C.B. v. GARDEN GROVE UNIFIED SCHOOL DIST.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RONALD S.W. LEW, Senior District Judge.

A court trial was conducted in this matter on July 15, 2009. Tania Whiteleather appeared on behalf of Plaintiff, and Marlon Wadlington appeared for Defendant. Having considered the administrative record, the trial briefs of both parties, and oral argument at trial, the Court HEREBY FINDS AS FOLLOWS:

Findings of Fact

Student resides within the Garden Grove Unified School District with Guardian, who is her maternal aunt and legal guardian.

Student is eligible for special education and related services in the categories of autistic-like behaviors and other health impairments due to attention deficit disorder.

Student's annual Individualized Education Program (IEP) was held February 8, 2006 and February 26, 2006. The IEP team determined that Student had unique needs in reading comprehension, math, math applications, written communications strategies, pre-vocational, psychomotor (gross motor skills), socialization, fine motor skills, and social skills communication.

At the February 8 and 26, 2006 IEP meetings, the District offered placement at Cook Elementary School, and various individualized services. The services included: speech and language (SL) therapy for 45 minute pull-out individual and 45 minutes in class per week; adaptive physical education (APE) weekly collaboration for 30 minutes and direct supervision for 30 minutes every other week; Resource Specialist Program (RSP) for 345 minutes per week for reading comprehension and math; occupational therapy (OT) for 45 minutes two times per week, once at school and once at the OT clinic; extra classroom aide for five hours per day on school days; intensive behavior intervention (IBI) services for 30 minutes prior to school for pre-teaching and socialization opportunities, 20 minutes at morning recess and 40 minutes at lunch recess to address socialization; and social skills for 30 minutes per week for consultation within the class and recess in the natural setting. Guardian did not consent to this IEP.

On February 24, 2006, Guardian filed a dissent letter to be attached to the IEP. Guardian believed more services were needed throughout the school day, including further behavioral supervision and consistent aide services throughout the day.

Further IEP meetings were conducted on behalf of Student on June 15, 2006 and October 13, 2006. The June 15, 2006 IEP modified Student's program beginning September 2006 to include SL services for 45 minutes twice weekly, one-to-one pull-out service, and audiology services for 30 minutes one time in September and one time per quarter afterwards. The October 13, 2006 meeting included discussions regarding Guardian's allegation that Student was not receiving SL and reading comprehension services, and notice that Guardian would be obtaining private services and seeking reimbursement from the District.

Another IEP meeting was conducted on Student's behalf on February 5, 2007. However, this meeting was not completed. The IEP team agreed to reconvene in March 2007, which was later rescheduled to April 9, 2007. However, this meeting was again not completed at this time. The team agreed to meet again in May 2007 to complete the IEP, which was later rescheduled to June 15, 2007. This June 15, 2007 meeting did not go forward because members of the IEP team were not able to attend, and Guardian would not waive the presence of these team members.

On June 18, 2007 Guardian delivered a letter to District dated June 15, 2009 informing them that because Student did not have an offer of placement, she would privately place student and seek reimbursement.

On June 20, 2007 the District sent a Notice of Proposed Action and Refused Actions to Guardian denying the request contained in her June 15, 2007 letter and making an offer of placement for Extended School Year (ESY) 2007. The District offered placement in general education (GE) at Excelsior Elementary School, extra classroom support aide and SL for 30 minutes, one time per week individual service. The letter noted that the District considered input from the IEP team members, including discussions at the prior IEP meetings, and reviews of Student's performance.

The June 20, 2007 letter from District to Guardian also included an offer of placement from September 2007 to the annual review in February 5, 2008. The District offered Student specialized academic instruction for 1550 minutes per week in a mild-moderate special day class (SDC) at Hill Elementary School, with the following services: extra classroom aide support 300 minutes per day for the first four weeks, with a fade plan reduction of 75 minutes per day each week for four weeks; SL for 45 minutes one time per week individual instruction, OT for 45 minutes one time per week individual therapy in the OT clinic and 45 minutes one time per week school-based individual therapy; IBI for 90 minutes per week after school in the IBI clinic and 20 minutes recess support, to ensure generalization of social skills and functional communication skills learned in the IBI clinic; APE for two 30-minute collaboration sessions per month, and two 30-minute consultation sessions per month, in collaboration and consultation with the GE physical education teacher; and counseling and guidance services 30 minutes per week collaboration in the SDC by a school psychologist; and audiology services for 30 minutes of consultation four times per year in the SDC.

In a letter dated August 14, 2007, Guardian's attorney rejected the District's offered placement and indicated that Guardian would self-fund placement for Student and seek reimbursement. Guardian rejected the offer of placement because it offered an SDC when student had previously been in GE, did not include an offer for proper transition from GE to SDC, did not include an offer of aide support, and did not offer goals and objectives for the proposed SDC.

After Guardian rejected the District's offered placement, Student received instruction at RLC. Student originally began receiving supplemental services at RLC in November 2006, and began attending RLC exclusively in June 2007. Student attended RLC exclusively for the summer program from June 1, 2007 to August 10, 2007, and again for the entire 2007-2008 school year. These services were paid for by Guardian.

RLC provides individual and small group interaction in the areas of reading, writing, math instruction, and SL services. RLC does not provide social skills training and does not have a behaviorist or school psychologist on staff. Pursuant to its certification from the state of California, the RLC can only provide language based services. Therefore, RLC can provide math word problems and vocabulary, but not arithmetic calculation. RLC is a nonpublic agency (NPA), but is not a certified nonpublic school (NPS).

While at RLC, Student had made significant growth in his reading comprehension, IQ, and OT needs. Student also seemed less anxious and more confident. Student therefore benefitted from the services at RLC, and made progress on his goals.

Applicable Law

Under the IDEA, children with disabilities have the right to a FAPE, meaning special education and related services must be made available to the child at no charge to the parent or guardian. 20 U.S.C. § 1401. A FAPE must meet state educational standards and conform to the child's IEP.

There are two parts to the legal analysis of whether a school district is in compliance with the IDEA. First, the court examines whether the district has complied with the procedures set forth in the IDEA. Board of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Second, the court examines whether the IEP developed through these procedures was reasonably calculated to enable the child to receive education benefit. Id.

The IDEA does not require school districts to provide the services which maximize a student's abilities. Rather, school districts are required to provide only a "basic floor of opportunity" consisting of access to specialized instruction and related services individually designed to provide educational benefit. Id.

Procedural errors in the IEP process do not require an automatic finding of denial of a FAPE. Procedural violations constitute a FAPE denial only if the procedural inadequacies impeded the child's right to a FAPE, caused deprivation of educational benefits, or significantly impeded the parents' opportunity to participate in the IEP process. 20 U.S.C. § 1415(f)(3)(E).

When a school district does not perform exactly as detailed in the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the student's IEP. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir.2007).

When a school district fails to provide a FAPE to a student with a disability, the student is entitled to relief that is appropriate in light of the purposes of the IDEA. School Committee of Burlington v. Dept. of Education, 471 U.S. 359, 369-71, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The IDEA permits both reimbursement and compensatory education as a form of equitable relief, after the court balances the behavior of the parties. The award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied.

A school district is not required to pay for the cost of education, including special education and related services, for a pupil attending non-public school or private school if the district made a proper FAPE available to student, which was rejected by the parents. However, a district may be required to reimburse a pupil's parents for the costs of a nonpublic or private school if the child previously received special education services from the district, and the district failed to make a FAPE available to the student. 20 U.S.C. § 1412(a)(10)(C).

To receive reimbursement or compensatory education, parents need to provide the exact placement or services required under the IDEA. Parents must only provide a placement or services that address the student's needs and provide the student with educational benefit. Florence County Sch. Dist., Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

Administrative Proceedings

Guardian filed an IDEA due process hearing complaint on August 20, 2007. The matter came before Administrative Law Judge (ALJ) Richard M. Clark on May 5 through May 8, 2008. The issues presented were:

In bringing the administrative action, Guardian requested reimbursement for services rendered by the RLC, including travel costs to and from RLC. Guardian requested reimbursement for RLC expenses in the amount of $41,693.75 out of pocket to send Student to RLC from November 29, 2006 to the end of the 2007-2008 school year, plus an additional $1291.50 for the May 2008 services for a total of $42,985.25. Guardian also incurred mileage from home to RLC totaling 7036 miles, which represented 143 school days from September 2007 to April 2008, four trips per day at 49.2 miles per day. Guardian paid $3370 out of pocket for the cost of RLC during ESY 2007. For the period of August 14, 2007 through December 2007, Guardian made four trips to RLC per day at 49.2 miles per day, for 68 school days, for total mileage of 3345.60. Guardian also spent $3280 out of pocket for RLC for the period of November 2006 to June 19, 2007. For the period of August 14, 2007, the day the 2007-2008 school year began, through December 2007, Guardian paid $15,389.58 to RLC.

With regard to the questions presented, the Administrative Law Judge found as follows:

In all, the Administrative Law Judge found that the District failed to provide Student a FAPE by:

The Administrative Law Judge found that Guardian is entitled to reimbursement for the period November 2006 through ESY 2007. The ALJ found RLC to be appropriate for summer placement, and was designed to provide educational benefit during the summer months when school is not in session. Therefore, the Administrative Law Judge found that Student is entitled to reimbursement for the period of November 2006 through ESY 2007, in the amount of $7190 plus mileage.

However, the ALJ found RLC was not an appropriate full-time placement for Student because it did not meet all of Student's educational needs, including needs for peer interaction and social skills development that cannot be addressed at RLC. Therefore, the ALJ determined that full reimbursement for RLC expenses during the full-time school year was not appropriate. However, because of the failure of the District to include GE time in the offer of placement for the 2007-2008 school year and otherwise include an explanation about why an SDC was appropriate when Student had previously been in the GE full time, the ALJ awarded Guardian an additional reimbursement for one semester of the 2007-2008 school year while at RLC, in the amount of $15,389.58, plus mileage. In all, the ALJ awarded Guardian $22,579.58 for RLC services and $1689.53 for mileage, for a total award of $24,269.11.

Standard of Review

A district court reviews the decision of the hearing officer in an administrative proceeding under a modified de novo standard. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-73 (9th Cir. 1993). The Court must give due weight to the administrative proceedings, particularly where the administrative decision was "careful, impartial and sensitive to the complexities presented." Id. at 1476; see also Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.1994). However, the district court is free to accept or reject the findings of the hearing officer as a whole or in part. County of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th Cir.1996).

Conclusions of Law

The Court finds that the proceedings and decision of the Administrative Law Judge in this matter were thorough, impartial, and sensitive to the complex issues presented in this case. The decision of the ALJ gives an exhaustive background and proceeds through each issue with an analysis of the evidence presented on each side, an analysis of its credibility, and a well-reasoned conclusion on each of the challenged issues. The Court notes that the ALJ was present for the testimony of each of the witnesses, and therefore is a better judge of credibility than this Court. Therefore, the Court will give substantial weight to the factual findings of the Administrative Law Judge.

The Administrative Law Judge found some violations of FAPE, and awarded Guardian partial reimbursement of out of pocket payments made to RLC. The awarded reimbursement corresponds to payments made during the 2006-2007 school year, including ESY 2007, for the FAPE violations during that time. The ALJ permitted this reimbursement because RLC was an appropriate placement for Student during this time.

The ALJ noted that placement at RLC was not appropriate after this time, which corresponded to the 2007-2008 school year. The ALJ determined that because RLC is a nonpublic agency, rather than a nonpublic school, it was not equipped to provide all the services Student required. Therefore, the ALJ seemed initially inclined to deny reimbursement for this period. However, because the District did not properly document why a placement in SDC was more appropriate than a placement in GE, which constituted a denial of FAPE, the ALJ awarded reimbursement for half of the 2007-2008 school year. This amount was awarded even though the ALJ found that the offer of placement by the District for the 2007-2008 school year was appropriate and did not constitute a FAPE violation.

Guardian challenges the amount awarded because it constitutes approximately half of the amount actually expended for services at RLC. Guardian notes that Student made progress and received educational benefits at RLC, despite the fact that RLC is a nonpublic agency, rather than a nonpublic school.

In Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), the Supreme Court considered the question of whether private school placement by a parent after a FAPE denial by a school district was proper under the IDEA. The Court determined that such placement is proper, even when "the parents choose a private school that is not approved by the State or that does not comply with all the terms of the IDEA." Id. at 11, 114 S.Ct. 361. The Court concluded that placement in a private school is proper "if the education provided by the private school is reasonably calculated to enable the child to receive educational benefits." Id.

Here, the ALJ determined that Student received educational benefits during his enrollment at RLC. Student's IQ increased, and he made progress on his reading comprehension and OT needs. Student also showed improvement in his behavior and anxiety-related problems. In addition, Student had been attending RLC for supplemental services at the time of his placement, and had made progress in his educational and social goals. Therefore, this Court finds that the education provided by RLC was reasonably calculated to enable Student to receive educational benefits.

RLC however, is not a properly certified nonpublic school. Rather, RLC is a nonpublic agency which is designed to provide supplemental services in addition to enrollment in a full-time school. RLC is not equipped to meet all of Student's needs. On the basis of this distinction between a nonpublic school and nonpublic agency, the ALJ determined that placement at RLC was not proper.

It is unclear whether this distinction between a nonpublic school and a nonpublic agency is material for a determination of reimbursement under the IDEA. This Court disagrees with the importance of this distinction made by the ALJ. While it is true that Florence County Sch. Dist. Four v. Carter and the other cases which consider this issue consider placement within nonpublic schools, the cases have found that educational benefit is the proper standard for placement, not State requirements or the strict guidelines of the IDEA. The Court in Carter, for example, noted that "[n]or do we believe that reimbursement is necessarily barred by a private school's failure to meet state education standards." Although reference is made to a private "school," the idea that proper placement is determined by educational benefit to the student rather than by adherence to strict standards is clear. Likewise, in Carter v. Florence County School District, 950 F.2d 156 (4th Cir. 1991), the court noted that several courts "have allowed reimbursement despite the absence of state approval of the private school chosen by the parents." Id. at 163. Rather, "when a public school system has defaulted on its obligations under the Act, a private school placement is proper under the Act if the education provided by the private school is reasonably calculated to enable the child to receive educational benefits." Id. Therefore, the yardstick by which to determine whether reimbursement is proper is whether the placement affords the student educational benefits.

Here, it seems clear that student received educational benefits from the services he obtained at RLC. While the District argues that this distinction between a nonpublic school and nonpublic agency should prevent reimbursement, the Court is not referred to authority for this proposition, nor are reasons given for such a distinction. Therefore, the Court is not persuaded that the distinction between a nonpublic school and a nonpublic agency is material to reimbursement in light of the facts of this case and the purposes of the IDEA. Accordingly this Court finds that the Guardian should be reimbursed for the full amount claimed for services provided by RLC to Student.

IT IS SO ORDERED.