Etiwanda School District v. D. P.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. EDCV 22-1446 JGB (SHKx) Date January 11, 2024

Title Etiwanda School District v. D. P.

Present: The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: FINDINGS OF FACT AND CONCLUSIONS OF LAW (IN

CHAMBERS)

This matter involves an appeal of an administrative special education due process hearing

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

with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”). Plaintiff Etiwanda School

District (“District” or “Plaintiff”) seeks partial reversal of an OAH decision in which

Administrative Law Judge Claire Yazigi (“ALJ”) found that (1) the Individualized Education

Program (“IEP”) prepared for minor student D.P. (“Defendant”) denied Defendant a free,

appropriate public education (“FAPE”), which is owed to Defendant under the IDEA, and (2)

the District prevented Defendant’s parent (“Parent”) from meaningfully participating in the

development of Defendant’s IEP by holding the IEP meeting without them. (“Complaint,” Dkt.

No. 1.) For the reasons set out below, the Court AFFIRMS the OAH Decision.

I. BACKGROUND

On August 16, 2022, the District filed a complaint against Defendant D.P., a minor

(“D.P.”). (“Complaint,” Dkt. No. 1) seeking judicial review of the ALJ decision. (Id.) On

October 5, 2022, D.P. answered. (“Answer,” Dkt. No. 11.) On January 13, 2023, the parties

filed a Joint Rule 26(f) Report. (“Report,” Dkt. No. 14.) On January 25, 2023, the Court set a

briefing schedule. (“Scheduling Order,” Dkt. No. 15.) Pursuant to that schedule, on March 15,

2023, Plaintiff filed a motion requesting modified de novo review and partial reversal of the ALJ’s

decision. (“Motion,” Dkt. No. 17.) On April 28, 2023, Plaintiff submitted a notice stating that

D.P. had not submitted an opposition to Plaintiff’s Motion. (Dkt. No. 20.)

On June 16, 2023, the Court issued an order to show cause in writing why D.P. failed to

file his cross motion and an opposition or notice of non-opposition to Plaintiff’s Motion in

accordance with the deadlines in the Scheduling Order. (“OSC,” Dkt. No. 21.) The Court also

ordered D.P. to file an opposition or a notice of non-opposition to Plaintiff’s Motion by Friday,

June 30, 2023. (Id.) On June 23, 2023, D.P. timely responded, indicating that D.P.’s counsel

were ill and had technical difficulties with their email. (“Response,” Dkt. No. 22.) On June 27,

2023, the Court discharged the OSC, ordered D.P. to file an opposition or a notice of non-

opposition to Plaintiff’s Motion by July 3, 2023, and ordered D.P. to file his cross motion by July

10, 2023. (“June 27, 2023 Order,” Dkt. No. 23.)

On July 3, 2023, D.P. filed an opposition to Plaintiff’s Motion. (“Opposition,” Dkt. No.

24.) On July 6, 2023, Plaintiff filed a request for clarification of the Court’s June 27, 2023 Order,

requesting that it be allowed to provide briefing and documentary evidence to support its

contention that D.P.’s counsel was not ill contrary to D.P.’s counsel’s assertions in its Response

to the Court’s OSC, and asking that if the Court would not allow Plaintiff to provide briefing in

support of its contention regarding D.P.’s counsel’s conduct, then the Court would clarify

whether Plaintiff may file an opposition and/or reply to D.P.’s Opposition and D.P.’s future

cross motion. (“Clarification Request,” Dkt. No. 25.) The Court declined to allow Plaintiff to

respond to D.P.’s Response to the Court’s OSC and instructed Plaintiff may file a reply to D.P.’s

Opposition. (“Order on Clarification Request,” Dkt. No. 29.) Because D.P. did not file a cross

motion, the Court concluded that Plaintiff’s request to file an opposition to the cross motion is

moot. (Id.)

II. LEGAL STANDARD

A. IDEA, IEP, and FAPE

As stated in the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq.

(“IDEA”), a primary purpose of the Act is to assure that all children with disabilities have

available to them a free, appropriate public education (“FAPE”) that emphasizes special

education and related services designed to meet their unique needs. 20 U.S.C. § 1400(c). Under

the Supreme Court’s 1982 decision interpreting this provision of the Act, a FAPE “consists of

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

supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.”

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176,

188–89 (1982).

The Supreme Court concluded that states must provide a “basic floor of opportunity” to

disabled students, and that Congress “did not impose upon the States any greater substantive

educational standard than would be necessary to make such access meaningful.” Rowley, 458

U.S. at 197; see also J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947, 951 (9th Cir. 2010)

(citing Rowley as to standards governing FAPE and holding that Rowley remains binding

precedent).

The IDEA requires that states and local educational agencies (“LEAs”) that receive

IDEA funds offer a FAPE to students who have qualifying disabilities. Fry v. Napoleon

Community Schls., 580 U.S. 154 (2017). If a parent disagrees with what an IEP offers, she may

file for a due process hearing. 20 U.S.C. § 1415(b)(6).

B. Judicial Review of IDEA Administrative Decisions

Under Section 1415(e)(2) of the IDEA, a district court reviewing a state administrative

decision shall base its decision “on the preponderance of the evidence.” 20 U.S.C. § 1415(e)(2).

The Ninth Circuit has interpreted this as calling for de novo review of the appropriateness of an

education program. Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994); see also M.L.

v. Fed. Way Sch. Dist., 394 F.3d 634, 642 (9th Cir. 2005) (“We review de novo whether a school

district’s proposed IEP provides a FAPE under the IDEA.”) However, it has cautioned that

federal courts must give “due weight” to judgments of education policy in reviewing state

hearings and “should not substitute their own notions of sound educational policy for those of

the school authorities which they review.” Smith, 15 F.3d at 1524 (internal quotation marks

omitted). This cautionary approach is reiterated by the Supreme Court, which warned in 1982,

“[T]he provision that a reviewing court base its decision on the ‘preponderance of the evidence’

is by no means an invitation to the courts to substitute their own notions of sound educational

policy for those of the school authorities which they review. The very importance which

Congress has attached to compliance with certain procedures in the preparation of an IEP would

be frustrated if a court were permitted simply to set state decisions at nought.” Bd. of Educ. of

Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206–07 (1982).

Thus, the standard of review has been characterized as “modified de novo review,”

because, although the court may decide questions of law and fact, it should afford deference to

the state’s “specialized knowledge and experience,” particularly where ALJ findings are

“thorough and careful.” Ashland Sch. Dist. v. Parents of Student E.H., 583 F. Supp. 2d 1220,

1222–23 (D. Or. 2008), aff’d, 587 F.3d 1175 (9th Cir. 2009); see also J.G. v. Douglas Cnty. Sch.

Dist., 552 F.3d 786, 793 (9th Cir. 2008) (the Ninth Circuit gives “due weight to the state

administrative proceedings” and gives “particular deference to thorough and careful

administrative findings”) (internal quotations omitted).

Furthermore, in an action for judicial review of an administrative decision, the burden of

persuasion rests with the party challenging the ALJ’s decision. L.M. v. Capistrano Unified Sch.

Dist., 556 F.3d 900, 910 (9th Cir. 2009); see also C.L. v. Lucia Mar Unified Sch. Dist., No. CV

12-9713 CAS PJWX, 2014 WL 117339, at *2 (C.D. Cal. Jan. 9, 2014), aff’d sub nom. C.L. ex rel.

V.L. v. Lucia Mar Unified Sch. Dist., No. 14-55119, 2016 WL 1169960 (9th Cir. Mar. 25, 2016)

(same). Accordingly, Plaintiff here bears the burden of showing that the ALJ’s decision does not

deserve deference, and that the preponderance of the evidence shows that the District’s IEP does

not provide a FAPE under the IDEA.

C. Findings of Fact1

“In bench trials, Fed. R. Civ. P. 52(a) requires a court to ‘find the facts specially and state

separately its conclusions of law thereon.’” Vance v. American Hawaii Cruises, Inc., 789 F.2d

790, 792 (9th Cir. 1986) (quoting Fed. R. Civ. P. 52(a)). “One purpose behind Rule 52(a) is to

aid the appellate court’s understanding of the basis of the trial court’s decision. This purpose is

achieved if the district court’s findings are sufficient to indicate the factual basis for its ultimate

conclusions.” Id. (citations omitted).

Findings of fact can be overturned only when clearly erroneous. Amanda J. ex rel.

Annette J. v. Clark County School District, 267 F.3d 877, 887 (9th Cir. 2001); see Federal Rule of

Civil Procedure 52(a). A finding of fact is clearly erroneous when the evidence in the record

supports the finding but “the reviewing court is left with a definite and firm conviction that a

mistake has been committed.” Id. (citing Burlington Northern, Inc. v. Weyerhaeuser Co., 719

F.2d 304, 307 (9th Cir. 1983).

III. DISCUSSION

A. Request for Judicial Notice

The District requests that the Court take judicial notice, pursuant to Federal Rule of

Evidence 201, of two documents: (1) a March 27, 2015 decision issued by the Oregon

Department of Education, 115 LRP 17208 (the “Oregon Dept. of Edu. Decision”); and (2) an

August 20, 2021 Decision in Parent on Behalf of Student v. Chaffey Joint Union High School

District, Office of Administrative Hearings Case No. 2020120161 (“Chaffey Decision”).

(“RJN,” Dkt. No. 19.) Defendant does not oppose the RJN. Proceedings of other courts,

including orders and filings, are the proper subject of judicial notice when directly related to the

case, though not for the truth of the contents of the underlying documents. See United States ex.

Rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 917 F.2d 244, 248 (9th Cir. 1992)

(holding that courts “may take notice of proceedings in other courts, both within and without the

federal judicial system, if those proceedings have a direct relation to matters at issue”); Neilson

v. Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1113 (C.D. Cal. 2003) (“[C]ourt orders

and filings are the type of documents that are properly noticed under [Fed. R. Evid. 201(b).]”);

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly,

the decisions are subject to judicial notice and the Court GRANTS the RJN.

//

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1 The Court elects to issue its decision in narrative form because a narrative format more

fully explains the reasons behind the Court’s conclusions, which aids appellate review. Any

finding of fact that constitutes a conclusion of law is hereby adopted as a conclusion of law, and

any conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact.

B. Findings of Fact

The following constitutes the lion’s share of the Court’s findings of fact based on the

Administrative Record. The ALJ made additional findings of fact specific to the issues on appeal

here, and those issue-specific facts are considered more fully below.

1. D.P.’s Background

At the time of the OAH hearings in March and April 2022, D.P. was a 12-year-old boy in

sixth grade and resided in the geographic boundaries of the Etiwanda School District at all

relevant times. (“OAH Decision,” Dkt. No. 1-1 at 5.) D.P. received special education and

related services based on a primary eligibility of Multiple Disabilities (“MD”) including

Intellectual Disability (“ID”), Other Health Impairment (“OHI”), and Speech or Language

Impairment (“SLI”). (Id.; Administrative Record (“AR”) at 653.)

2. The District’s Attempts to Schedule D.P.’s 2021 IEP Team Meeting

In April 2021, the District first attempted to schedule D.P.’s IEP team meeting. (A.R. at

558.) A meeting notice was sent to Parent and their counsel on April 16, 2021, a copy of that

notice sent again to Parent on April 20, 2021, and yet another copy sent to Parent and their

representative via email and United States mail on April 23, 2022. (Id. at 559–560.) The

District, having not received a response, began sending prior written notices (“PWNs”) with

proposed meeting dates. (Id. 505.) The District sent five PWNs before the school year ended on

May 18, 2021. (See id. at 505, 540, 556, 558, 607.)

The following school year, the District renewed its attempts to schedule D.P.’s IEP team

meeting. It sent notices to Parent and Parent’s representative three times through July and

August 2021 before Parent’s representative responded; the representative notified District

representatives that he planned to audio-record the IEP team meeting scheduled for August 16,

2021, before canceling the meeting the day it was set to take place and requesting the District

reschedule. (Id. at 610, 613, 616, 620.) The District sent another PWN on August 19, 2021, and

the District’s legal counsel contacted Parent’s representative on August 20, 2021. (Id. at 619,

623.) Additional contact attempts were made on August 23, 2021, August 26, 2021, August 27,

2021, and August 30, 2021, September 7, 2021, and September 14, 2021. (Id. at 626, 628, 632.)

D.P.’s teacher also sent home three meeting notices in D.P.’s backpack on September 15, 2021,

and, receiving no response, the District sent yet another PWN on September 20, 2021 offering to

hold the IEP team meeting on September 24, 2021. (Id. at 636.) On September 24, 2021,

Parents’ representative notified the District that one of the Parents had an injury which barred

them from participating in the IEP meeting scheduled for that day. (Id. at 640.)

On September 27, 2021, the District requested the Parents provide dates suitable for an

IEP team meeting; Parents did not respond, so the District sent another PWN on October 1,

2021. (Id. at 640, 643.) On October 14, 2021, Parents’ representative informed the district that

Parents were available on October 21 or 22, 2021—the first time Parents or their representative

had provided any dates they were able to attend an IEP team meeting since the District began

contacting them in April 2021. (Id. at 646.) The District informed Parents that they could not

schedule the meeting for either date provided because the 12 team members who were required

to participate could not attend; the District provided alternative dates of November 5, December

7, or December 8, 2021. (Id.) Hearing no response, the District sent another PWN on October

20, 2021 reiterating the proposal. (Id. at 646.) This PWN also stated that I Parents refused to

respond to the request, the District would hold the meeting without Parents on December 8,

2021. (Id.) On November 3, 2021, the District sent a final PWN. (Id. at 650.)

3. The May 2021 Assessment

In May 2021, the District completed D.P.’s triennial assessment, which included

assessment in the following areas: psycho-education, speech and language, occupational therapy,

physical therapy, health, academics, and a functional behavior analysis. (A.R. at 483-491, 493-

503, 508-511, 513-538, 542-554.)

4. The December 8, 2021 IEP Team Meeting

On December 8, 2021, the District convened D.P.’s IEP team meeting without Parents.

(Id. at 696-700.) The IEP team reviewed D.P.’s May 2021 assessment and concluded that D.P.

continued to be eligible for special education under Multiple Disabilities (“MD”) and Speech or

Language Impairment (“SLI”). The IEP team identified the following goals: three

speech/language/communication goals to address D.P.’s needs in the areas of pragmatics/social

skills, vocabulary development, and AAC development, and an occupational therapy goal to

address D.P.’s fine/visual motor skills aimed at developing foundational skills needed for writing.

(A.R. at 704, 684-686, 687, 1621:5-1623:13, 1676:6-1681:17.) It was also determined that these

goals could be implemented for the remainder of the school year in the “moderate/severe special

day class” at Falcon Ridge Elementary School. (Id. at 704, 694-695, 690-691.)

The FAPE offered by the IEP team also included the following:

 1230 minutes per week for English Language Arts, Math, Social Studies and

Science;

 speech and language services 3 times per week for 20 minutes each session (2

sessions individual and 1 small group);

 occupational therapy 25 sessions per year for 20 minutes each session push-in;

 a full-time one-on-one aide;

 60 minutes per month of consultation by a Board-Certified Behavior Analyst;

and,

 door to door transportation.

(A.R. at 704, 694-95, 690-91.) Additionally, the IEP team recommended that for the 2022-2023

school year, since D.P. would be transitioning to middle school, he should be placed in a

moderate/severe special day class for core academic classes, with the services minutes adjusted

for the length of the middle school instructional day, but all other services remained the same.

(Id. at 690, 704-05.)

5. The Due Process Hearing and OAH Decision

On January 21, 2022, the District filed a request for due process hearing with OAH,

seeking a determination that the IEP offered Defendant a FAPE such that the district could

implement the IEP without Parents’ consent. (Id. at 1–9.) On January 24, 2022, Parents filed

their own due process hearing request, alleging a number of FAPE claims against the District.

(Id. at 48–79, 80–132.) The matters were consolidated and the ALJ held a due process hearing

over seven days in late March and early April 2022. (Id. at 184–188, 805; see OAH Order.) The

following issues were presented:

D.P.’s Issues

1. Did Etiwanda deny Student a FAPE by failing to conduct an appropriate

psychoeducational assessment dated May 17, 2021?

2. Did Etiwanda deny Student a FAPE by failing to conduct a functional behavior

analysis of Student prior to the December 8, 2021 IEP team meeting?

3. Did Etiwanda’s December 8, 2021 IEP deny Student a FAPE by failing to offer

Student:

 Appropriate goals in the areas of:

i. Listening comprehension;

ii. Vocabulary;

iii. Sorting;

iv. One-to-one correspondence;

v. Personal information;

vi. Functional equivalent replacement behavior;

vii. General positive behavior;

viii. Pragmatics and social skills;

 A behavior intervention plan;

 Appropriate services to address Student’s auditory processing sensory

deficits;

 A one-to-one aide for the entire school day, and during Student’s

round trip bus transportation to school;

 Placement in a general education classroom for 50 percent of Student’s

school day;

 Home applied behavior analysis therapy and clinic meetings;

 Parent training for addressing Student’s behavioral issues;

 Equestrian therapy;

 Appropriate speech and language services;

 Appropriate occupational therapy;

 An independent educational evaluation of Student’s need for physical

therapy and agreement to fund physical therapy by a non-public agency

based on the independent evaluator’s recommendation;

 Behavior counseling; and,

 Tutoring by a non-public agency?

4. Did Etiwanda prevent Parent from meaningfully participating in the

development of Student’s IEP by holding Student’s December 8, 2021 IEP team

meeting without Parent?

The District’s Issue

5. Did Etiwanda’s December 8, 2021 IEP offer Student a FAPE such that

Etiwanda can implement the December 8, 2021 IEP without Parents’ consent?

(A.R. at 806–808.)

On May 27, 2022, the ALJ issued a decision in favor of the District on D.P.’s issues 3(a) –

(h), (l), and (m), and in favor of D.P. on Issue 3(i), (j), and (k), 4, and 5. (See OAH Decision.)

C. Conclusions of Law

The District argues that the December 8, 2023 IEP offered D.P. a FAPE, and the ALJ

erred in concluding otherwise. Each of the ALJ’s five decisions against the District concerns an

aspect of the IEP that the ALJ concluded was inadequate. The Court discusses each in turn.

1. Issue No. 5: Whether the IEP Offered D.P. a FAPE Such That The District May

Implement the IEP Without Parents’ Consent

The ALJ concluded that the IEP did not offer D.P. a FAPE, and thus the IEP could not be

implemented without Parents’ consent. For the reasons below, the Court agrees. The Court

first sets out additional issue-specific facts found by the ALJ before explaining the ALJ’s legal

analysis and the Court’s reasons for affirming the decision.

a. The ALJ’s Reasoning and Conclusion

The ALJ concluded that the December 8, 2021 IEP did not offer D.P. a FAPE such that

the District would be permitted to implement the IEP without Parents’ consent, and came to this

conclusion without reaching the question of whether Parents’ non-attendance at the IEP team

meeting was a fatal, substantive flaw that itself deprived D.P. of a FAPE. (OAH Decision at 5.)

Instead, the ALJ found that the IEP did not offer D.P. a FAPE “because the IEP team failed to

offer a goal to address [D.P.’s] intelligibility and sound production need” and “also failed to offer

a measurable vocabulary development goal, or any occupational therapy goal in praxis/motor

planning or social participation.” (Id. at 6.) These omitted goals rendered the IEP insufficient

because D.P.’s disability-related needs were not met, and the ALJ thus concluded that it was

unnecessary to inquire into the procedural compliance of the IEP (i.e., whether it was permissible

to proceed with the IEP team meeting without Parents present). (Id.)

The ALJ made the following factual findings relevant to this conclusion. First, the

District offered an intelligibility/sound production goal in D.P.’s July 2020 IEP which specified

that he would produce certain consonant-vowel combinations. (Id. at 8.) Student had not met

this intelligibility goal by the time of his May 2021 assessment and could only correctly

pronounce targeted sounds in 30% of words. (Id. at 8–9.) Cathy Wilkerson, the speech and

language pathologist for the District, provided speech and language services to D.P. and

conducted the speech and language portion of his assessment in April 2021. (Id. at 9.) Wilkerson

testified at the hearing, and the ALJ concluded that her testimony was “clear, detailed, and

exhibited a thorough knowledge of [D.P.] in the speech and language context, and was credible.”

(Id.) In her May 11, 2021 report, Wilkerson concluded that D.P. “continued to meet eligibility

criteria for a speech/language disorder in the area of, among other things, articulation; [D.P.’s]

language skills were at a three-year-old level; and that [D.P.’s] speech/language disorder was

severe.” (Id.) Wilkerson also opined that D.P. had difficulty making non-sound producing

motions with his mouth, and although he could make two or three-word utterances, most of those

words were approximations. (Id.) She also testified that she was trained to facilitate articulation

by using tactile cues such as placing her hands on a student’s mouth, but D.P. did not like to be

touched. (Id. at 10.) Wilkerson ultimately concluded that most of D.P.s phoneme and/or

phonological process errors were not stimulable for correct production, but did not opine that

this conclusion meant further intelligibility/sound production work was futile. (Id. at 9.) Indeed,

the December 8, 2021 IEP team found that intelligibility and sound production were areas of

need, and that goals would be written to address this area. (Id. at 8–9.)

The December 8, 2021 IEP did not, however, offer a goal in intelligibility and sound

production, and included a progress report on the July 2020 intelligibility goal which stated that

D.P. had not progressed on that goal due to his lack of participation in distance learning during

the COVID pandemic. (Id. at 10.) According to the ALJ, “no witness at [the] hearing testified

that the December 8, 2021 IEP team concluded [D.P.] could not longer benefit from work on an

intelligibility goal, or gave explanation as to why an intelligibility goal was not included.” (Id.)

As such, the District “failed to offer a necessary goal to address [D.P.’s need in intelligibility and

sound production, rendering the IEP insufficient to constitute a FAPE or to implement without

parental consent.” (Id.)

The ALJ also found facts and provided reasoning specific to her conclusion concerning

the immeasurability of D.P.’s vocabulary development goal. The relevant vocabulary

development goal states that D.P. would identify, sort and label at least 24 items/pictures into

categories “with verbal approximation sign, speech generating device” with 70% accuracy over

four consecutive sessions with no more than two additional verbal or visual cues. (Id. at 11.)

However, the goal did not specify whether it would be met if D.P. used any of the methods to sort

a total of 24 items/pictures, or if instead he was expected to sort 24 items using each method—

that is, verbal approximation, sign, and speech generating device. (Id.) Because the goal was not

specific as to be how it would be measured, it was not legally compliant, and rendered the IEP

defective, barring the Distract from implementing the IEP without parental consent. (Id.)

Finally, the ALJ concluded that because the IEP failed to address D.P.’s needs in

praxis/motor planning and social participation, the IEP was defective and did not provide a

FAPE. (Id. at 11–14.) This ALJ reached this conclusion after weighing competing testimony

offered by the District’s occupational therapist, Will Hardy, and the witness offered by Parents,

JanDee Goodiss, an occupational therapist who was not affiliated with the District but who,

during her career, provided pediatric occupational therapy to children, including at another

California school district. (Id.)

Hardy provided occupational therapy services to D.P. from March 2020 until February

2022 and conducted D.P.’s April 2021 occupational therapy assessment. (Id. at 12.) He

concluded in his report that D.P. had school-based occupational therapy needs in fine motor and

pre-writing skills, and the IEP team offered D.P. a goal in this area. (Id.) But Hardy also found

that D.P. exhibited “definite dysfunction” in praxis/motor planning and social participation, but

did not identify these as areas of need for D.P., because his dysfunctions in praxis/motor

planning and social participation were not due to any sensory processing impairment. (Id. at 12–

13.) The IEP team thus did not offer D.P. goals in those areas. (Id.) The ALJ found Hardy’s

testimony credible based on his education qualifications, and experience, and noted that D.P. did

not challenge the appropriateness of Hardy’s assessment of D.P. (Id. at 12.)

Goodiss did not assess or provide occupational therapy services to D.P., but in

preparation for the hearing, she observed D.P. on a 15-minute video call and reviewed records of

Hardy’s assessment report and the December 8, 2021 IEP. (Id. at 13.) The ALJ found that

Goodiss testified thoughtfully and was credible based on her more than 40 years of experience as

a pediatric occupational therapist. (Id.) Goodiss testified that the District should have included a

motor planning goal for D.P. (Id.) She based this opinion on the following: (1) the Sensory

Processing Measure administered by Hardy during the assessment, which determines whether

sensory systems influence praxis/motor planning and social participation; (2) the fact that

Parents and D.P.’s teacher at the time of the assessment believed that D.P. had difficulty with

motor planning; and, (3) Hardy observed poor motor planning in his clinical observation of D.P.

(Id.)

Based on the testimony, the ALJ concluded that Hardy’s conclusion that D.P.’s

occupational therapy need was limited to fine visual and motor skills and did not include

praxis/motor planning or social participation was not supported by the evidence. (Id. at 14.)

Hardy’s assessment demonstrated that D.P. exhibited definite dysfunction in praxis/motor

planning and social participation, and as such, a proper IEP would have addressed those needs,

even if those impairments were caused by poor sensory processing. (Id.) The District thus failed

to offer D.P. a FAPE and could not implement the IEP without parental consent. (Id.)

b. Analysis

The District argues the ALJ’s factual conclusions were incorrect because: (1) “[t]he

evidence and testimony presented at hearing supports a finding that [the District] did not require

IEP goals in the areas of intelligibility and sound production in order to receive a FAPE”; (2)

“the ALJ incorrectly concluded that the vocabulary goal was not measurable”; and, (3) “[t]he

record clearly establishes that Defendant did not require goals in [praxis/motor planning and

social participation] because they were not necessary to receive a FAPE based on Defendant’s

unique needs.” (Motion at 11–16.) The Court disagrees with the District in all respects.

At the outset, the Court finds that the ALJ’s decision is thorough and careful and

therefore subject to special deference under “modified” de novo review. See J.G. v. Douglas

Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008). The ALJ’s decision contains a factual

background and issue-specific analysis, as well as conclusions regarding the credibility of those

who testified at the hearing. Therefore, the Court summarily rejects much of the District’s

argumentation concerning the sufficiency of the evidence as attempts to second-guess the ALJ’s

thorough fact-finding.

The District argues that sound intelligibility and production goals were not necessary, and

the ALJ erred by concluding otherwise because there was no affirmative evidence presented at

the hearing which indicated that such goals were necessary. (Motion at 11–12.) Not so. The ALJ

concluded that although Wilkerson’s testimony was credible, she did not—nor did any other

witness—credibly testify that the December 8, 2021 IEP team concluded D.P. could not longer

benefit from an intelligibility goal. (OAH Decision at 10.) The ALJ found that because sound

intelligibility and production goals were included in a previous IEP, those goals were not met, and

no explanation for why the IEP team failed to include those goals in the December 8 IEP was

offered, those goals were still necessary, and the District failed to offer them. (Id. at 9–10.) That

conclusion is eminently reasonable. As the District points out, the Supreme Court has instructed

that a FAPE must provide a “basic floor of opportunity” to disabled students, not a “potential-

maximizing education.” Rowley, 458 U.S. at 201 n. 23 (1982). Contrary to the District’s

position, however, the ALJ did not misapply the standard for determining whether an IEP goal is

necessary. (See Motion at 12.) The ALJ did not inquire into whether D.P. “could benefit” from

sound intelligibility and production goals; she considered whether there was sufficient evidence

justifying the removal of those goals from a prior IEP, and concluded that there was none. The

Court agrees, and concludes that the December 8, 2021 IEP failed to include necessary sound

intelligibility and production goals, and thus the District failed to offer D.P. a FAPE.

The Court also rejects the District’s argument the ALJ incorrectly concluded that the

vocabulary goal was not measurable. The ALJ’s decision properly states the law concerning the

measurability of IEP goals:

The IEP must include a statement of measurable annual goals, including academic

and functional goals, designed to meet the child’s needs that result from the

child’s disability to enable the child to be involved in and make progress in the

general education curriculum, and meet each of the child’s other educational

needs that result from the child’s disability. 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34

C.F.R. § 300.320(a)(2); Ed. Code, § 56345, subd. (a)(2). In addition, the IEP

must contain statements of how the child’s goals will be measured and the special

education and related services, based on peer-reviewed research to the extent

practicable, that will be provided to the student. 20 U.S.C. §1414(d)(1)(A)(i)(III),

(IV); 34 C.F.R. § 300.320(a)(3), (4); Ed. Code, § 56345, subd. (a)(3), (4).

(OAH Decision at 10–11.) The District contends, however, that “goals don’t necessarily need to

detail every step of the measurement process in order to be measurable, and the regulations do

not list rigid requirements for what to include an annual goal.” (Motion at 14.) In support of this

contention, the District cites an Oregon Department of Education Administrative Officer

decision, which the Court references by judicial notice as detailed above. (Id.) This decision is

not binding nor persuasive, and the District fails to offer any pincite which might indicate to the

Court why the District believes the decision sheds light on the question presented here. Of

course, the District is correct that goals need not detail “every step of the measurement

process,” but that is not what the ALJ concluded.

The ALJ found that the goal which stated that D.P. would identify, sort and label at least

24 items/pictures into categories “with verbal approximation, sign, speech generating device”

was unclear because the goal might require that D.P. be able to use those three methods in

conjunction to identify 24 items or, instead, require D.P. to be able to use each method separately

to identify 24 items. (Id. at 10–12.) The Court agrees that the goal is vague and could be

interpreted in two different ways, and thus affirms the ALJ’s decision that the goal was not

specific as to how it would be measured, which rendered the IEP defective such that the IEP did

not constitute a FAPE.

Finally, the Court affirms the ALJ’s decision that the IEP failed to include necessary goals

in praxis/motor planning and social participation. The District urges that the ALJ improperly

weighed the testimony of its expert, Hardy, and Parents’ expert, Goodiss. (Motion at 15–16.)

The Court defers to the ALJ’s decision regarding the relative weight to give each expert. The

District is correct that “an IEP must take into account what was, and what was not, objectively

reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” (Motion at 16

(quoting J.G., 552 F.3d at 801).) Goodiss did not assess D.P. at the time the IEP was drafted, and

only spent a short period of time observing D.P. via Zoom in the days before the OAH hearing.

(OAH Decision at 13.) But the ALJ did not rely on Goodiss’s observation of D.P. The ALJ

relied instead on Goodiss’s testimony concerning Hardy’s Sensory Processing Measure and

observations. (See id.) Hardy observed poor motor planning in his clinical observation and

found that social participation was an area of definite dysfunction for D.P., and the ALJ disagreed

with Hardy’s conclusion that no praxis/motor planning goals were needed because Hardy

himself had identified these as areas of dysfunction. (Id. at 14.) The Court affirms the ALJ’s

conclusion.

In sum, the Court AFFIRMS the ALJ’s conclusion that the IEP did not offer D.P. a

FAPE, and thus the IEP could not be implemented without Parents’ consent.

2. Issue Nos. 3(i) and (j): Whether the IEP Denied D.P. a FAPE by Failing to Offer

Appropriate Speech and Language and Occupational Therapy Services

D.P. separately raised an additional issue concerning the IEP offered by the District:

whether the District failed to offer him a FAPE because the IEP did not offer adequate

occupational therapy and speech and language services. (Id. at 27.) The ALJ concluded that the

IEP did not offer D.P. adequate occupational therapy and speech and language services because

the services offered did not address the additional areas of need for which the IEP failed to offer

appropriate goals—that is, intelligibility and sound production, vocabulary development,

praxis/motor planning, and social participation. Because the occupational therapy services

offered did not address the “missing” but necessary goals, the services, too, were insufficient,

and the IEP also suffered from this flaw. (Id. at 29.)

The District misunderstands the ALJ’s ruling on this issue. The District argues that the

ALJ improperly weighed Goodiss’s testimony more heavily than Hardy’s, but Hardy credibly

testified that the occupational therapy services offered in the IEP were appropriate to allow D.P.

to progress toward his fine/visual motor goal, and no other goals were necessary. (Motion at 17.)

But the ALJ’s conclusion was based on her previous finding that the IEP failed to provide

necessary goals, and as a result, the District similarly fell short with regard to the occupational

therapy services it offered in the IEP:

[The District] established that the frequency and duration of occupational therapy

services were adequate to address [D.P.’s] fine motor and visual motor tracing

goal. The occupational therapy service offered was not, however, adequate to

address [D.P.’s] praxis/motor planning or social participation needs, because [the

District] did not offer goals in those areas, as discussed in Issue 5. [D.P.] proved

that the December 8, 2021, IEP failed to offer [D.P.] a FAPE by failing to offer

appropriate related services to meet [D.P.’s] intelligibility and sound production,

vocabulary development, praxis/motor planning, and social participation needs.

The Court agrees with the ALJ that the occupational therapy services offered by the IEP were

inadequate because they did not address the additional goals the IEP failed to include. The Court

therefore affirms the ALJ’s decision on this issue.

3. Issue No. 3(k): Whether the District Owed D.P. an Independent Physical

Therapy Evaluation and Physical Therapy by a Non-Public Agency

The final decision at issue here is the ALJ’s conclusion that the District failed to provide a

FAPE by refusing to fund an independent physical therapy educational evaluation for D.P.

(Motion at 18; OAH Decision at 32.) The ALJ also found that the District failed to offer a

physical therapy independent educational evaluation and funded physical therapy by a non-public

agency based on the results of the independent evaluation. (OAH Decision at 29–30.) The

District contends that the ALJ improperly changed the issue plead by D.P., and thus the ALJ’s

conclusion cannot stand. (Motion at 18–21.)

In his OAH pleading, D.P. described this issue as follows: “Did [the District’s] December

8, 2021 IEP deny [D.P.] a FAPE by failing to offer [D.P.] . . . [a]n independent educational

evaluation of [D.P.’s] need for physical therapy and agreement to fund physical therapy by a non-

public agency based on the independent evaluator’s recommendation.” (Id. at 18.) Accordingly,

the ALJ analyzed if the District’s December 8, 2021 IEP “denied [D.P.] a FAPE by failing to

offer [D.P.] a physical therapy independent educational evaluation.” (OAH Decision at 29.)

In reaching her conclusion, the ALJ relied on the following facts. In April 2021, physical

therapist Sloane Allen conducted a physical therapy assessment of D.P. (Id. at 29, 30.) Physical

therapist Barbara Heidelman presented Allen’s report to the IEP team on December 8, 2021.

(Id. at 30.) On January 3, 2022, Parents requested, via email from Parents’ representative, that

the District fund an evaluation by a non-public physical therapist of Parents’ choice, and that the

District fund non-public physical therapy services based on that evaluation. (Id. at 30–31.) On

January 18, 2022, the District sent Parents a PWN denying the request, which stated: “if you

disagree with the results of the District’s physical therapy assessment and are requesting an

independent educational evaluation, then please let me know so the District can respond

accordingly.” (Id. at 31.) Ultimately, the District did not fund the requested physical therapy

assessment. (Id.)

The ALJ reasoned that “the January 3, 2022 request for an independent physical therapy

evaluation was, by its nature, a disagreement with [the District’s] physical therapy assessment”

and thus “triggered [the District’s] obligation to either fund an independent evaluation or to file

for a due process determination that the district assessment was legally compliant.” (OAH

Decision at 31.) Failing to fund the evaluation or file for a due process determination concerning

the District’s assessment was a procedural violation of the IDEA because the information Parents

sought via that assessment infringed Parents’ ability to advocate for services and deprived

Parents of the ability to meaningfully participate in a discussion of D.P.’s physical therapy needs

in connection with the provision of a FAPE. (Id. at 32.) The ALJ thus concluded that the

District denied D.P. a FAPE by failing to fund an independent physical therapy educational

evaluation. (Id.)

The District argues that because IEPs “do not offer independent educational

evaluations,” and are instead “meant to offer an educational program that the District believes to

be a FAPE based on the student’s unique needs after assessments . . . the issue the ALJ should

have decided was whether the December 8, 2021 IEP denied [D.P.] a FAPE based on a failure to

provide physical therapy services.” (Motion at 18.) The Court disagrees. Contrary to the

District’s assertion, the ALJ posed the correct question—that is, the question presented by D.P.:

whether the District’s failure to provide an independent educational evaluation for physical

therapy denied D.P. a FAPE. (See A.R. at 546–546, 736.) And if the District did not agree with

the issue as framed, it could have objected to that framing prior to and/or during the hearing.

The Order Following Prehearing Conference, which was issued March 16, 2022 by

Administrative Law Judge Robert G. Martin, plainly stated the issues which would be heard at

the OAH Hearing. (See A.R. at 736–737.) Among those issues was: “Did [the District’s]

December 8, 2021 individualized education program deny [D.P.] a FAPE by failing to offer [D.P.]

[a]n independent educational evaluation of [D.P.’s] need for physical therapy and agreement to

fund physical therapy by a non-public agency based on the independent evaluator’s

recommendation?” (Id.) The District cannot now object to the framing of that question merely

because it is dissatisfied with the ALJ’s conclusion.

In any event (and as the District concedes), an ALJ may reorganize and restate the issues

set for hearing. See Ford ex rel. Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086, 1090 (9th

Cir. 2002). The Court is not persuaded by the District’s unsupported belief that the ALJ should

have analyzed whether the physical therapy services offered under the December 8, 2021 IEP

were sufficient instead of whether the District’s refusal to offer an independent educational

evaluation of D.P.’s physical therapy needs denied D.P. a FAPE. The District’s attempt to

reframe the issue obfuscates the ALJ’s factual findings which support her ultimate conclusion.

The ALJ found that the District’s denial of Parents’ request for an independent physical

therapy evaluation constituted a procedural IDEA violation which interfered with parental

participation in the development of the IEP, and thus the District failed to provide a FAPE. That

conclusion is reasonable. The procedural safeguards of the IDEA provide that under certain

conditions, parents are entitled to obtain an independent evaluation of a child at public expense.

See 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(a) & (b); Ed. Code §§ 56329(b), 56506(c). If

IDEA procedural violations significantly impede parents’ opportunity to participate in the

decision-making process concerning the provision of a FAPE or otherwise causes a deprivation of

educational benefits, then such violations may be held to have denied a FAPE. See Ed. Code §

56505 (f)(2); see also W.G., et al. v. Bd of Trustees of Target Range Sch. Dist., 960 F.2d 1479,

1484 (9th Cir. 1992) (superseded in part by statute on other grounds). The ALJ concluded that

Parents’ request for an IEE triggered an obligation on the part of the District to provide that

assessment or file for due process to defend it. (OAH Decision at 32.) Because the District did

neither of those things, Parents were not provided information critical to their ability to advocate

for D.P.’s physical therapy services, which impeded the decisionmaking process necessary to

provide D.P. a FAPE. (Id.) The District has not presented any evidence nor case law which

contradicts that conclusion.

The Court thus agrees with the ALJ’s conclusion that the District’s denial of Parents’

request for a physical therapy IEE denied D.P. a FAPE. Accordingly, the Court AFFIRMS the

OAH Decision concerning this issue.

4. Issue No. 4: Whether the District Prevented Parents from Meaningfully

Participating in the Development of D.P.’s IEP by Conducting the IEP Team

Meeting Without Parents

The final issue before this Court is whether the ALJ properly concluded that the District

prevented Parent from meaningfully participating in the development of D.P.’s IEP by holding

the December 8, 2021 IEP team meeting without Parent present. The ALJ’s decision came down

to one key fact: that despite the District’s many attempts to contact Parent and set an amenable

time and date for the IEP team meeting and Parent’s consistent lack of response, “at no time did

Parent affirmatively refuse to attend an IEP team meeting.” (OAH Decision at 35.) According

to the ALJ, although Parent “was largely uncooperative, largely unresponsive, and difficult to

work with,” Parent nonetheless suggested two potential meeting dates in October 2021. (Id.)

although the District could not convene the required attendees on those dates, that

communication from parent “indicated Parent’s willingness and desire to participate.” (Id.)

Moreover, when Parent was emailed the Zoom link for the December 8 2021 team meeting, she

responded that she would check in with her advocate. (Id.) But the District did not follow up

with Parent during that meeting to determine why Parent was not in attendance. (Id.)

The question is thus whether the correspondence between the District and Parent

justified, as a matter of law, the District convening the December 8, 2021 IEP team meeting

without Parent present. The District contends that due to Parent’s unresponsiveness it was

confronted with violating one requirement of the IDEA (parental involvement in the IEP team

meeting) with another (providing D.P. with an updated IEP), and thus “acted reasonably in

holding the December 8, 2021, IEP meeting in Parent’s absence because a failure to hold the IEP

meeting and make an updated offer of placement and services would likely result in a substantive

denial of FAPE to [D.P.]” (Motion at 21–25.) In support of that argument, the District relies on

a separate OAH ruling in OAH Case No. 2020120161, which the Court references by judicial

notice above (the “Chaffey Decision”). According to the District, that decision stands for the

proposition that where a school district goes to “great lengths to convince Parents . . . to attend

an IEP team meeting,” the district should hold the IEP meeting “‘[without Parent] under

Education Code section 56341.5(h), develop[] a proposed IEP offer, and then timely file for due

process to seek permission to implement its proposed IEP without Parent’s consent.’” (Motion

at 24 (quoting Chaffey Decision).) As the District points out, that case involves the same parents

and representative as does this matter.

The Chaffey Decision, however, differs from the matter at bar in crucial respects. There,

parent and parent’s advocate were unresponsive to attempts to schedule the IEP team meeting

and cancelled certain scheduled meetings, and although the ALJ acknowledged that

correspondence, the ALJ nonetheless admonished the school district for not initiating the IEP

process sooner. (Chaffey Decision at 22.) The ALJ also found that the school district failed to

inform Parent that it would not implement a previous IEP and that the district made substantial

changes to the student’s educational placement and instruction which did not correspond with

the previous IEP and were not identified in a new IEP. (Id. at 23–24.) In sum, the district in that

case failed to properly engage with parent concerning the IEP. The ALJ thus concluded:

Although Chaffey made multiple unsuccessful attempts to schedule Student’s

annual IEP meeting, it should have initiated the IEP process sooner. If Parent did

not respond to Chaffey’s IEP team meeting notices, Chaffey should have held the

IEP meeting under Education Code section 56341.5(h), developed a proposed IEP

offer, and then timely filed for due process to seek permission to implement its

proposed IEP without Parent’s consent.

(Id. at 22.)

In the instant matter, the ALJ relied on Doug C. v. Hawaii Dept of Educ., 720 F.3d 1038

(9th Cir. 2013) (“Doug C.”) in concluding that because Parent “did not affirmatively refuse to

attend an IEP team meeting,” and the District nonetheless conducted the IEP team meeting

without Parent present, Parent was prevented from meaningfully participating in the

development of D.P.’s IEP team meeting. (OAH Decision at 32–36.) Doug C. involved a parent

who, due to his illness, canceled an IEP meeting on the same day the meeting was scheduled and

was unable to commit to attending a meeting in the days that followed due to his illness. 720 F.3d

at 1042. The parent had previously canceled two scheduled IEP team meetings, and the IEP

deadline was days away from the last meeting parent canceled. Id. at 1041. The school’s special

education coordinator decided to continue with the meeting as scheduled because he had asked

“13 people on three separate occasions to change their schedules and cancel other

commitments,” and parent would not commit to one of the other pre-deadline dates proposed.

Id. at 1042.

The Ninth Circuit found that because the IEP team meeting proceeded “without parental

participation even though [parent] did not ‘affirmatively refuse[ ] to attend,’ but rather actively

sought to reschedule the meeting in order to participate,” parent was therefore denied the

opportunity to participate in the IEP process, and the student was denied a FAPE. Id. at 1040-41

(citing and quoting Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1078 (9th Cir.

2003) (superseded on other grounds by 20 U.S.C. § 1414(d)(1)(B)). Doug C. teaches that “the

fact that it may have been frustrating to schedule meetings with or difficult to work with [parent]

does not excuse” failing to include the parent in an IEP team meeting “when he expressed a

willingness to participate.” Id. at 1045. Schools and school districts must prioritize parent

involvement in IEP team meetings because “the IDEA’s protections are designed to benefit the

student, not the parent,” and “[a]n IEP which addresses the unique needs of the child cannot be

developed if those people who are most familiar with the child’s needs are not involved.” Id.

Indeed, given the IDEA’s purpose, the attendance of parents “must take priority over other

[team] members’ attendance.” Id.

Applying Doug C., the Court agrees with the ALJ and likewise concludes that the

exclusion of Parent from the December 8, 2021 IEP team meeting amounted to a denial of FAPE.

The District proposed multiple dates to Parent via written correspondence and Parent failed to

respond to most of those entreaties. But as the ALJ explained, the District did not change its

process of unilaterally proposing dates. Parent made three attempts to reschedule the IEP team

meeting, and for two of the dates Parent suggested, the District could not gather the required

attendees. In addition, Parent responded to an email with the Zoom link for the December 8,

2021 IEP meeting and informed the District that she would check in with her advocate regarding

the meeting. When Parent did not attend the meeting, the District did not follow up with Parent.

These facts are more like those presented in Doug C. than in the Chaffey Decision.

To be sure, the Court understands the frustrations caused by Parent and Parent’s

advocate, who were, as the ALJ described, “largely uncooperative, largely unresponsive, and

difficult to work with.” (OAH Decision at 35.) In certain circumstances, it would be reasonable

for the District to have moved forward with the IEP team meeting without Parent. But here,

where Parent had expressed interest in participating and offered dates for a potential meeting, the

District must do more than present an ultimatum and proceed. Had the District engaged in a

similarly persistent but less unilateral method of proposing potential meeting dates or waited to

hear from Parent regarding the December 8, 2021 date after receiving Parent’s response to the

Zoom invitation, the Court may have reached a different result.

In light of the relevant case law and the ALJ’s factual findings, the Court agrees with the

ALJ that the District prevented Parent from meaningfully participating in the development of the

IEP by holding the IEP team meeting without Parent. The Court therefore AFFIRMS the ALJ’s

decision with respect to this issue.

IV. CONCLUSION

Based on its findings of fact and conclusions of law, the Court concludes that the District

has not demonstrated that the ALJ’s factual findings were clearly erroneous, nor has the District

shown that any of the issues in the OAH Decision were improper as a matter of law.

Accordingly, the Court AFFIRMS the OAH Decision.

IT IS SO ORDERED.