Opinion
CIV. NO. 2:14-01842 WBS EFB
06-14-2016
J.L., a minor, by and through his parent and guardian ad litem, Y.L. and Y.L., individually, Plaintiffs, v. MANTECA UNIFIED SCHOOL DISTRICT and SAN JOAQUIN COUNTY OFFICE OF EDUCATION, Defendants. AND RELATED COUNTERCLAIMS.
MEMORANDUM AND ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
This suit was initiated by plaintiff J.L., a student with an autism and speech language impairment, by and through his mother and guardian ad litem, Y.L., against defendants Manteca Unified School District and San Joaquin County Office of Education ("SJCOE") under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400 et seq. Both parties move for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Docket Nos. 29, 30.)
I. Procedural & Factual Background
J.L. is a nine-year-old boy with autism who has been eligible for an Individual Education Plan ("IEP") since 2009. Pursuant to a settlement agreement, which was in effect until the start of the 2012-2013 school year, J.L. attended the Kendall School from April 11, 2011 through April 5, 2012, a center-based one-to-one Applied Behavior Analysis ("ABA") program run by the nonpublic agency Therapeutic Pathways. (Admin. R. ("AR") at 2285.) In May 2012, he transitioned to an autism-specific severely handicapped special day class at Veritas Elementary School within the Manteca Unified School District. (Id .) He has a 1:1 aide with him at all times and the classroom employs ABA methodologies throughout the day. (Id . at 2564.)
On November 22, 2013, plaintiffs filed a request for a due process hearing with the Office of Administrative Hearings ("OAH") challenging various portions of J.L.'s IEP for the 2012-2013 and 2013-2014 school years pursuant to 20 U.S.C. § 1415(f). Administrative Law Judge ("ALJ") Peter Paul Castillo presided over a nine-day hearing that involved approximately thirty witnesses, over 2,000 pages of evidence, and generated over 2,000 pages of testimony transcripts. (Id . at 2225.) The ALJ found in favor of plaintiffs on two issues and in favor of defendants on all others. Both parties have appealed the ALJ's decision pursuant to 20 U.S.C. § 1415(i)(2).
II. Applicable Law
The IDEA, originally enacted in 1975 as the "Education for All Handicapped Children Act," provides federal assistance to state and local agencies for the education of children with disabilities. To qualify for assistance under the IDEA, a state must provide a "free appropriate public education" ("FAPE") that is tailored to the unique needs of the child with a disability through the development of an "individualized educational program." 20 U.S.C. § 1412(a)(1) & (4).
A "free appropriate public education" means "special education and related services" that:
(A) have been provided at public expense, under public supervision and direction, and without charge;Id . § 1401(9). "Special education" is instruction specially designed to meet the unique needs of a child with a disability. Id . § 1401(29). "Related services" are transportation and other developmental, corrective, and supportive services, including physical and occupational therapy, required to assist the child in benefiting from special education. Id . § 1401(26). The IDEA is satisfied if the state complies with the act's procedures and "the individualized education program developed through the Act's procedures [is] reasonably calculated to enable the child to receive educational benefits." Park, ex rel . Park v . Anaheim Union High Sch . Dist ., 464 F.3d 1025, 1031 (9th Cir. 2006).
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under [the Act].
An "individualized education program" or IEP is "a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of [the Act]." Id . § 1401(14). Section 1414(d) provides that the IEP must contain a statement of the child's present levels of academic achievement and functional performance and measurable annual academic and functional goals. Id . § 1414(d)(1). The IEP is developed and reviewed each year by a team comprised of the child's parents, teachers, and other specialists. Id .
III. Discussion
The IDEA does not employ the usual deferential standard of review for administrative decisions, but rather provides that the court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) 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). The district court should review for procedural compliance with the statute and for whether the program is reasonably calculated to enable the child to receive educational benefits. Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995).
"The requirement that the district court receive the hearing officer's record 'carries with it the implied requirement that due weight shall be given to the [administrative] proceedings.'" Id . (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). The amount of deference given to the administrative findings is within the court' s discretion and increases when the hearing officer's findings are "thorough and careful." Id . The court gives the hearing officer's decision "substantial weight" when it "'evinces his careful, impartial consideration of all the evidence and demonstrates his sensitivity to the complexity of the issues presented.'" County of San Diego v . Cal . Special Educ . Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996) (citation omitted). Complete de novo review is inappropriate because "Congress intended states to have the primary responsibility of formulating each individual child's education" and the court must defer to the "specialized knowledge and experience" of the state's administrative bodies. Amanda J . ex rel . Annette J . v . Clark Cnty . Sch . Dist ., 267 F.3d 877, 887-88 (9th Cir. 2001).
The Ninth Circuit has recognized that the procedure under the IDEA is "not a true summary judgment procedure," but is "essentially . . . a bench trial based on a stipulated record." Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993). "It is hard to see what else the district court could do as a practical matter under the statute except read the administrative record, consider the new evidence, and make an independent judgment based on a preponderance of evidence and giving due weight to the hearing officer's determinations." Capistrano, 59 F.3d at 892. "Even though [this method of review] does not fit well into any pigeonhole of the Federal Rules of Civil Procedure," it is appropriate because it "appears to be what Congress intended under the Act." Id .
A. Failure to Answer Defendants' Counterclaims
Defendants argue that because plaintiffs failed to file an answer to defendants' counterclaims, plaintiffs judicially admitted all of the matters alleged and the court can grant defendants' motion for summary judgment on this ground alone. (Defs.' Mot. for Summ. J. at 5-6 (Docket No. 29-1)); Fed. R. Civ. P. 8(b)(6). A party must serve an answer to a counterclaim or crossclaim within twenty-one days of being served with the pleading, id. R. 12(a)(1)(B), and an allegation "is admitted if a responsible pleading is required and the allegation is not denied," id. R. 8(b)(6). See also Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980) (finding the defendant's failure to deny an allegation in its answer to the plaintiff's complaint constituted an admission and, as a result, no evidence on this element of the bankruptcy case was required); Keel v. Dovey, 459 F. Supp. 2d 946, 950 n.3 (C.D. Cal. 2006) (same).
The court, however, will not grant defendants' motion for summary judgment on such a technicality. Deciding the issues based on this procedural error is inappropriate, especially in light of the fact that both parties have already fully briefed the issues and participated in a nine-day hearing in front of the ALJ. There is no question that defendants have been aware of plaintiffs' claims and defenses from the beginning and were not prejudiced by plaintiffs' failure to file an answer to its counterclaims. Accordingly, the court will deny defendants' motion for summary judgment on this ground.
B. Assessments
A student must be assessed in all areas related to a suspected disability. 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4). A procedural violation, such as a failure to conduct appropriate assessments, results in a denial of a FAPE if the violation (1) impeded the child's right to a FAPE, (2) seriously infringed the parents' opportunity to participate in the decision making process, or (3) caused a deprivation of educational benefits. See Park, 464 F.3d at 1031; Cal. Educ. Code § 56505(f)(2).
1. Augmentative and Alternative Communication Assessment
Plaintiffs first argue that defendants denied J.L. a FAPE by failing to assess him in the area of augmentative and alternative communication ("AAC") in the 2012-2013 and 2013-2014 school years. AAC includes all forms of communication, other than oral speech, that are used to express thoughts, needs, wants, and ideas. (Pls.' Mot. for Summ. J. at 20 n.4.) Special AAC aids, such as picture and symbol communication boards and electronic devices, can be used to help children express themselves. (Id.)
The ALJ correctly concluded that plaintiffs failed to bring forth sufficient evidence that defendants were required to conduct an AAC assessment to find communication tools that are more effective for J.L. Ginna Brents, the licensed speech and language pathologist hired by plaintiffs, stated at the hearing that an AAC assessment would benefit J.L. because "for a communicative purpose, it's a good idea to see if [J.L.] would benefit from an AAC device." (Id. at 2387-88.) Brents, however, did not recommend an AAC assessment in either her 2010 or 2013 speech and language evaluations and also admitted at the hearing that she never observed J.L. at school and therefore did not know if his picture exchange book system was being implemented consistently at school. (Id. at 2389, 2409.) Dr. Carina M. Grandison, the developmental neuropsychologist hired by plaintiffs, also failed to recommend such an assessment in her developmental neuropsychology assessment report based on her observations in May and September 2013. (Id. at 1688-98.) Similarly, SJCOE's speech and language pathologist, Isabel Contreras, assessed J.L. in May-June 2012 and did not recommend an AAC assessment. (Id. at 837-47.)
There was also significant evidence presented that defendants were already effectively using augmentative communication with J.L. in the form of a picture exchange book and that J.L.'s speech was emerging. (See id. at 3568-69, long-term substitute teacher Cindy Kelch; id. at 4371, SJCOE speech and language pathologist Juana Mier-Anaya; id. at 2484, 2508-09 SJCOE behavior analyst Susan Scott; id. at 2509, 2603, 4089, 4097, SJCOE speech therapist Monica Filoso; id. at 2729, SJCOE instructional assistant Wanda Luis; id . at 3734-35, senior service coordinator at Valley Mountain Regional Center Elizabeth Diaz.) The school also attempted to teach J.L. how to communicate with an iPad but J.L. did not show an interest in this device. (Id. at 2241.)
For all the above reasons, the court finds defendants were not required to provide J.L. an AAC assessment.
2. Functional Behavior Assessment
Plaintiffs next argue J.L. was denied a FAPE under the IDEA because defendants developed J.L.'s IEPs without a functional behavior assessment. In the "case of a child whose behavior impedes the child's learning or that of others," the IEP team must "consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.324(a)(2)(i); Cal. Educ. Code § 56341.1(b)(1). A functional behavior assessment is one type of behavioral intervention or strategy that helps identify causative factors and objectionable behaviors. See Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1026 (8th Cir. 2003). A functional behavior assessment is not, however, required. See S.J, ex rel. S.H.J, v. Issaquah Sch. Dist. No. 411, Civ. No. C04-1926 RSL, 2007 WL 2703056, at *5 (W.D. Wash. Sept. 12, 2007) (noting that a functional behavior assessment is required only when a student has been removed from her current placement).
In this case, the ALJ carefully weighed the evidence and concluded that plaintiffs failed to establish that J.L. had serious behavior problems at school that warranted a functional behavior assessment. The staff at Veritas were aware of J.L.'s behavioral issues, such as scratching, pinching, lack of attention, and running into others, but reported that they were able to easily redirect J.L. from the maladaptive behaviors. (See, e.g., AR at 4026, teacher Cindy Campero (testifying that she could re-direct Ivan from staring at the ceiling in seconds); id. at 3526, 3565, 3574 long-term substitute teacher Cindy Kelch (testifying that J.L. was redirected from avoiding eye contact, staring at the ceiling, or grabbing, pinching, and scratching in seconds).)
The court agrees with the ALJ's finding that the report produced by Dr. Carina M. Grandison, a developmental neuropsychologist, was not as credible as the testimony of the Veritas staff and overemphasized J.L.'s behavioral problems. Dr. Grandison was hired by plaintiffs and based her report on an interview of Y.L., review of school records and a questionnaire filled out by J.L.'s teacher, two observations and testing sessions in the office, and two ninety-minute school observations in April and September 2013. (Id. at 1688-98, Dr. Grandison Report of Developmental Neuropsychology Assessment.) Dr. Grandison observed J.L. staring at the ceiling and being disconnected for much longer periods of time than reported by the Veritas staff, particularly during her second school visit. (Id. at 1692-93.) While J.L. was in her office, he was often crying, refusing to work, lying on the floor, scratching, and kicking. (Id. at 1693.) Dr. Grandison noted that this behavior was typical of what Y.L. reported seeing at home. (Id.) She concluded that J.L.'s "behaviors outside of the school environment are of great concern, maladaptive, and even posing the risk of harming himself and others (such as scratching and other acts of aggression)." (Id. at 1697.)
The ALJ found that Dr. Grandison was not reliable because she does not have experience in the behavior field, the Veritas staff persuasively testified that Dr. Grandison's report had several significant inaccuracies, the Veritas staff was more convincing in their statements overall, and Dr. Grandison failed to differentiate between J.L.'s behavior at home and at school. (Id. at 2233-34.) Given that the ALJ was able to listen to the testimony of the witnesses and observe their demeanor first-hand, he was better equipped to assess the credibility of the witnesses than this court. The court will therefore defer to his more informed assessment of their credibility.
In addition, Susan Scott, a Board Certified Behavior Analyst, did eventually conduct a functional behavior assessment on behalf of defendants on April 30, 2013 in an effort to cooperate with J.L.'s parents. (Id. at 2448, 2599.) The assessment concluded that "[a]gression was observed at extremely low levels in frequency, duration, and intensity" and "[b]ehavior does not appear to be impeding [J.L.'s] learning." (Id. at 388, Functional Behavior Assessment.) Scott recommended that J.L.'s parents seek out behavior services at home because it was clear from a comparison of Y.L.'s reports and classroom observation that J.L. was "not displaying the same pattern of behavior at school." (Id. at 389.) The assessment found that a positive behavior support plan was not needed. The assessment therefore provides further evidence that additional functional behavior assessments were not necessary in the 2013-2014 school year.
Accordingly, the court finds that the preponderance of the evidence supports the ALJ's finding that defendants did not deny J.L. a FAPE by failing to conduct additional functional behavior assessments.
C. Parental Rights to Observe and Participate in Student's Educational Decision Making Process
The parents of a child with a disability have a right to be a member of the IEP team and to participate in meetings respecting the identification, assessment, and education placement of their child. 20 U.S.C. § 1414(d)(1)(B)(i); Cal. Educ. Code §§ 56304, 56342.5. "Among the most important procedural safeguards are those that protect the parents' right to be involved in the development of their child' s educational plan." Amanda J . ex . rel . Annette J ., 267 F.3d at 882. To accomplish the IDEA's goal of providing all children with disabilities a FAPE, it is critical that the parents, the "individuals who have first-hand knowledge of the child's needs and who are most concerned about the child, " be involved in the IEP creation process. Id . at 891.
1. Quarterly Progress Reports on IEP Goals
The IEP must include a description of how the child's progress toward meeting the annual goals will be measured and when periodic reports on the child's progress will be provided, such as through the use of quarterly or other period reports. 20 U.S.C. § 1414(d)(1)(A)(III). Plaintiffs claim that they did not receive quarterly progress reports and, as a result, Y.L. was prevented from meaningfully participating in IEP meetings. The evidence demonstrates, however, that the ALJ was correct in finding that defendants provided plaintiffs with quarterly updates on J.L.'s progress in the form of handwritten updates on the Kendall goals, (AR at 1596-1631, 2528-2530, 2577-83), goal update forms, (id. at 1467-93, 2612), or bi-weekly narrative goal updates, (id. at 1712-27, 1735-39, 3572, 4052-54, 4124-25).
2. Observation
Likewise, the evidence supports the ALJ's finding that defendants did not deny Y.L. her parental right to participate in the educational decision making process by requiring her to drop off and pick up J.L. from the driveway, rather than directly from the classroom, and limiting Y.L.'s observation of J.L.'s classroom. Plaintiffs first argue that Y.L. was treated unequally because other parents were allowed to drop off and pick up from the classroom on a daily basis and she was not. (Id. at 2543.) Defendants made clear, however, that while they previously allowed classroom drop off/pick up, the security policy changed and parents are all now required to drop off and pick up students in the driveway. (Id. at 498, Veritas Handbook, 2768.) Further, it is difficult to conceive how the drop off and pick up location relates to Y.L.'s rights to observe her child's classroom.
Plaintiffs also argue Y.L. was prevented from observing J.L.'s classroom even when she made requests to observe ahead of time. The Veritas handbook provides that parents may only visit a child's classroom if it is "arranged in advance with the teacher." (Id. at 498.) It further states that there "are times when testing is taking place or other activities that may make visiting an inappropriate distraction or that would disrupt instruction." (Id.) Y.L. argues that defendants retaliated against her advocacy work on behalf of J.L. by applying a more strict observation policy to her than other parents. (Pls.' Mot. for Summ. J. at 39.) Veritas staff's persuasively testified, however, that they attempted to comply with Y.L.'s observation requests but had to limit visitation periods to an hour to avoid disrupting the classroom and that they sometimes could not accommodate Y.L.'s requests because she did not provide them with enough advanced notice. (AR at 3176, 3239-42.)
Accordingly, the court must find that defendants did not interfere with Y.L.'s parental rights by requiring her to comply with its drop off/pick up and observation policies.
3. Parental Participation in IEP Meetings
"Parental participation in the IEP and educational placement process is central to the IDEA's goal of protecting disabled students' rights and providing each disabled student with a FAPE." Doug C. v. Haw. Dep't of Educ., 720 F.3d 1038, 1040-41 (9th Cir. 2013) (finding the student was denied a FAPE because the parent was denied the opportunity to participate in the IEP meeting). An IEP meeting may be conducted without the parents only if the parents "affirmatively refuse to attend." Id. at 1041 (citation omitted). Id. Accordingly, the ALJ was correct in finding that defendants committed a procedural violation by holding the August 6, 2013 IEP team meeting in Y.L.'s absence. Defendants do not dispute that Y.L. requested to reschedule the meeting and at no time refused to attend. It is no excuse that defendants sought to hold the IEP meeting before the start of the upcoming 2013-2014 school year.
The court need not address defendants' argument regarding whether in light of this finding plaintiffs were the prevailing party for the purposes of attorney's fees as the attorney's fees are the subject of a separate action, Civ. No. 2:14-01364 WBS AC.
Plaintiffs also contend that even when they were included in IEP meetings, defendants ignored the parents' input and thereby denied them their right to participate in the decision making process. While parents must be given an opportunity to meaningfully participate, the education agencies are not required to agree with the parents or to execute their suggestions. See, e.g., J.R. ex rel. W.R. v. Sylvan Union Sch. Dist., Civ. No. S-06-2136 LKK GGH, 2008 WL 682595, at *10 (E.D. Cal. March 10, 2008). Plaintiffs identify examples of how defendants failed to adopt the changes the parents suggested but fail to provide sufficient evidence that defendants refused to consider the parents' input or denied them meaningful participation. In fact, contrary to plaintiffs' position, there is evidence of several instances in which defendants changed their course of action in response to the parents' requests and concerns. For example, defendants agreed to conduct an AAC assessment and a functional behavior assessment at the parents' request. (AR at 193-96, 2448, 2599.) Further, defendants adopted the specific changes requested by J.L.'s parents to J.L.'s first, second, sixth, and thirteenth annual goals and objectives in his October 2, 2013 IEP. (Compare id. at 362-64, Plaintiffs' Letter with Input to Drafted Goals, with id. at 1509-26, Oct. 2, 2013 IEP Annual Goals and Objectives.) Plaintiffs therefore did not establish that defendants failed to consider their input.
D. Adequate Goals
The IEP must include "a statement of measurable annual goals, including academic and functional goals, designed to" both "meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum" and also to "meet each of the child' s other educational needs that result from the child's disability." 20 U.S.C. § 1414(1)(A)(i)(II). "The IEP shall show a direct relationship between the present levels of performance, the goals and objectives, and the specific educational services to be provided." Cal. Code. Regs., tit. 5, § 3040(b).
Plaintiffs contend that defendants failed to offer J.L. adequate goals when he transferred from the Kandall School to Veritas. (Pls.' Mot. for Summ. J. at 46-48.) J.L. had forty operative goals at the Kendall School whereas he had only eighteen offered at Veritas in the October 2, 2013 IEP. (See AR at 1509-26, IEP Annual Goals and Objectives.) Plaintiffs requested that defendants add fourteen additional goals but defendants did not comply. (Id . at 362-64.) Plaintiffs contend this is evidence that defendants failed to set goals sufficient to meet J.L.'s needs.
The evidence, however, supports the ALJ's finding that the goals were adequate. For example, Marie Polk, a board certified behavior analyst who was J.L.'s clinical supervisor at the Kendall School and supervised the Kendall School aides who helped transition J.L. to Veritas, testified that the forty goals implemented at the Kendall School were not all targeted every day. (Id . at 3318-19.) Instead, the Kendall School staff would select priority areas for him and work on the goals in that order. (Id . at 3327.) Further, she explained that the Kendall School goals were distilled into a smaller number of goals when J.L. transitioned to Veritas and that she supported the goals that were ultimately agreed upon by the IEP team at Veritas. (Id . at 3357.) Moreover, aside from J.L.'s parents, none of the witnesses suggested that J.L.'s goals were insufficient.
The record also supports the ALJ's finding that J.L. continued to make progress on his goals after transferring from the Kendall School to Veritas. Dr. Grandison, whom the ALJ found to be not credible as discussed above, and Y.L. were the only witnesses who testified that J.L. regressed while at Veritas. In contrast, Polk testified that J.L. continued to make "slow progress" and to "gain some skills" during the transition months from Kendall School to Veritas that she oversaw. (Id . at 3368.) She represented that J.L. had a similarly slow rate of acquisition while at the Kendall School. (Id . at 3369-70.) Further, the IEP team at Veritas, (id . at 1530), J.L.'s long-term substitute teacher Cynthia Kelch, (id . at 3524, 3571), teacher Cindy Campero, (id . at 3969, 4036-37, 4041-42, 4056, 4060-61), SJCOE instructional assistant Wanda Luis, (id . at 2733), and occupational therapist Kelly Inderbitzen, (id. at 4311-12, 4320-24, 4328), all testified that J.L. was making progress towards his goals.
Accordingly, the court finds that plaintiffs failed to establish that J.L.'s IEP goals were inadequate or that he did not make sufficient progress towards his goals.
E. Adequate Services
1. Fine Motor and Sensory Needs
Occupational therapy is a type of "related service" that can be required in order for a student "to take advantage of the education opportunities" and receive a FAPE. Park, 464 F.3d at 1033; see also 20 U.S.C. § 1401(26)(A).
Plaintiffs argue that the ALJ erred in finding that the Occupational Therapy ("OT") consultations defendants provided in the special day class at Veritas were sufficient and contend that defendants should have provided direct pull-out OT services to address J.L.'s sensory processing, core strength and security, fine motor skills, gravitation insecurity and visual perception issues. (Pls.' Mot. for Summ. J. at 57.) J.L.'s 2012 IEP offered sixty minutes per month of OT consultation and his 2013 IEP offered ninety minutes per month. (AR at 4323-24.)
In finding in favor of defendants, the ALJ carefully explained why he relied more on the report and testimony of defendants' occupational therapist, Kelly Inderbitzin, who recommended OT consultation, than the report and testimony of plaintiffs' occupational therapist, Karen Chaddock, who recommended direct OT. The ALJ found that Chaddock "failed to consider in her analysis that the Veritas special day class integrates OT into its program, and that Veritas staff could implement the recommendations she made in her report without individual OT service." (Id. at 2259.) After reviewing Chaddock's report, the court agrees that Chaddock recommended J.L. "begin an OT clinic experience" and suggested that "[c]linic based OT weekly can enhance his learning experience at school and help prepare him to engage in pre-academics." (Id. at 1372.) Chaddock did not consider the OT programming already in place at Veritas or what sort of OT would be appropriate in the context of J.L.'s school, rather than a clinic.
The ALJ noted that Inderbitzin did not dispute J.L.'s fine and gross motor and sensory processing deficits but rather concluded that he would "benefit from Occupational Therapy consultation and collaboration with the IEP team to help support, modify, or adapt his education programming to optimize successful occupational performance." (Id. at 608.) Inderbitzin testified that the consultative model was sufficient because J.L.'s fine motor and sensory goals could "be worked on in the classroom every day" because the staff "have the knowledge to support the goals." (Id. at 4324.) Based on her knowledge of the Veritas class and staff, she believed J.L. would benefit from working on his goals throughout the day in different contexts, rather than in only the discrete trial context. (Id. at 4317.)
It is clear that the ALJ thoroughly and carefully considered this question and that the preponderance of the evidence supports his finding that direct OT services were not required.
2. Speech and Language Services
The court agrees with the ALJ's reliance on the professional opinions of Brents and the ALJ's finding that J.L. required direct speech and language services, rather than just consultation. (See id. at 2259.) After reviewing J.L.'s IEP documents and conducting three to four hours of testing, Brents, a licensed speech and language pathologist, concluded that J.L. required five, twenty-minute sessions of direct speech and language therapy per week with an additional hour of consultation per month. (Id. at 2375.) She testified that this recommendation was for direct speech services in the school setting, not a clinical setting. (Id. at 2374-75.)
Defendants argue that Brents relied on an improper standard because she suggested that direct speech and language therapy would "help [J.L.] make the greatest gains and most rapidly acquire appropriate speech language and learnings skills" and best meet his needs. (Id. at 491 (emphasis added).) The IDEA does not require schools to provide children with disabilities "the absolutely best or 'potential-maximizing' education" but rather "to provide 'a basic floor of opportunity' through a program 'individually designed to provide educational benefit to the handicapped child.'" Union Sch . Dist . v . Smith, 15 F.3d 1519, 1524 (9th Cir. 1994) (citation omitted); see also Bd . of Educ . of Hendrick Hudson Cent . Sch . Dist . v . Rowley, 458 U.S. 178, 200-01 (1982).
Congress, however, "did not intend that a school system could discharge its duty under the [IDEA] by providing a program that produces some minimal academic advancement, no matter how trivial." Amanda J . ex rel . Annette J ., 267 F.3d at 890 (citation and internal quotation marks omitted). While Brents recommended what she thought would be best for J.L., she also found in both her 2010 and 2013 evaluations that J.L. was "severely delayed in all aspects of communication and requires intervention for speech and language remediation with a qualified speech and language pathologist." (AR at 490, 422.) She expressed "great concern" that he "does not currently have a consistent communication system in the home and school environments." (Id . at 490.) Direct services are, in her opinion, necessary for J.L. to acquire the skills he needs to communicate and to communicate consistently across different environments. (Id . at 491.) Furthermore, while she did not recommend direct services, SJCOE's speech and language therapist, Isabelle Contreras, also recognized J.L.'s severe language deficits and slow progress. (Id . at 846-47, 2977.)
Accordingly, the court finds that the ALJ's order that defendants provide 30 minutes a week of direct language and speech services for the 2014 extended school year and the 2014-2015 school year is supported by the record.
IT IS THEREFORE ORDERED that plaintiffs' motion for summary judgment (Docket No. 30) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that defendants' motion for summary judgment (Docket No. 29) be, and the same hereby is, DENIED. The ALJ was correct in finding that defendants committed a procedural violation by holding the August 6, 2013 IEP meeting without J.L.'s parents and a substantive violation by failing to provide direct individual speech and language services. Defendants are therefore ordered to provide the remedies previously ordered by the ALJ. Dated: June 14, 2016
/s/ _________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE