Opinion
Case No. 2:22-cv-02717-HDV-MARx
2023-12-21
J.R. (a minor, BY AND THROUGH his mother, Mary PEREZ), Plaintiff, v. VENTURA UNIFIED SCHOOL DISTRICT, Defendant.
Andrea M. Marcus, Santa Barbara, CA, for Plaintiff. David R. Mishook, Fagen Friedman and Fulfrost LLP, Oakland, CA, for Defendant.
Andrea M. Marcus, Santa Barbara, CA, for Plaintiff. David R. Mishook, Fagen Friedman and Fulfrost LLP, Oakland, CA, for Defendant. ORDER ON ADMINISTRATIVE APPEAL [51-1; 62] Hernán D. Vera, United States District Judge
I. INTRODUCTION
The Individuals with Disabilities in Education Act ("IDEA") seeks "to ensure that all children with disabilities have available to them a free and appropriate public education and related services to meet their unique needs[.]" 20 U.S.C. § 1400(d)(1)(A). At the time of the underlying hearing in this matter, J.R. was a fifteen-year-old who never surpassed reading at a kindergarten to second-grade level during the nine years that Ventura Unified School District had identified him as a student with a disability under the IDEA. It was not until he was privately assessed in 2021 that J.R. was diagnosed with autism based on a myriad of symptoms that were known to the district since 2012 and documented by at least four different school psychologists. In assessing this evidence, the Administrative Law Judge found a majority of J.R.'s claims were time-barred because his parents should have known he had been improperly diagnosed and yet, on the same record, found that the school's professionals did not suspect J.R.'s true disabilities. On this basis, the Administrative Law Judge granted remedies that fell severely short of both the letter and the spirit of the IDEA.
See, e.g., Certified Administrative Record [Dkt. 25-14] at 325, 376, 389.
Id. at 331.
Id. at 332-354.
Id. at 414.
J.R. seeks partial review of the administrative due process decision. The principal issue on appeal is whether his claims are in fact limited to those that accrued after 2019. As discussed more thoroughly below, the Court finds that under the standard announced in Avila v. Spokane Sch. Dist. 81, 852 F.3d 936 (9th Cir. 2017), J.R.'s pre-2019 claims are timely. The Court also finds that J.R.'s educational record is rife with evidence demonstrating symptoms of autism and pragmatic learning difficulties. The Court therefore concludes, applying the principles laid out in Timothy O. v. Paso Robles Unified School Dist., 822 F.3d 1105 (9th Cir. 2016), that the district's utter failure to assess J.R. for those disabilities denied J.R. a free and appropriate public education beginning in 2012.
II. BACKGROUND
A. Statutory Background
This matter involves claims under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. "The IDEA provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedures." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993). The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education and related services designed to meet their unique needs[.]" 20 U.S.C. § 1400(d)(1)(A). A free and appropriate education ("FAPE") is defined as "an education that is provided at public expense, meets the standards of the state educational agency, and is in conformity with the student's [individualized education program]." Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1184 (9th Cir. 2016) (citing 20 U.S.C. § 1401(9)).
Upon request of a parent or agency, a local educational agency must "conduct a full and individual initial evaluation" to determine whether a child has a disability and to identify the educational needs of such child. 20 U.S.C. § 1414(a)(1)(A)-(C). If a child is determined to have a disability, a team including a local educational agency representative, teachers, parents, and whenever appropriate, the child, formulates an individualized education program ("IEP" or "IEP team"). § 1414(d)(1)(B). The local educational agency must conduct a reevaluation of the child if it "determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation," or if a reevaluation is requested by the child's parents or teacher. § 1414(a)(2)(A).
A school district "must comply both procedurally and substantively with the IDEA." M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th Cir. 2005) (citing Bd. Of Edu. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). "A school district denies a child a free appropriate public education by violating the IDEA's substantive requirements when it offers a child an IEP that is not reasonably calculated to enable the child to receive educational benefits." Timothy O. v. Paso Robles Unified School Dist., 822 F.3d 1105, 1118 (9th Cir. 2016) (citing J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 432-33 (9th Cir. 2010)). "The school district may also, however, deny the child a free appropriate education by failing to comply with the IDEA's extensive and carefully crafted procedures." Timothy O., 822 F.3d at 1118 (citing Doug C. v. Hawaii Dep't of Edu., 720 F.3d 1038, 1043 (9th Cir. 2013)). "While some procedural violations can be harmless, procedural violations that substantially interfere with the parents' opportunity to participate in the IEP formulation process, result in the loss of educational opportunity, or actually cause a deprivation of educational benefits 'clearly result in the denial of a [free appropriate public education.]' " Timothy O., 822 F.3d at 1118 (quoting Amanda J. ex rel. Annette J. v. Clark County School Dist., 267 F.3d 877, 892 (9th Cir. 2001)).
The IDEA permits parents and school districts to file due process complaints "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child[.]" 20 U.S.C. § 1415(b)(6)(A). The state educational agency or local educational agency hears due process complaints in administrative due process hearings. § 1415(f)(1)(A). If a party disagrees with the administrative findings and decision, judicial review in state and federal courts is available. § 1415(i)(2)(A).
Unless otherwise indicated, the following factual background is derived from the Certified Administrative Record ("CAR"), which the parties filed as twenty consecutive attachments [Dkts. 25-1-25-20]. The CAR totals 4,537 pages and its Table of Contents refers to this consecutive pagination spanning ten volumes. Each of the twenty attachments also has their own pagination at the top-right corner of the page. For clarity, the Court's citations refer to this latter sequencing. For example, the ALJ's Decision starts on page 320 of the fourteenth attachment ("CAR 14") [Dkt. 25-14]. The Court cites to CAR 14 at 320.
Plaintiff J.R. ("J.R." or "Plaintiff"), by and through his mother and guardian ad litem Mary Perez ("Perez" or "Parents"), seeks partial review of a due process decision rendered by the California Office of Administrative Hearings ("OAH"). Complaint ("Compl.") ¶¶ 1, 5 [Dkt. 1]. Defendant is Ventura Unified School District ("VUSD"). Compl. ¶ 6. At the time of the OAH hearing in 2021, J.R. was a fifteen-year-old student in the tenth grade who had recently been diagnosed with autism and pragmatic learning difficulties. CAR 14 at 325, 334. VUSD had identified J.R. as a student with a disability under the IDEA since May 2012, when he was six years old, and he was eligible for special education under the primary category of specific learning disability and the secondary category of speech impediment. Id. at 325. During that nine-year period, VUSD school psychologists conducted four psychoeducational assessments—an initial assessment in 2012, and subsequent triennial assessments in 2015, 2018 and 2021—and J.R.'s IEP team routinely met with Parents to share the assessment results and provide goals and services for the school year. VUSD never formally assessed J.R. for autism or pragmatic learning difficulties.
J.R. brings this action through his mother, Mary Perez, and brought his initial OAH due process complaint through his parents, Mary Perez and Francisco Rivera. Here, "Parents" is used to refer to Mary Perez, individually, and/or Mary Perez and Francisco Rivera, collectively.
The Court refers to "autism" as a disability based on the criteria set forth in the IDEA. See 34 C.F.R. § 300.8(c)(1).
Between 2012 and October 1, 2021, J.R. and his family resided within Ventura's geographic bounds. CAR 14 at 325. In October 2021, J.R. and his family moved to Texas. Id. At all times relevant to this factual background, J.R. was a student of the Ventura Unified School District.
1. VUSD's Psychoeducational Assessments
In 2012, VUSD school psychologist Roxana Llano ("Llano") conducted J.R.'s initial special education psychoeducational assessment when he was a kindergartner at Will Rogers Elementary School. Id. at 332. Llano conducted standardized behavior and functional skills assessments. Id. at 333. The results were summarized in Llano's May 2012 psychoeducational report, which documented the following: "clinically significant" behavior ratings in hyperactivity, attention and atypicality; cognitive functioning in the delayed range, with significant weakness in auditory processing and adaptive functioning; lower-extreme to below-average academic ranges; and teachers' concerns about "inattentiveness, restlessness, immaturity, difficulty following directions, and frequent redirection and clarification for performing tasks." Id. at 333-34; see also CAR 2 at 193-98 [Dkt. 25-2]. Llano concluded that J.R. demonstrated a specific learning disability as a result of an auditory processing disorder and not attention deficit hyperactivity disorder ("ADHD"). CAR 14 at 334; CAR 2 at 198. These results were shared with Parents at J.R.'s May 2012 IEP meeting. CAR 14 at 334; CAR 2 at 178-191. VUSD did not assess for autism nor was this possibility raised or discussed with Parents. CAR 14 at 335.
At J.R.'s 2013 and 2014 IEPs, his behavioral and academic functioning were similar. In 2013, he "spoke loudly and had difficulties following directions, understanding verbal information, asking questions, retrieving vocabulary, retelling experiences, taking turns during conversation and with peers." Id. at 336. In 2014, he "blurted inappropriate sounds and words during academic instruction" and staff reported "disruptive behaviors such as inappropriate comments, yelling, getting out of seat, and inappropriately moving around during academic instruction." Id. VUSD provided a behavior support plan. Id. The district's records show that autism was not considered. Id.; see also CAR 3 at 17-60, 70-81 [Dkt. 25-3].
In 2015, VUSD school psychologist Katherine Beley ("Beley") conducted a psychoeducational assessment of J.R. as part of his 2015 triennial assessments, when he was a third grader at Blanche Reynolds Elementary School. CAR 14 at 337. Beley conducted standardized assessments, which were summarized in her March 2015 psychoeducational report. Id.; see also CAR 3 at 85-93. Beley considered specific learning disabilities, intellectual disability, and speech and language impairment, but rejected intellectual disability due to J.R.'s adaptive abilities. CAR 14 at 337-38; CAR 3 at 93. Again, VUSD did not assess for autism. CAR 14 at 337-38; CAR 3 at 85-93. J.R.'s 2015 IEP team removed his behavior support plan and did not discuss autism. Id. at 338; CAR 4 at 24-36 [Dkt. 25-4]. J.R.'s 2016 and 2017 IEP teams shared progress in speech, vocabulary and reading comprehension, as well as improved behavior staying on task and engaging with peers and teachers. CAR 14 at 339; CAR 4 at 38-48, 53-65.
In 2018, VUSD school psychologist Jana Woodruff ("Woodruff") conducted a psychoeducational assessment of J.R. as part of his 2018 triennial assessments, when he was a sixth grader at DATA Middle School. CAR 14 at 339. As with previous assessments, Woodruff conducted standardized tests, considered parental reports and teachers' concerns, and summarized her findings in her February 2018 report. Id. at 340; see also CAR 6 at 21-45 [Dkt 25-6]. Teachers reported inappropriate behaviors when J.R. did not understand a concept. CAR 14 at 340. Woodruff summarily concluded that autism was not an area of suspected disability and, as a result, VUSD did not assess J.R. for autism. Id. at 340-41; CAR 6 at 41. J.R.'s March 2018 IEP team discussed the following: average cognitive function; below-average auditory and oral language skills; low scores in communication/language standardized assessment; and immaturity. CAR 14 at 341-42. J.R.'s IEP team met in August 2018 and January 2019. CAR 7 at 16-19; 35-44 [Dkt. 25-7]. Both times, Perez requested more support. CAR 7 at 17, 40. J.R.'s February 5, 2019 IEP reported the following: immaturity; significant academic deficits; difficulty keeping up with the class; playing with supplies and objects; and failure to comply with teachers' requests to perform tasks. CAR 14 at 342; CAR 7 at 49-60. J.R.'s 2020 IEP discussed that he required prompting and on-on-one assistance and did not turn in work. CAR 14 at 366; CAR 8 at 32-41 [Dkt. 25-8].
In February 2021, VUSD school psychologist Kaylee Peterson ("Peterson") assessed J.R. for his triennial assessment, when he was a ninth grader at Ventura High School. CAR 14 at 363. Again, Peterson administered standardized tests, observed J.R., and "concluded that autism was not a suspected disability." Id.; see also CAR 12 at 39-65 [Dkt. 25-12]. Peterson concluded that J.R.'s verbal/nonverbal communication difficulties related to deficits consistent with a specific learning disability. CAR 14 at 363-64; CAR 12 at 65. Most significantly, Peterson did not administer standardized assessments for autism or pragmatic language. CAR 14 at 368. J.R.'s February 2021 IEP team concluded J.R. continued to be eligible for special education under the primary category of specific learning disability, and the secondary category of speech and language impairment. Id.; CAR 12 at 16-35.
C. The 2021 Due Process Action
J.R., through Parents, filed a special education due process complaint against VUSD on April 8, 2021 and an amended complaint on August 10, 2021. CAR 14 at 320. J.R. alleged that: (1) VUSD failed to assess in all areas of suspected disability beginning in 2012; (2) VUSD prevented Parents from being able to participate in informed decision-making regarding his education, by withholding the fact that J.R. was suspected of having and/or demonstrated symptoms of autism and related disabilities, since 2012; (3) VUSD prevented Parents from being able to participate in informed decision-making regarding his education by asserting (falsely) that it had assessed him in all areas of suspected disability, inclusive of autism eligibility, since 2012; (4) VUSD failed to offer J.R. an IEP reasonably calculated to render him educational benefit; and (5) VUSD failed to implement the IEP he did have, during distance learning due to the COVID-19 pandemic. Compl. ¶ 8; see also CAR 14 at 321-23.
Administrative Law Judge, Sabrina Kong ("the ALJ"), held a fourteen-day hearing in October and November 2021. CAR 14 at 320. Numerous witnesses testified, including Perez and VUSD school psychologists Llano, Beley, Woodruff and Peterson, as well as Plaintiff's clinical psychology expert Betty Jo Freeman ("Freeman") and Plaintiff's speech and language expert Karen Schnee ("Schnee"). Freeman had assessed J.R. in June 2021 and diagnosed him with autism. Id. at 331. Schnee also assessed J.R. and determined that, in addition to meeting the special education eligibility for speech and language impairment, J.R. suffered from pragmatic language deficits. Id. at 378-79. Freeman and Schnee opined at the hearing that VUSD should have suspected J.R.'s autism and pragmatic language deficits based on his "verbal/nonverbal deficits, and social immaturity which [VUSD] documented in each triennial assessment report, and IEP from 2012 to 2019." Id. at 331; see also id. at 363, 378.
The ALJ issued her decision on January 24, 2022 (the "Decision"). Id. at 320-416. Procedurally, the ALJ concluded that the applicable two-year statute of limitations was not tolled and, thus, J.R's claims were limited to those that accrued after April 8, 2019. Id. at 326. The ALJ then made three central substantive findings. First, the ALJ found VUSD did not suspect that J.R. had autism but, instead, suspected a specific learning disability and speech and language impairment. See, e.g., id. at 335. Second, the ALJ found that Parents knew or should have known that VUSD failed to assess for autism in 2012, 2015, and 2018. Id. 332-342. In making that determination, the ALJ found Parents' unfamiliarity with autism was immaterial, since Parents knew "the underlying facts that would support a legal claim." Id. at 351-52. Finally, the ALJ found that VUSD did not specifically mispresent that it had assessed for autism, based on its previous finding that VUSD did not suspect autism. Id. at 343-353. However, the ALJ found that VUSD did fail to provide J.R. a FAPE beginning April 8, 2019 because it did not assess for autism and pragmatic language deficits. Id. at 358-370. The ALJ held VUSD failed to offer appropriate goals and services in 2020 and 2021. Id. at 373-391. The ALJ also held that VUSD failed to implement J.R.'s IEP during the COVID-19 school closure. Id. at 399-405.
The ALJ also found that VUSD did not fail to assess for ADHD, based on Freeman's testimony that she agreed J.R. did not display ADHD characteristics. CAR 14 at 371-372.
The Court summarizes the ALJ's factual and legal findings in more detail below.
1. The ALJ's Findings Regarding Parents' Knowledge
The ALJ's analysis of the statute of limitations is thirty-two pages long. Id. at 326-358. The section discusses the ALJ's findings that the district did not suspect autism and, therefore, did not make misrepresentations or withhold information from Parents. For many of the same reasons, the ALJ found Parents should have suspected autism. In relevant part, the ALJ made the following findings.
First, the ALJ found that Llano's May 2012 assessment and the 2012, 2013 and 2014 IEPs provided Parents with the requisite knowledge to file their due process complaint. Id. at 332-36. The ALJ relied on the fact that Parents consented to assessment in all education areas proposed by VUSD. Id. at 333. The ALJ noted that Lano observed J.R. in class, interviewed Parents and teachers, and conducted standardized assessments. Id. Parents reported J.R. met normal developmental milestones and had a family history of learning disabilities. Id. Teachers reported J.R. was inattentive, immature, and needed frequent redirection to perform tasks. Id. Several of J.R.'s functional skills were rated in the "at-risk" range and his social, emotional and behavioral function was rated in the "clinically significant" range as to hyperactivity, attention problems, and atypicality. Id. J.R. scored in the lower-extreme to below-average range academically. Id. Llano determined that J.R. suffered from delayed cognitive function and significantly weak auditory processing and adaptive function. Id. at 334. Llano concluded that J.R. qualified for special education under specific learning disability based on a significant discrepancy between his intellectual ability and achievement in basic reading skills, and a processing deficit in his auditory processing skills. Id. At the May 2012 IEP team meeting, VUSD shared these results and discussed J.R.'s below-average cognitive function, communication and pragmatic deficits, and immaturity. Id. at 334-35. VUSD gave Parents a copy of their procedural safeguards. Id. at 334.
In signing J.R.'s Assessment Plan, Parents consented to assessment in the following areas: pre-academic/academic achievement; social/emotional behavior; self-help/adaptive skills; motor skills development; language/speech/communication development; intellectual development; health; and occupational therapy. CAR 14 at 333; see also CAR 2 at 174. Notably, this means VUSD proposed, and Parents allowed, that J.R. be assessed in all but one education area (vocational/prevocational).
"A teacher rated Student's functional communication, conduct problems, adaptability, withdrawal, social skills, study skills and leadership skills in the at-risk range." CAR 14 at 33.
Specifically, the ALJ noted the following details from the May 2012 IEP document:
1. Student had below average cognitive function, and severely delayed syntax, morphology, and pragmatic language skills. His communication weaknesses interfered with his academic access. Student's pragmatic deficits such as topic maintenance, and awareness of social settings and personal space, impact communications.CAR 14 at 335.
2. Student had difficulties with repetitive and expressive vocabulary, concept comprehension, following directions, intelligibility, turn taking, and voice intensity.
3. Student had social emotional and behavior function difficulties. He lacked maturity compared to peers, had difficulty interacting with others, and tended to play by himself.
J.R.'s 2013 and 2014 IEPs documented the same cognitive and communication deficits as those in 2012. Id. at 336. The IEPs also documented several "non-compliant" and "disruptive" behaviors, for which VUSD provided a behavior support/intervention plan. Id. These behaviors included J.R. teasing peers, exposing his bare stomach to others, and blurting inappropriate sounds and words. Id. J.R. spoke loudly and struggled following directions, understanding verbal information, and taking turns. Id. The ALJ concluded this information "put Parents on notice of Ventura's findings and conclusions and provided them with all the information they needed to timely file for due process if they disagreed with Ventura." Id.
"The March 2, 2013 IEP reported that Student had below-average cognitive function and severely delayed syntax, morphology, and pragmatic language skills." CAR 14 at 336. "The March 25, 2014 IEP reported similar behaviors and functions as the March 2, 2013 IEP." Id.
Next, the ALJ found Beley's March 2015 assessment and the 2015, 2016 and 2017 IEPs also provided Parents with notice to file their complaint. Id. at 337-39. The ALJ provided the exact same reasons as those already discussed. Again, Parents consented to assessment in all areas proposed by VUSD. Id. at 337. With the exception of occupational therapy, which was not assessed in 2015, these were the same education areas as those assessed in 2012. Id.; see also CAR 3 at 83. Beley interviewed Perez and J.R.'s teacher, who did not report maladaptive behaviors. CAR 14 at 337. J.R. scored low on most cognitive assessments and Beley recommended that the IEP team consider specific learning disability, intellectual disability, and speech and language impairment as special educational disabilities. Id. at 337-38. Beley concluded, however, that J.R.'s average scores in several adaptive areas disqualified him for intellectual disability. Id. at 338. VUSD shared these findings with Parents at the March 2015 IEP team meeting and documented J.R.'s difficulty with verbal expression, memory for auditory and visual stimuli, and impulse control. Id. J.R.'s behavior intervention plan was removed because he no longer exhibited the same maladaptive behaviors. Id. J.R.'s 2016 and 2017 IEPs documented low cognitive function and difficulty with memory for auditory and visual stimuli. Id. at 339. The report stated J.R. made progress in speech, vocabulary, and reading comprehension, as well as staying on task and conversing with peers and adults. Id. Again, the ALJ concluded this information "put Parents on notice of Ventura's findings/conclusions" such that they should have timely filed their complaint "if they disagreed with Ventura." Id.
The ALJ then found that Jana Woodruff's February 2018 assessment and the 2018 and 2019 IEPs put Parents on notice. Id. at 339-342. Again, the ALJ provided the same reasons. Parents consented to Woodruff's assessment in the same areas. Id. at 339-340. Based on similar methods as the previous assessments, Woodruff's report documented that J.R. was typically behind academically, required individual assistance for task completion, and exhibited inappropriate behaviors such as "singing age-inappropriate songs in class, annoying peers by making noises that included simulating flatulent sounds and creating sound effects during instruction time, and attempting to cut his hand twice during science class to see the flesh while studying the human body." Id. at 340. Surprisingly, Woodruff concluded autism was not a suspected disability because J.R. "did not have a development disability significantly affecting verbal and nonverbal communications and social interaction[,]" did not exhibit sensory-or movement-seeking behaviors, and demonstrated normal pragmatic communications. Id. at 340-41. The ALJ found, "Parents and teacher's responses on standardized rating scales, Parent's responses as to Student's home behaviors and developmental history, and Woodruff's 2018 observations of Student led Ventura not to suspect autism as a disability." Id. VUSD shared the assessments with Parents at the March 2018 IEP meeting which reported that J.R's cognitive function was "average" but he continued to score low in auditory, oral language, and communication skills, and continued to demonstrate a general sese of immaturity. Id. at 342. J.R.'s February 5, 2019 IEP again reported immaturity and significant academic deficits, as well as unusual behavior such as playing with objects. Id. at 342. J.R. complained that academic material was too difficult and he did not comply with teachers' requests to perform tasks. Id. Based on these findings, the ALJ concluded that Parents knew or should have known the facts that enabled them to timely file their complaint. Id.
Specifically, the ALJ noted the following from Woodruff's conclusion:
1. Student did not have a developmental disability significantly affecting verbal and nonverbal communications and social interaction.CAR 14 at 341.
2. Student did not exhibit unusual responses to sensory experiences; movement seeking behaviors; self-stimulatory behaviors; or fearful response to sound or touch; and did not play with his visual field.
3. Student [sic] demonstrated normal development in pragmatic communications based on Mother's and teachers' ratings on the behavior and functional rating scales.
The March 2018 IEP document specifically noted:
1. Student's cognitive function was in the average range. Student functioned below average in auditory and oral language skills. Student scored low in communication/language standardized assessment, showing relative [sic] strength with his vocabulary.CAR 14 at 342.
2. Student liked to socialize with friends during break and lunch, but was reported as immature, or a "young" sixth grader, sometimes singing in the middle of class.
3. Student had same aged friends and was generally liked by teachers and peers.
The next ten pages of the Decision describes the ALJ's finding that VUSD did not misrepresent or withheld information regarding autism. Id. at 343-353. The ALJ made the same findings, nearly verbatim, regarding the 2012, 2015 and 2018 assessments, and repeated many of the aforementioned findings. Based on standardized rating scales, Parents' responses as to J.R.'s home behaviors and developmental history, and the school psychologists' assessments, the ALJ found that VUSD did not suspect that J.R. had autism and, therefore, did not assess for autism nor represent to Parents that it had done so. Id. at 343, 346-47, 349. The assessment plans enumerated the areas that VUSD would assess and did not include autism. Id. at 343, 347, 349.
The ALJ then found VUSD did not make specific misrepresentations nor withhold information regarding the implementation of J.R.'s February 14, 2017 IEP (Issues 5b and 6) or regarding goals and services in his February 5, 2019 IEP (Issues 2a and 3a). CAR 14 at 354-58.
The ALJ found VUSD's obligation to assess in all areas of suspected disability did not amount to a specific representation that it would assess for autism. Id. at 343-44, 347, 349. The ALJ further found that VUSD did not withhold information that it was required to provide because it shared the assessment findings with Parents. Id. at 344-45, 347-48, 350. The ALJ also noted that Parents advocated on J.R.'s behalf and participated in the IEP meetings, where there was no mention of autism until 2018. Id. at 344, 347, 349-350. The ALJ found Woodruff's 2018 explanation as to why autism was not a suspected disability additionally put Parents on notice that VUSD never assessed for autism. Id. at 349-350. Finally, the ALJ found that the information upon which Freeman's 2021 diagnosis and expert opinion was based, was available to Parents since 2012. Id. at 345, 348, 351.
2. The ALJ's Findings on VUSD Liability
In her Decision, the ALJ repeatedly stated that, as a matter of fact, VUSD did not "suspect" that J.R. had autism in 2012, 2015, or 2018. See, e.g., CAR 14 at 343. Because she found the pre-2019 claims were time-barred, the ALJ did not elaborate on that finding or perform an analysis under Timothy O. with respect to those pre-2019 claims, although she did apply the Timothy O. standard in concluding that VUSD failed to assess J.R. for autism beginning April 8, 2019. Id. at 358-371. In making that determination, the ALJ considered the following evidence.
Woodruff and Peterson administered J.R.'s triennial assessments in 2018 and 2021, respectively, and neither assessed for autism or pragmatic language. Id. at 363. They found that J.R.'s behaviors and social interactions did not affect his educational performance and concluded that, while J.R. exhibited verbal/nonverbal communication difficulties, those related to processing deficits were consistent with a specific learning disability, not autism. Id. They relied on Parents' reports that J.R. did not have developmental delays, but struggled academically and socially. Id. at 363-64. Freeman and Schnee opined that VUSD should have suspected J.R. had autism and pragmatic learning difficulties based on VUSD's findings in the 2018 triennial assessment. Id. at 363. Woodruff and Peterson opined that, even if they had assessed for autism, J.R. would not have been found eligible under the autism special education category. Id. at 365. The ALJ found this unpersuasive: "The [relevant inquiry] was not whether Ventura should have found Student eligible under a specific eligibility category, autism or otherwise, but whether it should have assessed Student based on the information Ventura had during the April 8, 2019 to August 20, 2021 period." Id. The ALJ found, based on the information VUSD had during that period, it was obligated to assess for autism and pragmatic language. Id. The ALJ discussed her reasoning as follows.
"Specifically, at the time [Woodruff and Peterson] relied on Parent's reports to Ventura in 2018 and February 2021 regarding Student's health, development, and social history that Student: did not have any developmental delays, and was average, or above average, in all developmental milestones; struggled academically in reading and writing; did not understand materials taught; required a lot of one-to-one assistance and prompting work; disliked school; struggled to maintain friendships; and played with others, and preferred to play with same-aged children." CAR 14 at 363-64.
First, the ALJ found that VUSD had a duty to assess J.R. for autism and pragmatic language based on the information in Woodruff's 2018 report and subsequent IEPs. Id. at 365-67. The ALJ found this duty was triggered by J.R.'s classroom difficulties, as documented in the 2018 assessment report and February 5, 2019 and January 16, 2020 IEPs. Id. at 365. With respect to Woodruff's assessment, Freeman and Schnee persuasively opined that J.R.'s verbal and nonverbal difficulties, speech impediment, and unusual behaviors should have notified VUSD to assess for autism and pragmatic language. Id. This included "head patting, finger tapping, and moving his hands back and forth[.]" Id. The 2019 IEP documented that J.R. "had trouble keeping up with class, did not complete required work, complained work was too hard, had a short attention span, was easily distracted, and often played with school supplies and other objects instead of paying attention in class." Id. at 366.
The 2020 IEP documented similar difficulties, focusing on J.R.'s need for prompting and failure to work independently or in large groups. Id. Parents constantly communicated that J.R. was overwhelmed. Id. The ALJ found the combination of this information and J.R.'s continued academic difficulties should have led VUSD to follow up with standardized testing in autism and pragmatic language. Id. at 367. "Instead, Ventura summarily concluded, without standardized testing data, that Student simply lacked motivation when Student was not completing work." Id.
Specialized academic instruction teacher Erica Zahn reported that J.R. required a lot of prompting and one-on-one assistance to complete work in English language arts and English reading and writing; physical education teacher Gary Litton reported that J.R. did not turn in any work; specialized academic instruction teacher Maggie Gaeta also taught J.R. English/language arts, reading, and writing and reported that he rarely turned in work and engaged more when prompted in small group and individualized instruction; Alexander Perry, J.R.'s math teacher, reported that J.R. seldom worked independently, but tried hard. CAR 14 at 366.
The ALJ also found Peterson's 2021 assessment failed to administer the appropriate standardized tests for autism and pragmatic language. Id. at 368-370. Both Peterson and Freeman opined that the Autism Diagnostic Observation Schedule ("ADOS") was the standardized assessment used to measure autism spectrum disorders. Id. at 369. Peterson administered standardized tests, including the Behavioral Assessment Scale for Children ("BASC"), but did not administer the ADOS or any standardized tests in autism or pragmatic language. Id. Peterson also did not observe J.R.'s behaviors and performance in class. Id. Speech pathologist, Aimee May ("May"), administered the speech and language assessments. Id. May administered the Clinical Evaluation of Language Fundamentals ("CELF") standardized assessment. Id. While the CELF has a pragmatic subset, she "inexplicably did not administer that subtest, or any other standardized assessments to evaluate Student's pragmatic language skills." Id. J.R.'s February 2021 IEP team concluded that he continued to be eligible for special education under the primary category of specific learning disability, and the second category of speech and language impairment. Id. Schnee credibly opined that the pragmatic language assessment is a "crucial component to assessing autism" and that if it had been administered the IEP team would have been informed as to J.R.'s social language communication deficits. Id. at 369-370.
The ALJ found that these procedural violations significantly impeded Parents' opportunity to participate in the decision-making process "because [Parents] did not have the necessary information." Id. at 367. This "prevented timely access to complete and necessary information for developing an appropriate IEP[,]" in express violation of Timothy O. Id. at 370. Accordingly, the ALJ found VUSD denied J.R. a FAPE for the time period of April 8, 2019 (when the ALJ found J.R.'s claims were timely) and August 10, 2021 (when J.R. filed his first amended complaint). Id. at 367, 370.
D. Procedural Background
Plaintiff brings this action under the IDEA seeking partial review of the OAH Decision. Plaintiff's Complaint, filed April 23, 2022, asserts two causes of action: (1) violation of the IDEA, 20 U.S.C. § 1400 et. seq., and the California Education Code § 56500 et seq.; and (2) attorneys' fees. Compl. ¶¶ 13-18. Defendant filed its Answer [Dkt. 15] on May 19, 2022. On July 21, 2022, the Court set a bench trial on the administrative record. [Dkt. 21]. On March 3, 2023, the parties stipulated to vacate the trial and have the matter decided on the papers. [Dkt. 41]. The parties filed a Joint Case Management Statement on July 10, 2023, and the Court set a new briefing schedule. [Dkts. 59, 60]. Plaintiff filed his Opening Brief ("Pl.'s Br.") [Dkt. 51-1] on May 19, 2023. Defendant filed its Responding Brief ("Def.'s Br.") [Dkt. 62] on August 4, 2023. Plaintiff filed a Reply ("Reply") [Dkt. 63] on August 21, 2023. On November 15, 2023, the Court held oral argument in lieu of a trial, and took the matter under submission. [Dkt. 68]. III. LEGAL STANDARDS
A district court's review of a hearing officer's IDEA due process determinations "is in substance an appeal from an administrative determination, not a summary judgment." Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995). Nonetheless, the appeal "is properly styled and presented by the parties in a summary judgment format." Id. A court may make a final judgment based on the preponderance of evidence, in what is essentially a bench trial on a stipulated record. Id.; Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). "[T]he 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). "Under 20 U.S.C. § 1415(i)(2)(C), the district court reviews the records of the state due process hearing, hears additional evidence offered by the parties, and then 'basing its decision on the preponderance of the evidence, . . . grant[s] such relief as the court determines appropriate.' Thus, the statute commands the district court to review the evidence and come to its own conclusion about what relief is appropriate." Ashland Sch. Dist. v. Parents of Student E.H., 587 F.3d 1175, 1182 (9th Cir. 2009) (citing Sch. Comm. of Burlington v. Dept. of Edu., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)).
It is implied that due weight shall be given to the due process proceedings. Wartenberg, 59 F.3d at 891. Thus, a court " 'must give deference to the state hearing officer's findings, particularly when . . . they are thorough and careful' . . . and 'avoid substitut[ing] [its] own notions of sound educational policy for those of the school authorities which [it] reviews.' " Parents of Student E.H., 587 F.3d at 1182 (first quoting Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996); then quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)). "The amount of deference accorded the hearing officer's findings increases where they are 'thorough and careful.' " Wartenberg, 59 F.3d at 891 (quoting Smith, 15 F.3d at 1524). This occurs "when the officer participates in the questioning of witnesses and writes a decision 'containing a complete factual background as well as a discrete analysis supporting the ultimate conclusions.' " R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007) (quoting Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006)). "Mixed questions of fact and law are reviewed de novo unless . . . the question is primarily factual." Id. at 937. The district court must consider the findings "carefully and endeavor to respond to the hearing officer's resolution of each material issue," but the court "is free to accept or reject the findings in part or in whole." Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (quoting Town of Burlington v. Dep't of Educ. for the Commonwealth of Mass., 736 F.2d 773, 792 (1st Cir. 1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)).
IV. DISCUSSION
In rendering her Decision, the ALJ questioned witnesses, provided a factual background, and made distinct findings. To the extent that those findings are supported by the record, however, they do not support the ALJ's ultimate conclusion. Specifically, the Decision conflates several issues that require sequential and discrete analysis: (1) applying the Avila standard, did Parents have actual or constructive notice for their claims to accrue; (2) if so, did a statutory exception toll the statute of limitations; and (3) if Plaintiff's claims are timely, did VUSD fail to assess for autism based on the objective test for "suspected disability" announced in Timothy O.? Applying the proper legal standards to the ALJ's findings and the undisputed record, the Court finds that Plaintiff has timely brought his claims and that VUSD has violated the IDEA by failing to assess in all areas of suspected disability, thereby denying J.R. a FAPE beginning in 2012.
A. The Statute of Limitations
Pursuant to 20 U.S.C. § 1415(f)(3)(C), the applicable statute of limitations for requesting a due process hearing under the IDEA is two years from the date a party knew or should have known of the actions forming the basis of their claim. California's relevant statute of limitations is functionally equivalent. See Cal. Edu. Code. § 56505(l) (a request "shall be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request."). The statute of limitations is tolled when the parent was prevented from requesting a hearing due to either misrepresentation or withheld information. 20 U.S.C. § 1415(f)(3)(D); Cal. Edu. Code § 56505(l).
In determining when the statute of limitations begins to run in an IDEA case, the discovery rule applies. See Avila v. Spokane Sch. Dist. 81, 852 F.3d 936, 941 (9th Cir. 2017) ("the IDEA's statute of limitations requires courts to apply the discovery rule"). Avila also makes clear that the discovery rule and the statutory exceptions applicable to tolling involve different inquiries. Avila, 852 F.3d at 944 (remanding because "apart from considering the two express exceptions to the IDEA's statute of limitations, the district court barred the Avila's claims arising before April 26, 2008 based on when the actions complained of occurred, rather than applying the discovery rule.").
As discussed below, the Court finds that the ALJ erred in finding that J.R.'s pre-2019 claims were untimely. The Court first addresses how the ALJ failed to apply the Avila discovery rule in calculating the proper accrual date. The Court then addresses how the ALJ erred in finding that the statutory exceptions did not toll the statute of limitations.
1. The Discovery Rule Under Avila
The ALJ's analysis does not support a finding of untimeliness. This stems from two errors: (1) the ALJ applied the incorrect legal standards in determining Parents' notice and in determining VUSD's suspicion of autism; and (2) the ALJ conflated these issues, failing to provide discrete analysis even under the erroneous standards. Specifically, the ALJ erred in finding that Parents' subjective knowledge of autism was immaterial, while simultaneously finding that VUSD's objective failure to suspect autism provided Parents with requisite notice and negated any misrepresentation or withheld information. As described below, these errors explain the ALJ's disjointed analysis, to which little deference is due.
In Avila, the Ninth Circuit held that as a matter of first impression, "the IDEA's statute of limitations requires courts to apply the discovery rule without limiting redressability to the two-year period that precedes the date when 'the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.' " Avila, 852 F.3d at 944 (citing 20 U.S.C. § 1415(f)(3)(C)). After a detailed discussion of the IDEA's statutory construction, the court in Avila concluded that Congress did not intend § 1415(f)(3)(C) to be governed by the "occurrence rule" or the "2 + 2 rule" and, instead, intended it be governed by the "discovery rule." Id. at 940-44. Moreover, the court clarified that a plaintiff's awareness of underlying facts "does not necessarily mean [the plaintiff] 'knew or had reason to know' of the basis of their claims" because some issues " 'require[ ] specialized expertise a parent cannot be expected to have[.]' " Id. (citing A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1205 (9th Cir. 2016)). The court reasoned:
In dismissing the Avilas' complaint, the district court cited the correct standard from § 1415(f)(3)(C), but concluded, "Parents' due process complaint was made April 26, 2010. Accordingly, unless an exception is shown, the Court finds any alleged misconduct prior to April 26, 2008, was not timely raised by Parents." In other words, apart from considering the two express exceptions to the IDEA's statute of limitations, the district court barred the Avilas' claims arising before April 26, 2008 based on when the actions complained of occurred, rather than applying the discovery rule.Avila, 852 F.3d at 944. Based on this error, the Ninth Circuit reversed and "remand[ed] to the district court to make findings and address the statute of limitations under the standard we adopt here, namely when the Avilas 'knew or should have known about the alleged action[s] that form[ ] the basis of the complaint.' " Id. (citing § 1415(f)(3)(C)).
Here, as discussed above, the ALJ made several findings as to what information Parents had and when they had it. However, the ALJ failed to explain why that information should have led Parents to suspect J.R. required autism or pragmatic language assessment. Most significantly, the ALJ erred as a matter of law in finding that Parents' unfamiliarity with autism was immaterial to the issue of their knowledge. CAR 14 at 351-52. Stated differently, the ALJ erroneously applied the notice standard for experts, in express violation of Avila. See Avila, 852 F.3d at 944. In fact, the ALJ's conclusion that Parents had "all the information they needed to timely file for due process if they disagreed with Ventura [,]" demonstrates that Parents' subjective knowledge is in fact material. See CAR 14 at 336 (emphasis added). Absent an understanding that J.R.'s symptoms were symptoms of autism , Parents did not have any reason to disagree with Ventura. To the contrary, the record reflects that Parents earnestly adhered to the district's purportedly expert guidance. Perez testified that she believed J.R.'s difficulties resulted from specific learning disorder and speech impediment, as diagnosed by VUSD. CAR 15 at 410:7-12 [Dkt. 20-15]. She did not question that diagnosis until she received J.R.'s complete educational file and her attorney suggested that he be assessed for autism in 2021. Id. at 447:17-19. Many of the ALJ's findings support Perez's testimony—namely, that she consistently participated in the IEP process and reported her (lay) observations of J.R.'s milestones and difficulties. See CAR 14 at 344, 347, 349-350. Nothing in the record suggests that Parents had the specialized skill to contest J.R.'s diagnosis—nor does the record suggest Parents disagreed with that diagnosis in any way until 2021.
For the same reason, the Court rejects Defendant's argument that VUSD's 2018 conclusion that J.R. did not exhibit characteristics of autism put Parents on notice because Woodruff's explanation "utilize[ed] the definition of autism under the IDEA[.]" Def.'s Br. at 15. This implies that Parents should have known enough about autism to not only recognize it themselves, but to reject the opinion of VUSD's trained professionals. This is wholly inconsistent with Avila.
Despite its length, at no point does the Decision explain why the ALJ's various findings—which can be properly summarized as a recitation of the information recorded in J.R.'s IDEA documents—demonstrate Parents' knowledge that J.R. should have been assessed for autism or pragmatic learning. The Decision essentially provides two reasons for finding such knowledge: (1) because Parents consented to assessments that did not test for autism; and (2) because Parents received reports and attended IEP meetings that did not discuss autism. Id. at 332-342. These findings, while supported by the record, do not demonstrate notice.
For example, the areas of assessment were generalized education fields, such as "social/emotional behavior" or "health"—not individualized tests. Parents consented by signing a one-page form, where VUSD had checked boxes simply labeled as these generalized fields. No field was labeled as or referred to autism. See, e.g., CAR 2 at 174. Moreover, nearly all fields were checked. Thus, even assuming Parents had reason to know which box indicated that autism would or would not be assessed, the forms stated that J.R. would be assessed in almost every field. The ALJ fails to explain why this informed Parents that J.R. would not be assessed, specifically, for autism or pragmatic language—much less that J.R. should have been assessed for those disabilities. Similarly, the ALJ fails to explain why the reports and IEP team meetings informed Parents that J.R. should have been assessed for autism and pragmatic learning, merely because they discussed J.R.'s symptoms. See, e.g., CAR 14 at 338. Again, the implication that Parents should have gleaned a proper diagnosis from nothing more than VUSD's findings and improper diagnosis, is not supported by Avila. While voluminous, the ALJ's findings are only superficially related to the pertinent issue. Simply put, the ALJ repeatedly found that Parents knew what VUSD had done and, therefore, knew what VUSD had not done with respect to J.R.'s assessments. However, at no point, did the ALJ find that, based on that knowledge, Parents were specifically and subjectively aware that J.R. required further assessment, or even that they should have been aware based on an objective standard of reasonableness.
The only fields not proposed for assessment were vocational/prevocational in 2012, 2015 and 2018, and occupational therapy in 2015 and 2018. CAR 2 at 174; CAR 3 at 83; CAR 14 at 340.
Finally, the Court is not persuaded by the ALJ's assertion that knowledge of an inadequate education is sufficient for a claim to accrue. See id. at 328 (citing M.M. & E.M. v. Lafayette School Dist., Nos. CV 09-4624, 10-422 SI, 2012 WL 398773, at *18 (N.D. Cal. Feb. 7, 2012)); see also Def.'s Br. at 14 (same). Reliance on M.M., which predates Avila, is misplaced. M.M., at *18 cites to Bell v. Board of Edu. of the Albuquerque Public Schools, No. CIV 06-1137 JB/ACT, 2008 WL 4104070, at *17 (D.N.M. Mar. 26, 2008). In Bell, defendant had erred in mislabeling plaintiff as "mentally retarded" (term in the original) since 1996 and plaintiff realized it was the wrong labeling on May 12, 2005. "Because Bell's action was based upon [defendant]'s mislabeling him, the 'alleged action . . . form[ing] the basis of [his] complaint' was the change of label in May 12, 2005." Id. In deciding that issue, the court noted "[t]he focus is on whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm." Id., at *14. To the extent that M.M. does, in fact, demonstrate that inadequate education can serve as notice, that notice occurs when a parent knows the inadequacy is causing harm—regardless of whether they know that harm amounts to a legal claim. Here, in order for J.R.'s inadequate education to serve as notice, Parents needed knowledge of the action (i.e., VUSD did not test for autism) and knowledge that the action caused harm (i.e., J.R. suffered from undiagnosed autism).
For the reasons discussed above, the Court concludes that the ALJ erred in finding that Plaintiff's claims were barred by the two-year statute of limitations. Plaintiff has demonstrated by a preponderance of the evidence that Parents did not know of the actions that formed the basis of their complaint in 2012, 2015 or 2018, and did not have reason to know given the district's repeated (and false) insistence that they had assessed for every suspected disability.
2. Tolling the Statute of Limitations
Title 20 U.S.C. § 1415(f)(3)(D) provides for two exceptions to the two-year statute of limitations. First, § 1415(f)(3)(D)(i) tolls the statute of limitations, "if the parent was prevented from requesting the hearing due to . . . misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint[.]" Second, § 1414(f)(3)(D)(ii) tolls the statute of limitations "if the parent was prevented from requesting the hearing due to . . . the local educational agency's withholding of information from the parent that was required under this subchapter to be provided to the parent." The ALJ essentially found that VUSD did not "suspect" autism and, therefore, could not have misrepresented or withheld information that it assessed for autism. See, e.g., CAR 14 at 344. The ALJ rejected Plaintiff's argument that VUSD's obligation to assess in all areas of suspected disability amounted to a specific representation that it would assess for autism, by simply stating it was unsupported by law or evidence. See, e.g., id. at 347. Such reasoning is neither careful nor thorough. After thoroughly reviewing the record, the Court finds that VUSD failed to explain and disclose key information related to J.R.'s BASC and ABAS scores, preventing Parents from requesting a hearing and tolling the statute of limitations.
As a threshold matter, the Court addresses Defendants' two primary arguments. First, Defendant argues that misrepresentation requires intent. Def.'s Br. at 15 (citing D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 (3d Cir. 2012)). While Defendant provides no binding authority, the Court notes that even discriminatory intent includes recklessness. See Gabel ex rel. L.G. v. Bd. of Edu. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005) (explaining the IDEA offers relief regardless of discrimination, while Section 504 requires proof of discriminatory intent, which can be inferred "if a school district is grossly negligent or recklessly indifferent" in denying a student access to a FAPE). Second, Defendant argues the withholding exception only applies to statutorily mandated materials, and VUSD satisfied this duty by disclosing the assessment reports with summaries of their findings and explanations for the basis of their conclusions. Def.'s Br. at 19. While this may be correct, the issue is not what materials VUSD disclosed—rather, it is what information those materials omitted from their summaries and conclusions and whether that omission prevented Parents from understanding those conclusions were incorrect. Here, the preponderance of the evidence reflects that VUSD, at the very least, recklessly misrepresented J.R.'s assessment results. It also reflects that VUSD withheld information that prevented Parents from understanding, based on those results, that VUSD had improperly diagnosed J.R. since 2012.
The Court also considers several parts of the record that weigh in favor of Plaintiff, should a higher standard of scienter be necessary. For example, in preparation for J.R.'s 2012 IEP meeting, his teacher expressly complained to a school administrator that Debbie Erickson had prevented her from presenting Parents with the option of "Special Day Class" based on J.R.'s deficient language skills detected by the Brigance Diagnostic Comprehensive Inventory of Basic Skills. CAR 2 at 168-69. This demonstrates that, as early as 2012, professionals were concerned that VUSD's services and communication with Parents failed to address J.R.'s needs.
J.R.'s BASC scores were in the "clinically significant" range for atypicality in 2012 and 2015. CAR 2 at 197; CAR 3 at 93. In her 2012 report, Lano wrote these scores "suggest a high level of maladjustment and indicate that treatment is necessary[,]" but she did not conduct any further testing. CAR 2 at 197. According to the 2015 BASC Diagnostic Considerations, J.R.'s probability of autism was "relatively high[.]" CAR 4 at 10. However, Beley wrote in her 2015 report that J.R.'s scores only "indicated that he sometimes behaves in ways that seem strange." CAR 3 at 89. This statement was objectively false and misleading. Parents' expert opined at the hearing that such elevated scores indicate that J.R. should have been assessed for autism and, according to Peterson, they indicate a "red flag" for autism. CAR 16 at 111:6-24 [Dkt. 25-16]; CAR 1 at 516:3-11 [Dkt. 25-1].
In 2018, Woodruff summarily concluded that autism was not a suspected disability based on J.R.'s ABAS-3 and BASC-3 scores. CAR 6 at 41. At the hearing, Woodruff testified that BASC could be used to support or rule out autism and that a formal assessment of autism is not needed if there are no "red flags." CAR 16 at 337:1-4. However, she conceded that neither ABAS-3 nor BASC-3 measure pragmatic learning or autism and that J.R.'s records documented examples of poor verbal and nonverbal communication deficits and difficulties with appropriate social indication. Id. at 320:13-18; 354:23-356:11. This testimony contradicts Woodruff's 2018 report and demonstrates how VUSD misrepresented and withheld critical information in 2018. Parents had a right to rely on VUSD's expert assessments—namely, Woodruff's conclusion that autism was not a suspected disability, based on reliable methods that tested for autism. Moreover, Woodruff's conclusion was consistent with the previous assessments which did not express any concerns about autism and, as discussed above, Parents had no reason to dispute.
In 2018, Woodruff specifically wrote:
Based on parent reports, school records, observations and current testing, student does not demonstrate a developmental disability that is significantly affecting verbal and nonverbal communication and social interaction. Current measures such as the [Adaptive Behavior Assessment System or "ABAS-3"] and BASC-3 indicate normal development in the area of pragmatic communication. Student does not demonstrate unusual responses to sensory experiences. No evidence of oral or movement seeking behaviors, self-stimulatory sensory behaviors, responses such as over focusing on specific sounds, demonstrating a fearful response to sound or touch, or playing with his visual field were observed or reported during this assessment. Therefore, J.R. does not appear to meet eligibility for autism.CAR 6 at 41. Woodruff also testified that the 2018 BASC Diagnostic Criteria page indicated that J.R. could have impaired social/emotional reciprocation and that he had difficulty developing peer relationships appropriate to developmental level, which are both symptoms of autism. CAR 16 at 354:23-356:6.
In sum, the record reflects that VUSD did not disclose, but knew, that best practices required further assessment as early as 2012. Regardless of whether VUSD was required to disclose the BASC Diagnostic Considerations/Criteria, it was required to explain why it did not suspect autism even though reliable scientific methods indicated this conclusion was, at the very least, premature. In this sense, the reports omitted key information that prevented Parents from suspecting autism. Much worse, the 2018 report specifically misrepresented that VUSD had appropriately assessed J.R. for autism and concluded that he did not have it. Thus, even if Parents began to suspect that J.R.'s 2012 and 2015 scores required further assessment, they were reasonably led to believe such assessment had taken place.
The essential issue is the cumulative effect of the following: (1) VUSD represented to Parents that it had assessed for all areas of suspected disability; (2) based on the assessment reports, this reasonably led Parents to believe that VUSD either had no need to assess for autism or, as of 2018, assessed for autism and ruled it out; (3) VUSD did not communicate the diagnostic meaning of BASC/ABAS scores—other than mispresenting their ability to measure autism. Parents had a right to rely on VUSD's legally required expertise in assessing J.R. for all areas of disability. See 20 U.S.C. § 1414 (b)(3)(A) & (B). Whether through intentional misrepresentation or omission, VSUD prevented Parents from requesting a hearing because its reports and IEPs did not include the information necessary to doubt J.R.'s diagnosis. The Court finds, in addition to satisfying the discovery rule, Plaintiff has demonstrated by a preponderance of the evidence that VUSD misrepresented and/or withheld its findings as early as 2012, tolling the statute of limitations.
B. VUSD Failed to Provide J.R. with a FAPE beginning in 2012
School districts are obligated to find and identify children who may need special education services. 20 U.S.C. § 1412(a)(3). Upon identification, a child must be evaluated and assessed for all suspected disabilities so that a school district can determine what special education and related services are needed. 20 U.S.C. §§ 1412(a)(7), 1414(a)-(c); see also Cal. Edu. Code § 56320(f). In the Ninth Circuit, "precedent establishes that a disability is 'suspected' and therefore must be assessed by a school district, when the district has notice that the child has displayed symptoms of that disability." Timothy O., 822 F.3d at 1119-20.
Here, the ALJ has already found that, as in Timothy O., the school district's failure to administer standardized tests to assess an objectively suspected disability violated J.R.'s procedural due process rights. The parties submitted no new evidence and have stipulated to have this matter decided on the briefing. [Dkt. 41]. Having considered that briefing, and according due weight to the ALJ's findings, the Court finds that autism was a "suspected disability" beginning in 2012 because the undisputed facts of the record demonstrate that J.R. exhibited symptoms of autism beginning in 2012. Thus, having found that J.R.'s claims are not limited to those that occurred after April 2019, the Court finds that VUSD failed to administer necessary standardized tests beginning in 2012 and denied J.R. a FAPE beginning in 2012.
"[T]he IDEA requires that every State have procedures in place that are designed to identify children who need special education services." Timothy O., 822 F.3d at 1110 (citing 20 U.S.C. § 1412(a)(3)(A)). "Once identified, those children must be evaluated and assessed for all suspected disabilities so that the school district can begin the process of determining what special education and related services will address the child's individual needs." Id. (citing §§ 1412(a)(7), 1414(a)-(c)). "That this evaluation is done early, thoroughly, and reliably is of extreme importance to the education of children. Otherwise, many disabilities will go undiagnosed, neglected, or improperly treated in the classroom." Id. (citing 20 U.S.C. 1400(c)). Thus, the IDEA requires that school districts "conduct a full and individual initial evaluation" of a child "before the initial provision of special education and related services" to that child. Id. § 1414(a)(1)(A).
School districts must also comply with the IDEA and local regulations' procedural requirements, which "are designed to ensure that this initial evaluation (as well as any subsequent reevaluations) achieves a complete result that can be reliably used to create an appropriate and individualized educational plan tailored to the needs of the child." Id. The initial evaluation "must be designed not only to determine whether the child has a disability, but also 'to gather relevant functional, developmental, and academic information about the child,' that can be used to determine the child's individual educational needs." Id. at 1111 (citing 34 C.F.R. § 300.304(b)(1); 20 U.S.C. § 1414(a)(1)(C)). "The school district must, therefore, 'ensure that— . . . the child is assessed in all areas of suspected disability.' " Id. (citing 20 U.S.C. § 1414(b)(3)(B) (emphasis added)). "Anything less would not provide a complete picture of the child's needs." Id. The school district must also provide parents with notice that describes "any evaluation procedures" that the district proposes to conduct, as well as why it has made those decisions. Id. (citing 20 U.S.C. § 1414(b)(1) (emphasis added); 34 C.F.R. § 300.304(a)). In conducting the evaluation, the IDEA requires school districts: (1) use a "variety of assessment tools and strategies," 20 U.S.C. § 1414(b)(2)(A) & (B); (2) use "technically sound instruments," id. § 1414(b)(2)(C); and (3) ensure that all assessments are conducted by trained and knowledgeable personnel, id. § 1414(b)(3)(A). Timothy O., 822 F.3d at 1111.
Based on these requirements, the Ninth Circuit has explicitly held that informal observations and subjective opinions fail to satisfy the school district's duty, and that failing to administer standardized tests to assess a suspected disability is a procedural violation under the IDEA. Id. at 1127. Whether a school district "suspects" a disability is an objective test. Id. at 1119-20. Ninth Circuit, "precedent establishes that a disability is 'suspected' and therefore must be assessed by a school district, when the district has notice that the child has displayed symptoms of that disability." Id. at 1119-20.
Here, the ALJ found that the 2018 and 2021 triennial assessments documented symptoms of autism. The ALJ focused on J.R.'s academic struggles, cognitive deficits, immaturity, and sensory-seeking behaviors, as well as other "inappropriate" behaviors. CAR 14 at 365-370. However, this information is virtually indistinguishable from that documented in J.R.'s 2012 assessment and, in fact, each assessment conducted by VUSD. As discussed in greater detail above, J.R. tested in the lower-extreme to below-average range academically and demonstrated severe pragmatic deficits, immaturity and sensory-seeking behaviors in 2012. CAR 14 at 334-34; see also CAR 2 at 193-94, 201. In 2013 and 2014, J.R. spoke loudly, blurted out words, and demonstrated a general lack of body awareness. CAR 14 at 336. In 2015, J.R. was inattentive, fidgety, struggled with directions and verbal items, and had an extremely low verbal expression score and below-average fluid reasoning score. Id. at 338; CAR 3 at 86, 88-9. In 2016 and 2017, he continued to function low cognitively and struggle with memory for visual and auditory stimuli. CAR 14 at 339. At the hearing, all VUSD school psychologists, as well as Freeman and Schnee, testified that J.R. demonstrated symptoms of autism throughout this time-period. CAR 17 at 59:14-63:21 (Llano) [Dkt. 25-17]; CAR 15 at 337:6-19 (Beley); CAR 16 at 320:16-18 (Woodruff); CAR 17 at 286:20-288:19; 296:3-7 (Peterson); CAR 16 at 64:18-66:8 (Freeman); CAR 15 at 233:18-234:3 (Schnee). In fact, the ALJ also found J.R. exhibited symptoms of autism since 2012: "Defendant knew that Student had extensive verbal/nonverbal deficits as documented in every IEP team meeting and triennial assessment since 2012." CAR 14 at 387.
That a child's evaluation in all areas of suspected disability, "is done early, thoroughly, and reliably is of extreme importance to the education of children. Otherwise, many disabilities will go undiagnosed, neglected, or improperly treated in the classroom." Timothy O., 822 F.3d at 1110. A school district denies a child a free appropriate public education by violating the IDEA's substantive requirements when it offers a child an IEP that is not reasonably calculated to enable the child to receive educational benefits." Id. at 1118 (citing J.W. ex rel. J.E.W., 626 F.3d at 432-33). The Ninth Circuit's ruling in Timothy O. clearly sought to protect students just like J.R. who—through no fault of his own and despite Parents' committed compliance with the school district's recommendations—suffered from an undiagnosed, neglected, and improperly treated disability and, based on the school's failure to assess for that disability, received an IEP for nearly nine years that prevented him from receiving educational benefits. The preponderance of evidence demonstrates VUSD failed to provide J.R. with a FAPE beginning in 2012.
C. Remedies
When a district violates the IDEA, courts have broad discretion in crafting "appropriate" relief. 20 U.S.C. § 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009); see Town of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (finding the IDEA confers "broad discretion" on the court to "grant such relief as [it] determines is appropriate."). "Compensatory education is an equitable remedy that seeks to make up for educational services the child should have received in the first place, and aim[s] to place disabled children in the same position they would have occupied but for the school district's violations of IDEA." R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125 (9th Cir. 2011) (internal quotation marks omitted).
Here, the ALJ found, "absent evaluation supported by standardized tests, parents were substantially hindered in their ability to participate in developing an IEP with appropriate supports and services because they did not have the necessary information" and, thus, VUSD's failure to assess in autism and pragmatic language "resulted in a substantive FAPE denial." CAR 14 at 448. For that denial, the ALJ awarded 152 compensatory education hours, in the amount of $19,000, for Ventura's FAPE denials from April 8, 2019 to August 10, 2021. Id. at 414. This reflected twelve months of schooling at roughly 12.7 hours of compensatory education per month, valued at $125.00 per hour. Id. at 414. However, as discussed above, the same supports and services that were absent in J.R.'s 2020 and 2021 IEPS were absent beginning in 2012. Plaintiff argues the ALJ failed to consider equity in her award of remedies. Pl.'s Br. at 32. Plaintiff requests, at a minimum, that J.R. be provided with the same compensatory education for the time period from 2012 to 2019, that the ALJ provided from 2019 to 2021. Reply at 14. Specifically, J.R. seeks compensatory education for an additional eighty-two months, totaling $130,175.00 calculated as follows: eighty-two months of schooling at 12.7 hours of compensatory education per month, valued at $125.00 per hour. Id.
Defendant argues the Court must remand to the OAH because the ALJ did not make factual findings underneath the statute of limitations issue. In IDEA appeals, a court may make a final judgment based on the preponderance of evidence, in what is essentially a bench trial on a stipulated record. Wartenberg, 59 F.3d at 892; Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). "A school district denies a child a free appropriate public education by violating the IDEA's substantive requirements when it offers a child an IEP that is not reasonably calculated to enable the child to receive educational benefits." Timothy O., 822 F.3d at 1118 (citing J.W. ex rel. J.E.W., 626 F.3d at 432-33). "While some procedural violations can be harmless, procedural violations that substantially interfere with the parents' opportunity to participate in the IEP formulation process, result in the loss of educational opportunity, or actually cause a deprivation of educational benefits 'clearly result in the denial of a [free appropriate public education.]' " Timothy O., 822 F.3d at 1118 (quoting Amanda J., 267 F.3d at 892). The preponderance of the evidence demonstrates the ALJ found that VUSD did not formally assess J.R. for autism, that it was required to formally asses J.R. for autism, and this failure made it impossible to craft an effective IEP for more than nine years. This constitutes failure to provide FAPE under the IDEA.
At the hearing on this matter, the Court asked Plaintiff whether there had been a thorough assessment including, among other things, remedial steps and a frequency breakdown of needed services. Plaintiff responded that Freeman's 2021 report gave recommendations about ongoing social skills development and speech and language services. Based on those recommendations, Plaintiff presented that J.R. had completed a six-week intensive reading program and made over a year of progress in reading and writing. Freeman's report did not include a frequency breakdown.
The Court finds that J.R. is entitled to equitable relief for VUSD's violations prior to 2019 and that it has broad discretion in crafting "appropriate" relief. Accordingly, the Court will issue a separate order requiring the parties to submit supplemental briefing as to the appropriate remedy, including whether an additional assessment is required and, if not, what recommendations and frequency breakdown serves as the basis for Plaintiff's request.
V. CONCLUSION
For the reasons discussed above, the Court REVERSES the OAH Decision on the issue of the statute of limitations and remedy. The Court finds that (1) Plaintiff's pre-2019 claims are not barred by the statute of limitations and (2) VUSD violated the IDEA by failing to provide J.R. with a FAPE as to those earlier claims. The Court will order supplemental briefing on the issue of Plaintiff's requested equitable remedy.