L.B. v. Kyrene Elementary District No. 28

          ORDER

          HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE

         This is an appeal for judicial review of a final administrative decision of the Arizona Office of Administrative Hearings (“OAH”) under the Individual with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). (Doc. 1 ¶ 1, “Complaint”). L.B. (“Parent”) brings this case on behalf of her child, J.B. She alleges that J.B. is a student with behavior disabilities and Kyrene Elementary District No. 28 (the “District”) failed to provide him with a Free Appropriate Public Education (“FAPE”) as required by IDEA. Parent filed an Opening Memorandum. (Doc. 34, “Op.”). The District filed an Answering Brief (Doc. 35, “Ans.”), to which Parent replied (Doc. 36, “Reply”). The Court previously granted Parent's motion to consider additional evidence. (Doc. 23).

         I. Background

         J.B. was a student in the District. Parent alleges he has complex disabilities including reactive attachment disorder, fetal alcohol syndrome, Klinefelter's syndrome, intellectual disability, attention deficit hyperactivity disorder, dyslexia, and dysgraphia. (Complaint ¶ 6). She alleges the District did not provide sufficient services to J.B., thus denying him FAPE. An Administrative Law Judge (“ALJ”) at the OAH held a hearing over nine days between November 4, 2015, and January 11, 2016. On August 22, 2017, the ALJ issued a decision (IR 325, “ALJ Decision”) in favor of the District.

         Because the review of this case is fact-intensive and Parent is appealing multiple issues from the OAH decision, the Court will discuss the relevant facts of the case in conjunction with each issue. The opening brief lists the following issues:

1. The District denied J.B. FAPE when it refused to complete evaluations or offer FAPE on December 19, 2013 and after until J.B. re-enrolled in the District;

2. The District's October 2, 2013 decision to not change J.B.'s Individual Education Program (“IEP”) denied him FAPE;

3. The District denied J.B. FAPE by failing to conduct necessary evaluations; and

4. The District denied J.B. FAPE by failing to provide Parent with all of J.B.'s education records.

         Parent also alleges she should be reimbursed for J.B.'s private educational placements. The Court will take each issue in turn.^[1]

         II. Legal Standard

         Under IDEA, an aggrieved party may bring a civil action in federal district court after receiving the final decision of an ALJ. 20 U.S.C. § 1415(i)(2)(A). The moving party bears the burden of proving the ALJ's decision was not met by a preponderance of the evidence. Clyde K. v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994). The district court “shall receive the records of the administrative proceedings, ” “shall hear additional evidence at the request of a party, ” and “basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C).

         Parent contends the Court must review the ALJ's findings, conclusions, and decision de novo. (Op. at 2). In a judicial proceeding under IDEA, a reviewing court is required to conduct a modified de novo review. M.L. v. Fed. Way Sch. Dist., 341 F.3d 1052, 1061 (9th Cir. 2003). The Court reviews de novo the question whether a school district's proposed IEP provided a FAPE under IDEA. Timothy O. v. Paso Robles Unified Sch. Dist., No. 14-55800, 2016 WL 2957215, at *9 (9th Cir. May 23, 2016). Mixed questions of law and fact are reviewed de novo, unless the question is primarily factual. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). Courts must not “substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). However, it is a matter of district court discretion to decide the degree of deference to give to the ALJ's determination. Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1474 (9th Cir. 1993). In reviewing the administrative record as a whole, courts may accept the conclusions of the ALJ that are supported by the record and reject those that are not. Fed. Way, 341 F.3d at 1061-62.

         IDEA does not require school districts to provide the “best” education. J.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010). It merely sets a “basic floor of opportunity.” Id. The District “must provide Student a FAPE that is ‘appropriately designed and implemented so as to convey' Student with a ‘meaningful benefit.'” Id. at 432-33 (quoting Adams v. State of Or., 195 F.3d 1141, 1149 (9th Cir. 1999)). IDEA also “does not require a district to comply with every parent request.” K.S. v. Fremont Unified Sch. Dist., 545 F.Supp.2d 995, 1009 (N.D. Cal. 2008). The District must, however, “seriously consider the parents' concerns, and when there is no agreement, provide the parent with the opportunity to challenge the IEP at a due process hearing.” Id.

         III. Analysis

         The ALJ Decision is a 130-page order setting forth the witnesses, evidence, and issues at the hearing along with detailed findings of fact. The ALJ states she considered the entire record, including all the testimony and every exhibit. (ALJ Decision at 10 n.28). Because the Court finds the ALJ was thorough and careful in her findings, the Court concludes they are entitled to significant weight. JG v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008). The Court will consider the issues in the order that Parent briefed them.

         1. Did the District deny J.B. FAPE by not completing evaluations or offering FAPE after December 19, 2013, unless J.B. re-enrolled in the District?

         The ALJ ruled that the District did not have IDEA obligations after J.B.'s October 14, 2013 withdrawal from the District and that Parent failed to plead the District was required re-evaluate and re-offer FAPE after December 19, 2013. (ALJ Decision at 103- 06, 124-25). Parent argues this was error, as the Local Education Agency (“LEA”) where a child resides is responsible for providing FAPE to the child and she properly pleaded this issue below. Alternatively, if the Court concludes the claim was not properly raised below, Parent argues the Court should still consider the claim because it is an issue of law and the record is fully developed.

         a. Background

         On September 19, 2013, Parent provided the District 10-day notice of her intent to enroll J.B. in a private placement. (IR 277). In a prior written notice (“PWN”) dated October 4, 2013, the District offered to pay for Parent's desired private placement for the second quarter of the school year with the plan to transition J.B. back to the District by January 6, 2014. (IR 287). “[J.B.] was withdrawn from [the District] and parentally placed at [private placement] on October 15, 2013.” (IR 291).

         While J.B. was in this private placement, Parent and the District continued discussions to transition J.B. back to a District school. Parent requested speech and occupational therapy services on November 4, 2013, which the District made available at one of its elementary schools. (IR 291). On December 3, 2013, the District met with Parent to review a speech language evaluation. (IR 147). There were also many emails between various officials at the District and Parent. (IR 207). District personnel even visited J.B. at the private placement, which Parent argued “traumatized” J.B. (IR 85 at 26). On December 19, 2013, the District held a Multidisciplinary Evaluation Team (“MET”) meeting attended by Parent, officials from the District, and officials from the private placement. (IR 303). After that meeting, the District issued a final PWN.

         The District's final PWN on December 19, 2013, noted that J.B. was no longer enrolled in the District and Parent had rejected a written agreement meant to transition J.B. from a private parental placement back into a District school. (IR 303 at 15). Instead of accepting the District's plan to transition J.B. from a private placement back to a District school, Parent offered a different plan, which the District refused. (IR 303 at 15; see IR 241). The PWN further noted the District's attempts to evaluate J.B. at the private placement were rejected by Parent because she believed it would be too traumatic for J.B. (IR 303). Parent proposed other methods of evaluation that the District thought would be unsuccessful. The PWN concluded with, “As [J.B.] is not currently a student enrolled in Kyrene School District, no further [Multidisciplinary Evaluation Team/Individual Education Plan] meetings will take place. Should [L.B.] choose to enroll [J.B.] as a student in Kyrene, we are ready[, ] willing[, ] and able to implement his [Individual Education Plan] as written and proceed with the evaluation process.” (Id.).

         The ALJ's Decision substantiated the District's characterization of failed attempts to evaluate J.B. She noted, “Parent was ‘adamant' that she did not want any observations by [the District] at [the private placement] and she specified, in writing, that she would not allow any testing at that time.” (ALJ Decision at 107; see also ALJ Decision at 98 n.290). In the findings of fact, the ALJ found no indication Parent agreed to evaluations after the December 19 PWN. (ALJ Decision at 98 n.290). The record also contains multiple instances of the District attempting to accommodate J.B. after his withdrawal. (See IR 241, 291, 299, 303). Parent alleges the ALJ's conclusions are contrary to the record, and she was willing to allow evaluations, but at a slower pace than the District wanted and under different circumstances, such as by video, in an effort to prevent J.B. from being traumatized by the presence of District personnel. (IR 241).

         b. Whether Parent ...