT device as well. (AR 287, 297.) To gain access or attention, Student could

21 select an icon on the device and show it to an adult, point to a preferred item, take an

22 adult to the item or activity, and sign “more” to request more of something. (AR 297,

23 330, 398,10 1284.) Student’s teachers implemented this “total communication” system

24 throughout the end of the 2017–18 school year and during the 2018–19 school year, in

25

26

10 Although the March 2019 FBA Report is dated after the statutory time period, Hum gathered data

27

and conducted observations for the Report within the time period. (AR 405–06.) Additionally,

28 Student argued successfully for the Report’s inclusion in the record during the OAH Hearing, as

being relevant to Student’s behavior. (See AR 1210–15.)

1 addition to teaching Student to use the AT device, thus enabling Student to access his

2 education. (AR 1283–88.)

3 A preponderance of the evidence supports the ALJ’s finding that implementing

4 the BIP resulted in Student’s progress in the area of behavior. The ALJ correctly noted

5 the significance of Student’s providers no longer reinforcing his maladaptive

6 behaviors. (Decision 57; AR 1283–88.) Student participated more, could sit and

7 attend longer, was more easily redirected, responded to two-to-three word instructions,

8 engaged in the classroom’s token economy, and began demonstrating functional use of

9 the AT/AAC device, which in turn decreased tantrum behaviors. (AR 330, 398, 408,

10 1224, 1266–68.) At the January 2019 IEP meeting, the team agreed to continue the

11 BIP because it was found to be effective for Student. (AR 359.) This weight of

12 evidence supports the ALJ’s conclusion.

13 Student challenges the Decision, arguing the ALJ omitted facts. The ALJ

14 prepared a thorough and careful seventy-page opinion detailing relevant factual

15 findings and providing discrete analysis as to the issues. The AR is nearly 1700 pages

16 and includes testimony from twelve witnesses, many of whom the ALJ questioned

17 herself. “In cases, like this one, where there is an extensive record and testimony, the

18 ALJ is not required to mention every detail when discussing the record . . . .” J.B. v.

19 Tuolumne Cnty. Superintendent of Schs., No. 1:19-cv-00858-NONE-EPG, 2020 WL

20 3287365, at *26 (E.D. Cal. June 18, 2020), R&R adopted in part, rejected in part on

21 other grounds, 2021 WL 1221468 (E.D. Cal. Mar. 31, 2021). Student also contends

22 that the March 2018 BIP was inappropriate because it required use of the AT device

23 but Student lacked foundational skills necessary to access it. (SMSJ 25.) Even were

24 this so, GSD employed “total communication” with Student, allowing him to access

25 his educational program as he developed the skills for using the AT device. (See

26 AR 1266–68, 1283–88.) The ALJ reasonably gave Student’s experts’ testimony on

27 this point less weight due to their lack of familiarity with Student, (Decision 23, 36),

28 and these credibility determinations are entitled to deference, Amanda J., 267 F.3d

1 at 889. Student’s remaining arguments are equally unpersuasive.

2 As noted, the Court need not be certain that the ALJ’s decision is correct, see

3 Wartenberg, 59 F.3d at 893, and here a preponderance of the evidence supports the

4 ALJ’s conclusions. Accordingly, the OAH Decision is AFFIRMED as to this issue.

5 3. Behavior, Remedy—February 29, 2017 to March 5, 2018

6 Student argues the ALJ erred in awarding three hours of staff training11 instead

7 of individual compensatory education as a remedy for GSD’s failure on OAH Issue

8 Four in the area of behavior from February 28, 2017, to March 5, 2018.

9 (SMSJ 25–26.) Student seeks Dr. Freeman’s recommended program of an intensive

10 ABA placement for up to two full time years, forty hours per week, in place of

11 Student’s SDC placement. (Decision 23–24; SMSJ 26; AR 313–16.) Alternatively,

12 Student briefly suggests compensatory ABA services, ten hours per week for

13 forty-two weeks, the number of weeks Student contends GSD failed to address his

14 behavior needs. (Student Opp’n DMSJ 10.)

15 ALJs have broad latitude to fashion equitable remedies appropriate for the

16 denial of a FAPE, in light of the purpose of the IDEA and the circumstances. Sch.

17 Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, 370 (1985); Student W. v.

18 Puyallup Sch. Dist., 31 F.3d 1489, 1496 (9th Cir. 1994). “Compensatory education

19 services can be awarded as appropriate equitable relief.” Park v. Anaheim Union High

20 Sch. Dist., 464 F.3d 1025, 1033 (9th Cir. 2006). “Appropriate relief is relief designed

21 to ensure that the student is appropriately educated within the meaning of the IDEA.”

22 Puyallup, 31 F.3d at 1497; R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125

23 (9th Cir. 2011) (“Compensatory education . . . seeks to make up for [lost] educational

24 services” and put the child in the position they would have had without the violation.).

25 “The courts have discretion on how to craft the relief and ‘[t]here is no obligation to

26 provide a day-for-day compensation for time missed.’” Park, 464 F.3d at 1033.

27

28 11 The behavioral training implemented for all preschool and elementary school staff totaled

ninety-three person hours. (GSD Opp’n SMSJ 22 n.29.)

1 The ALJ found “Student persuasively demonstrated that [GSD] failed to

2 appropriately address his behavior needs from February 28, 2017[,] until March 5,

3 2018.” (Decision 57.) As a remedy for this failure, the ALJ found staff training to be

4 an appropriate remedy. (Id. at 68.) She reasoned GSD’s failure during this time

5 period resulted most significantly from Student’s teachers and staff “not

6 understand[ing] the cause of Student’s behaviors” and “inadvertently reinforc[ing]”

7 them by comforting him. (Id. at 57.) Despite being on notice of his tantrum behaviors

8 and the impediment they posed to Student’s learning, Student’s GSD IEP team

9 members did not recommend an FBA or propose behavior goals or supports. (Id.

10 at 68.) However, once an FBA was completed and a BIP in place, GSD staff received

11 behavior training specific to Student and began properly responding to his negative

12 behaviors. Student began to make progress regarding his behavior. As Student was

13 then receiving an appropriate educational program in the area of behavior, the ALJ

14 exercised her discretion to address the root of the violation by ordering staff training,

15 an appropriate compensatory remedy. See Park, 464 F.3d at 1033 (finding no abuse of

16 discretion to award teacher training designed to compensate student by better training

17 his teachers to meet his particular needs). As there is no obligation to provide

18 compensatory education services directly to a student, id. at 1034, the Court does not

19 find an abuse of discretion.12 Accordingly, the OAH Decision is AFFIRMED as to

20 this issue.

21 4. Prevailing Party

22 Finally, Student contends the ALJ erred in finding GSD to be the sole prevailing

23 party as to OAH Issue Four. (SMSJ 23; Decision 70.) The OAH Decision is clear

24 that GSD did not prevail as to the entirety of Issue Four. Rather, “Student met his

25

12 Furthermore, even had the Court found an abuse of discretion, or determined that individual

26 compensatory education was warranted, Student fails to support the appropriateness of his requested

remedies. He does not explain why ten hours per week is appropriate, and the Court agrees with

27

GSD that the full-time forty-hour per week intensive ABA program proposed by Freeman is not

28 Student’s least restrictive environment, in light of the record. See Sacramento City Unified Sch.

Dist. v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994) (citing 20 U.S.C. § 1412(5)(B)).

1 burden of proof on this issue as to the time period of February 28, 2017[,] through

2 March 5, 2018 [and] did not meet his burden of proof on this issue as to the remaining

3 statutory period.” (Id. at 58.) Therefore, Student prevailed in part on OAH Issue

4 Four, as to the area of behavior from February 28, 2017, through March 5, 2018. To

5 the extent the ALJ found otherwise, the OAH decision is REVERSED. GSD remains

6 the prevailing party as to the remainder of OAH Issue Four.

7 D. IEE, Remedy (OAH Issue Three)

8 Student asserts the ALJ erred with respect to the remedy on OAH Issue Three

9 because, although the ALJ found GSD violated the IDEA by failing to respond to

10 Student’s request for IEEs in speech/language, functional behavior, OT, and AT/AAC,

11 the ALJ ordered only a speech/language assessment. (See SMSJ 18–19; Compl. ¶ 21.)

12 GSD argues the ALJ appropriately considered all relevant factors in fashioning the

13 remedy awarded and Student failed to prove that he is entitled to the requested IEEs.

14 (See GSD Opp’n SMSJ 18–20; GSD Reply 7.)

15 If a parent disagrees “with the school district’s evaluation of their child, they

16 have a right to obtain an [IEE] at public expense.” Timothy O., 822 F.3d at 1111

17 (internal quotation marks omitted). If a parent requests an IEE, the public agency

18 must, “without unnecessary delay,” file a due process complaint to show the

19 appropriateness of its assessment or fund the requested IEE. Baquerizo v. Garden

20 Grove Unified Sch. Dist., 826 F.3d 1179, 1185 (9th Cir. 2016). A district that fails to

21 file or fund may waive the right to contest a student’s request for an IEE; it also

22 violates the IDEA’s procedural safeguards. See J.P. v. Ripon Unified Sch. Dist.,

23 No. 2:07-CV-02084-MCE-DAD, 2009 WL 1034993, at *7 (E.D. Cal. Apr. 15, 2009).

24 “While some procedural violations can be harmless, procedural violations that

25 substantially interfere with the parents’ opportunity to participate in the IEP

26 formulation process . . . ‘clearly result in the denial of a [FAPE].’” Timothy O.,

27 822 F.3d at 1118 (quoting Amanda J., 267 F.3d at 892). Thus, courts have found the

28 failure “to respond without unnecessary delay to a parent’s request for an IEE . . .

1 independently actionable and compensable under the IDEA.” William S. Hart Union

2 High Sch. Dist. v. Romero, No. CV 13-3382-MWF (PLAx), 2014 WL 12493766, at *6

3 (C.D. Cal. Apr. 9, 2014) (first citing Rowley, 458 U.S. at 206–07; and then citing

4 Amanda J., 267 F.3d at 890); see also Pajaro Valley Unified Sch. Dist. v. J.S.,

5 No. C 06-0380 PVT, 2006 WL 3734289, at *3 (N.D. Cal. Dec. 15, 2006) (finding

6 district’s “unexplained and unnecessary delay . . . waived its right to contest Student’s

7 request for an [IEE] and by itself warrants entry of judgment in favor of Student . . . .”

8 (emphasis added)).

9 Here, Student disagreed with GSD’s assessments and requested IEEs in the

10 areas of speech/language, functional behavior, OT, and AT/AAC. GSD failed to file

11 or fund, or otherwise respond. The ALJ appropriately found GSD’s unexplained

12 failure to file or fund constituted a procedural violation that “effectively prevented

13 Parents from any meaningful . . . participation in the IEP development process.”

14 (Decision 49.)

15 Nevertheless, the ALJ erred when she awarded only a speech/language IEE.

16 The ALJ concluded that Student failed to prove the other assessments were

17 inappropriate or to “demonstrate a deprivation of educational benefit” resulting from

18 GSD’s failure to respond. (Id. at 48–49, 67.) However, whether the assessments were

19 appropriate or Student’s educational benefit undiminished does not change that GSD’s

20 silence denied Student a FAPE by significantly impeding Parents’ participation in the

21 IEP process. See Schaffer, 546 U.S. at 60–61 (discussing that IEEs are designed to

22 enable parents to participate and ensure they have a realistic opportunity to access

23 expertise equivalent to the district). “Procedural violations that interfere with parental

24 participation in the IEP formulation process undermine the very essence of the IDEA.”

25 Amanda J., 267 F.3d at 892. Thus, the ALJ erred in finding the “purposes of the IDEA

26 would not be served by ordering” the requested assessments. (Decision 67.)

27 The Court agrees with Student that GSD’s unexplained delay in failing to

28 respond to Mother’s IEE request waived its right to contest the request and, by itself,

1 | warrants an award of the requested IEEs. Accordingly, the OAH Decision is

2 | REVERSED as to the remedy on OAH Issue Three. GSD is ORDERED to fund, in

3 || addition to the speech/language IEE ordered by the ALJ, IEEs in the areas of

4] functional behavior, OT, and AT/AAC.

5 Vv. CONCLUSION

6 For the reasons discussed above, the Court AFFIRMS IN PART and

REVERSES IN PART the OAH Decision. (ECF Nos. 38, 39.) Specifically, the

8 || Decision is:

9 e AFFIRMED as to OAH Issue Two (timely OT assessment);

10 e AFFIRMED in part and REVERSED in part as to OAH Issue Four

11 (appropriate goals, services, supports, and placement):

12 o AFFIRMED as to OT for the statutory period;

13 o AFFIRMED as to Behavior from March 6, 2018, to February 28,

14 2019;

15 o AFFIRMED as to the remedy in the area of Behavior from

16 February 28, 2017, to March 5, 2018; and

17 o REVERSED in part as to the finding that GSD was the sole

18 prevailing party—Student also prevailed in part on Issue Four as to

19 Behavior from February 28, 2017, to March 5, 2018; and

20 e REVERSED in part as to OAH Issue Three (JEEs) as to the remedy—

21 GSD is ORDERED to fund IEEs in the areas of speech/language, functional

22 behavior, OT, and AT/AAC. Judgment will issue.

23

24 IT IS SO ORDERED.

25 June 16, 2021

26 eee wt a

Jk tf, eB

28 OTIS ms se II

UNITED STATES’DISTRICT JUDGE