Opinion
Civil No. 04cv 1866-LAB(NLS).
January 6, 2006
REPORT AND RECOMMENDATION re PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Alex White, by and through his conservator, Cosme Colon ("Colon"), brought this action pursuant to Title 20, United States Code, section 1415(i)(2), of the Individuals with Disabilities Education Act ("IDEA"). Plaintiffs seek judicial review of a decision by a hearing officer for the California Special Education Hearing Office who determined defendants complied with the IDEA by providing Alex with a free and appropriate public education. Before the Court is plaintiffs' Motion for Summary Judgment. In their Motion, plaintiffs contend judgment should be entered in their favor because the hearing officer's determination was erroneous for various reasons. Both defendant San Diego County Office of Education ("San Diego COE") and defendant California Children's Services ("CCS") have opposed plaintiffs' Motion. Defendants argue the hearing officer's decision should be upheld because it is supported by a preponderance of evidence and because they complied with the substantive and procedural requirements of the IDEA. Plaintiffs also filed a Reply to defendants' opposing papers. For the reasons outlined below, it is recommended the district court DENY plaintiffs' Motion for Summary Judgment.
Background
The IDEA and its implementing regulations provide federal funding to assist state and local agencies in educating children with disabilities. 20 U.S.C. § 1400(c) (West 2004). One of the primary purposes of the IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A) (West 2004). To ensure that a child receives a free appropriate public education ("FAPE"), local educational agencies must comply with both the procedural and substantive requirements of the IDEA. Under the IDEA, local educational agencies must develop for each disabled child an individualized education plan ("IEP"), including a written statement setting forth the child's current level of performance, annual goals, and the methods of achieving those goals. 20 U.S.C. § 1414(d)(1)(A) (West 2004). Local educational agencies must review a child's IEP "periodically, but not less than annually to determine whether the annual goals for the child are being achieved. . . ." 20 U.S.C. § 1414(d)(4)(A)(i) (West 2004).Plaintiff Alex White was born in 1984 and turned eighteen on February 15, 2002. Alex has been diagnosed with profound mental retardation, cerebral palsy with hypotonia, severe orthopedic impairments, and a seizure disorder. Before he was two years old, Alex was removed from his parents' home and placed in foster care. He remained in foster care until he was accepted into the Friendship Home in 1995. When he was moved to the Friendship Home, he began attending the Friendship School, which is operated by defendant San Diego COE. In 1995, Alex was enrolled in a special education class at the Friendship School taught by Catherine Richman ("Richman"). Alex remained in Richman's class until March of 2002, when he was moved to a different classroom because Richman and her husband, plaintiff Colon, became Alex's legal conservators. Richman worked at the Friendship School through the 2002-2003 school year and then left on medical leave.
Except as otherwise noted, the remainder of the background information in this section was taken from the parties' Joint Statement of Undisputed Fact filed September 12, 2005.
After observing him in his new classroom, Alex's new teacher, Brenda Button ("Button"), determined he could not perform at the same level as he did in Richman's classroom. As a result, an IEP meeting was held on May 24, 2002, and new goals and objectives were proposed for Alex. However, the conservators, Richman and Colon, refused to accept Button's assessment of Alex's skills and declined to approve the proposed goals and objectives, so Alex's prior IEP remained in effect. On October 21, 2002, the conservators requested a due process hearing.
In January and February of 2003, several specialists evaluated Alex in preparation for his annual IEP meeting. An IEP meeting was held on February 18, 2003. The conservators declined to approve the proposed IEP because they disagreed with the goals and objectives, as well as the placement and services being offered to Alex. The IEP team met again on February 21, 2003, March 4, 2003, March 11, 2003, and March 24, 2003. No agreement was reached. During these meetings, the main focus was the parties' disagreements about Alex's needs and abilities in the areas of communication and physical and occupational therapy. The conservators were particularly concerned because they believed Alex had been able to use symbols to communicate while he was in Richman's class but they were being told he was incapable of understanding symbols and could only use concrete items and photographs. In addition, the conservators took the position Alex needed additional, direct services by a speech and language therapist, an occupational therapist, and a physical therapist.
A hearing officer for the California Special Education Hearing Office conducted a lengthy due process hearing in April of 2004. (AR at 3085.) On June 18, 2004, the hearing officer issued a fifty-five page decision concluding Alex had been provided with a FAPE from October 1999 through April 2004. (AR at 3085-3138.) The Complaint is this action, which seeks judicial review of the hearing officer's decision, was filed on September 16, 2004. (Doc. No. 1.) In their Complaint, plaintiffs allege the hearing officer's decision was erroneous for various reasons. Plaintiffs seek a finding the hearing officer's decision was inappropriate, as well as an award of costs and additional equipment and services for Alex.
Discussion
I. Standard of Review.
In a judicial proceeding under the IDEA, a federal court is required to conduct a modified de novo review of the administrative record. Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). The IDEA provides that reviewing courts "shall receive the records of the administrative proceedings," "shall hear additional evidence at the request of a party," and, "basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B)(i)-(iii) (West 2004). Judicial review in an IDEA case thus differs from judicial review in other administrative actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review. Amanda J., 267 F.3d at 887. This does not mean complete de novo review of the administrative decision is appropriate. In Rowley, the Supreme Court cautioned that the "preponderance of the evidence" standard "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." 458 U.S. at 206. Because Congress intended the states to have primary responsibility for formulating each individual child's education, courts must defer to the state's specialized knowledge and experience by affording "due weight" to the decisions of the state's administrative bodies. Id. at 206 (1982). "Due weight" has been described as follows: "The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole." Ojai Unified Sch. Dist. v. Jackson, 4 F3d 1467, 1473-1474 (9th Cir. 1993), quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 792 (1st Cir. 1984). When a hearing officer's order is "especially careful and thorough," a district court may properly give the order substantial deference. Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995).
Rowley involved the Education for All Handicapped Children Act, the name of which was changed to the IDEA in 1990. Education of the Handicapped Act Amendments of 1990, Pub.L. No. 101-476, 901(a), 104 Stat. 1103, 1141-42 (1990).
A reviewing court's inquiry under the IDEA is twofold: The court must first consider whether the state complied with the procedural requirements of the Act, and second, whether the state complied with the substantive requirements of the Act by developing an IEP reasonably calculated to enable the disabled child to receive educational benefits. Rowley, 458 U.S. 206-207; Capistrano, 59 F.3d at 899. "If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." Rowley, 458 U.S. at 207.
"The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." Schaffer v. Weast, 126 S.Ct. 528, 537 (2005). See also Seattle School Dist. v. B.S., 82 F.3d 1493, 1498 (9th Cir. 1996). Thus, plaintiffs bear the burden of proving the hearing officer's decision was inappropriate.
The hearing officer considered whether defendants met the substantive and procedural requirements of the IDEA in four separate time periods: (1) the 1999-2000 school year while plaintiff was in Richman's class; (2) the 2000-2001 school year while plaintiff was still in Richman's class; and (3) the 2001-2002 school year, which plaintiff began in Richman's class but completed after being transferred to Button's class in March 2002; and (4) the 2003-2004 school year, up to the time of the due process hearing conducted in April 2004.
II. Whether the State Complied with the Procedural Requirements of the Act. A. Notice Re Level of Services.
The IDEA defines FAPE to include both "special education and related services." 20 U.S.C. § 1401(8) (West 2004). "The term `related services' means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, . . . orientation and mobility services, and medical services, except that such medical services shall be for a diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education. . . ." 20 U.S.C. 1401(22) (West 2004). Here, there is no dispute Alex is entitled to related services, such as physical and occupational therapy, to assist him in benefitting from his special education. In addition to raising substantive issues involving the level of related services defendants must provide to satisfy their obligations under the IDEA, plaintiffs have alleged defendants failed to follow IDEA notice requirements concerning the reasons for the level of occupational and physical therapy being provided to Alex.
Citing Title 20, United States Code, section 1415(b) and(c), plaintiffs contend Alex's conservators and former surrogate parents were not provided with appropriate written notice of all factors relevant to defendants' refusal to provide direct occupational and physical therapy. However, plaintiffs do not indicate precisely when they believe there was a "refusal" by defendants to provide direct occupational and physical therapy to Alex. Rather, plaintiffs claim the conservators learned for the first time at the due process hearing Alex was provided with occupational and physical therapy services on a consultation basis rather than on a direct basis because it was believed he could not benefit from direct services due to his cognitive abilities and hypotonia. Plaintiffs contend defendants were required by the notice provisions of section 1415 to advise the conservators of their belief Alex could not benefit from direct services during the IEP process, and their failure to do so was a "significant procedural violation" which "constitutes a denial of a FAPE." (Pl.'s Reply, at 14.) Plaintiffs argue as a result of this procedural violation defendants should have been estopped by the hearing officer from asserting Alex lacked the ability to benefit from direct services, and the hearing officer should not have relied on such evidence in reaching her decision.
Alex's former surrogate parents are not involved as parties in this action. Nor does it appear they had any role whatsoever in the underlying due process hearing. Plaintiffs have not cited any evidence supporting their assertion Alex's former surrogate parents were not provided with appropriate notice. As a result, this portion of plaintiffs' argument will not be addressed herein. The record indicates Colon and Richman became Alex's legal conservators in March of 2002. As a result, it has been assumed any notice issues relate to notice allegedly due to the conservators following their appointment in March of 2002.
The hearing officer apparently considered and rejected plaintiffs' procedural argument. In their closing brief submitted to the hearing officer for consideration, plaintiffs argued that prior to the due process hearing defendants had taken a position which seemed "contradictory" — that Alex's needs were being met in the classroom, so he did not need direct therapy. (AR at 3218.) As a result, plaintiffs argued defendants should be equitably estopped from taking the position "Alex could not benefit from the more intensive level of service of direct, one-to-one therapy." (AR at 3218.) Plaintiffs also argued in their closing brief they were entitled to prior written notice of defendants' reasons for denying direct therapy services. (AR at 3218.) However, plaintiffs did not indicate in their closing brief precisely when they believe defendants denied Alex direct therapy services. The hearing officer's decision indicates she was convinced by defense testimony indicating Alex did not have the potential to benefit from an increased level of services in reaching her conclusion the services provided were reasonably calculated to provide educational benefit. Noting the IEP team had access to all reports and evaluations and discussed the level of services to be provided during the IEP process with no objection, the hearing officer found no procedural violations occurred during the relevant school years. (AR at 3103, 3107, 3120-3121, 3131, 3136-3137.)
Essentially, defendants argue plaintiffs' reliance on the cited notice provisions of the IDEA is misplaced. This Court agrees. The notice provisions cited by plaintiffs in section 1415 apply only when a state educational agency "proposes to initiate or change" or "refuses to initiate or change the identification, evaluation, or educational placement of the child. . . ." 20 U.S.C. § 1415(b)(3) (West 2004). When a change is proposed or refused, the required notice must include certain information, including "a description of the action proposed or refused by the agency;" "an explanation of why the agency proposes or refuses to take the action;" "a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;" and "a description of any other factors that are relevant to the agency's proposal or refusal." 20 U.S.C. § 1415(c)(1)-(5) (West 2004). Separate disclosure requirements apply when a due process hearing has been requested. Section 1415(f) states that pre-hearing disclosures must be made "[a]t least 5 business days prior to a hearing. . . ." 20 U.S.C. § 1415(f) (West 2004).
Plaintiffs have not cited any evidence indicating they requested a change to the level of occupational or physical therapy which was refused by defendants without appropriate notice. Nor have plaintiffs cited any evidence establishing defendants proposed to initiate or change the level of occupational or physical therapy services being provided to Alex during the relevant time period without appropriate notice. Alex's IEP dated February 27, 2002, which was written by Richman before she was appointed as Alex's conservator, proposed "OT/PT consult per CCS guidelines." (AR at 2001.) The next IEP dated May 24, 2002, which was written by Button after Alex had been in her class since March of 2002, did propose changes in other areas but the level of proposed occupational and physical therapy was the same as the prior IEP: "OT/PT consult per CCS guidelines." (AR at 2007.) In the IEP dated February 18, 2003, which was written after plaintiffs requested a due process hearing on October 21, 2002, Alex was offered "ten thirty-minute sessions each of direct OT and SP/L per school year (delivery in fifteen-minute sessions if Alex could not tolerate thirty-minute sessions)." (Jt. Statement, at 5; AR at 2014.) Plaintiffs have cited no evidence indicating they did not receive appropriate notice of this proposed change to direct occupational therapy services or the reasons for the proposed change.
Even if plaintiffs could establish defendants failed to provide appropriate notice of a proposed change or a refusal to change the level of occupational or physical therapy being provided to Alex, they would not be entitled to relief. IDEA procedural violations "do not automatically require a finding of a denial of a FAPE." W.G. v. Board of Trustees of Target Range School Dist., 960 F.2d 1479, 1484 (9th Cir. 1992). For a procedural violation to constitute denial of a FAPE, the violation must result in a loss of educational opportunity or seriously infringe the parents' opportunity to participate in the IEP formulation process. Id.
Plaintiffs have not cited evidence which even suggests a failure to provide appropriate notice of a proposed change to or a refusal to change the level of occupational and physical therapy services being provided to Alex prevented the conservators from meaningful participation in the IEP process or resulted in a loss of educational opportunity to Alex. Plaintiffs merely complain they were surprised by defense evidence during the due process hearing. However, plaintiffs do not argue or cite any evidence indicating defendants failed to meet the IDEA's pre-hearing disclosure requirements. Nor does it appear plaintiffs can claim complete surprise as there were ample opportunities for them to question why services were being provided on a consultation basis and why it was believed direct therapy was not necessary. For example, the hearing officer concluded "based on testimony from CCS providers, there was a CCS representative present and there was discussion of CCS involvement and the level of services to be provided at each of the relevant IEP meetings" concerning the 2002-2003 school year. (AR at 3131.) In addition, defendant San Diego COE cites notes of the IEP meeting on February 18, 2003, which specifically state the IEP team considered an evaluation by physical therapist, Sylvia Nielsen, which recommended physical therapy on a consultation basis. These notes state as follows: "Sylvia recommends consultation and details of PT consultation needs to be defined by CCS. In regards to direct PT therapy, Sylvia shared that she does not conclude need of direct therapy as part of her evaluation." (AR at 2410.) In sum, plaintiffs have not met their burden of establishing the hearing officer inappropriately concluded there were no procedural notice violations with respect to the level of physical and occupational therapy provided to Alex. B. Notice Re Program Options
Plaintiff argues he was denied a FAPE because defendants failed to disclose or discuss the existence of other, less restrictive educational opportunities. Plaintiffs believe Alex may have benefitted from more access to non-disabled children, but defendants did not even discuss less restrictive program placement options. Plaintiffs complain the hearing officer at the outset of the due process hearing precluded them from arguing "defendants failed to ensure a continuum of placement options." (Pl.'s Mot., at 18-19.) In this regard, plaintiffs cite to a brief discussion on the record in which the hearing officer expresses confusion as to why it would have been necessary to discuss a full continuum of placement options when there had been no contention the Friendship School was an inappropriate placement for Alex. The hearing officer restricted her decision as follows: "In this case, [least restrictive environment] was not raised as an issue from October 1999 through February 2002, and therefore, it will not be addressed during the analysis of these school years." (AR at 3093 n. 9.)
The hearing officer did consider plaintiffs' argument Alex was "denied an opportunity to socialize with non-disabled members of the community" from March 2002 until the time of the due process hearing in April of 2004. (AR at 3119; 3135-3136.) In her discussion of the end of 2001-2002 school year, the hearing officer noted Alex's IEP stated "he would participate with non-disabled peers during walks and planned events." (AR at 3120.) She then cited testimony concerning the type and frequency of Alex's involvement with the community outside the Friendship School during this time period. (AR at 3120.) Based on the evidence presented, the hearing officer concluded Alex had "an appropriate amount of community involvement considering his health limitations." (AR at 3120.) According to the hearing officer, Button, Richman, and Colon all testified Alex had health problems and could not always be taken out on scheduled outings in the community. (AR at 3120.) For the same reasons, the hearing officer reached the identical conclusion with respect to the following school years. (AR at 3135-3136.)
In their moving and reply papers, plaintiffs seem to be making a much broader argument than the one considered by the hearing officer. Essentially, plaintiffs contend defendants had a duty to discuss and disclose a full continuum of program options in connection with Alex's IEPs in order to ensure he was placed in the least restrictive environment, but the only placement considered was the special day class at Friendship School. Plaintiffs also complain defendants only considered one other special day class when the conservators specifically requested other options in May 2002.
Under the IDEA, IEPs must be reviewed "periodically, but not less than annually." 20 U.S.C. § 1414(d)(4)(A)(1) (West 2004). Plaintiffs did not cite, and this Court could not locate, any controlling authority for the proposition that a school district is required to discuss and disclose a full continuum of program options each and every time an IEP is reviewed. The IDEA does indicate a strong preference for educating handicapped children alongside non-handicapped children in a regular educational environment. However, "[t]he IDEA's preference for mainstreaming is not an absolute commandment." Poolaw v. Bishop, 67 F.3d 830, 836 (9th Cir. 1995). Section 1412(a)(5)(A) of the IDEA only requires mainstreaming "[t]o the maximum extent appropriate," and provides for removal to a special education environment when "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(a)(5)(A) (West 2004). Here, the record is replete with evidence Alex had exceptional needs and health issues strongly indicating an environment less restrictive than a special education day class would have been highly inappropriate.
Under Ninth Circuit precedent, a school district is only required to make a formal, written offer of a single, specific program believed to be appropriate given the range of possibilities and the student's unique needs. Smith, 15 F.3d at 1525-1526. See also Glendale Unified School Dist. v. Almasi, 122 F.Supp.2d 1093, 1107-1108 (C.D. Cal. 2000) (stating that "[o]ffering a variety of placements puts an undue burden on a parent to eliminate potentially inappropriate placements, and makes it more difficult for a parent to decide whether to accept or challenge the school district's offer"). In this case, the record indicates the Friendship School was the only placement offered to Alex during the relevant school years, but other possibilities were discussed in response to a specific inquiry by the conservators in May of 2002.
On the facts as presented, this Court cannot conclude defendants violated the IDEA by failing to disclose or discuss less restrictive program options. Even if plaintiffs could establish a failure to discuss and disclose a full continuum of placement options during the relevant school years was a procedural violation of the IDEA, there is nothing to indicate they would be entitled to relief. Once again, procedural violations "do not automatically require a finding of a denial of a FAPE." Target Range, 960 F.2d at 1484. For a procedural violation to constitute denial of a FAPE, the violation must result in a loss of educational opportunity or seriously infringe the parents' opportunity to participate in the IEP formulation process. Id. Plaintiffs cite no evidence which even suggests a failure to discuss or disclose other options prevented Alex's parents or conservators from meaningful participation in the IEP process. Nor do plaintiffs cite any evidence Alex's placement at the Friendship School was inappropriate or there was another placement which was both appropriate given Alex's unique needs and less restrictive. In sum, plaintiffs have not met their burden of establishing the hearing officer inappropriately concluded there were no procedural violations of the IDEA based on a failure to discuss or disclose a full continuum of program options for Alex.
III. Whether the State Complied with the Act's Substantive Requirements by Developing an IEP That Was Reasonably Calculated to Enable Alex to Receive Educational Benefits. A. Teacher Qualifications.
As plaintiffs contend, the IDEA "specifically incorporates state educational standards into the definition of a FAPE." (Pls.' Mot., at 10.) In pertinent part, the IDEA defines FAPE as "special education and related services that . . . meet the standards of the State educational agency. . . ." 20 U.S.C. § 1401(8)(B) (West 2004).
1. Richman's Credential and Prior Experience.
Citing California Education Code section 44265.6(c) and Leaflet No. CL-808, California Commission on Teacher Credentialing (AR 3158-3159), plaintiff argues he was per se denied a FAPE because he was entitled to a teacher with a Physical and Health Impairments Credential and Richman only had a Moderate to Severe Disabilities Credential. California Education Code section 44265.6 states as follows:
(a) Pupils who are visually impaired shall be taught by teachers whose professional preparation and credential authorization are specific to that impairment.
(b) Pupils who are deaf or hard of hearing shall be taught by teachers whose professional preparation and credential authorization are specific to that impairment.
(c) Pupils who are orthopedically impaired shall be taught by teachers whose professional preparation and credential authorization are specific to that impairment.
Cal. Educ. Code § 44265.5 (West 2005). Leaflet No. CL-808 indicates a Moderate to Severe Disabilities Credential authorizes a teacher to work with students in kindergarten through twelfth grade, as well as adults through age 22, who suffer from "autism; deaf-blindness, moderate to severe mental retardation; multiple disabilities; [and] serious emotional disturbance." (AR 3158.) In addition, Leaflet No. CL-808C indicates a Physical and Health Impairments Credential (PHI) authorizes a teacher to work with individuals from birth to age 22, who suffer from "orthopedic impairment; other health impairment; multiple disabilities; [and] traumatic brain injury." (AR 3169.) Alex's disabilities include orthopedic impairments, and plaintiff interprets section 44265.6(c) to mean he must have a teacher with a Physical and Health Impairments Credential.
The Hearing Officer found Richman was "appropriately qualified" to teach Alex. (AR at 3099.) In reaching this conclusion, the Hearing Officer relied on Leaflet Nos. CL-808 and CL-808C, Education Code section 44265.6, as well as Richman's credential, education, and vast experience in working with disabled individuals. The Hearing Officer also noted Richman testified she had "extensive training" in the areas of occupational and physical therapy. (AR 3099.) As the Hearing Officer suggested, plaintiffs' narrow interpretation of section 44265.6 is untenable because section 44265.6 does not address students like plaintiff with "many impairments." (AR 3099.) Section 44265.6(c) states only that: "Pupils who are orthopedically impaired shall be taught by teachers whose professional preparation and credential authorization are specific to that impairment." Cal. Educ. Code § 44265.5(c). It does not state pupils with multiple disabilities, including orthopedic impairments, must be taught by a teacher with a Physical and Health Impairments Credential. If the legislature intended section 44265.6 to apply to students with multiple disabilities, including orthopedic impairments, it could have said so. As outlined above, Richman's credential authorized her to teach students with "severe mental retardation" and "multiple disabilities." As a result, plaintiffs have not met their burden of establishing the hearing officer inappropriately concluded Richman was qualified to teach Alex. 2. Button's Credential and Prior Experience.
Plaintiffs argue Alex was denied a FAPE because Button only had a Moderate to Severe Disabilities Credential on an emergency basis and did not have professional preparation specific to orthopedic impairments or a Physical and Health Impairments Credential. The Hearing Officer found Button was qualified to teach Alex because she had many years of experience working with severely disabled children, because a Physical and Health Impairments Credential was not necessary under the circumstances, and because her emergency credential authorized her to teach mentally retarded and multiply handicapped children. (AR at 3111-3112.) For the reasons outlined above, the hearing officer appropriately concluded it was sufficient for Alex's teacher to have a Moderate to Severe Disabilities Credential and it was unnecessary for Alex's teacher to have a Physical and Health Impairments Credential. Thus, the only remaining issue related to Button's qualifications is whether Alex was denied a FAPE because Button only had a Moderate to Severe Disabilities Credential on an emergency basis.
Plaintiffs also complain Button's prior "experience as a caretaker for the orthopedically impaired did not prepare her to teach them to make positive gains in their functional skills," and Button's lack of experience "likely worked against" plaintiff. (Pl.'s Mot., at 12.) Although plaintiffs cited to the record in support of these arguments, a review of the cited portions of the record indicate plaintiffs' arguments are speculative at best so will not be addressed in detail.
Plaintiffs acknowledge the holder of an emergency credential is authorized to teach under certain circumstances specified by California law. As defendant points out, a teacher in California can work under an emergency credential so long as the requirements specified in California Education Code section 44300 are met. For example, section 44300(g) requires the holder of an emergency teaching credential to participate in "ongoing training, coursework, or seminars designed to prepare the individual to become a fully credentialed teacher." Cal. Educ. Code § 44300(g) (West 2005). The hearing officer's decision indicates Button was pursuing a master's degree in special education from National University. (AR at 3111.) Plaintiffs do not explain how or why they believe the requirements set forth in section 44300 were not met as to Button. Therefore, plaintiffs have not met their burden of establishing the hearing officer inappropriately concluded Button was qualified to teach Alex. B. One-To-One Instruction.
Plaintiffs argue Alex was denied a FAPE during the relevant school years because he is entitled to a full day of classroom instruction, as well as instruction on a one-to-one basis, as a result of the severity of his impairments, but he was left alone for an inappropriate amount of time each day due to inadequate classroom staffing. While Alex was in Richman's class, Richman had between seven and ten students, and she was assisted by one or two classroom aides. (AR at 954, 3099.) Citing Richman's testimony, plaintiffs contend Alex and his classmates all needed to be taught on a one-to-one basis in order to learn, but the physical caretaking needs of Alex and his classmates consumed a significant amount of the school day. For example, most of the students required assistance in toileting. For reasons of safety, both a teacher and an aide had to assist each time a student needed to use the toilet. Each time a student needed to use the toilet, it took twenty to twenty-five minutes. Richman also testified approximately one hour per day was spent diapering students who could not use the toilet. (AR at 1227.)
With respect to the school years Alex was in Richman's class, the hearing officer found he did not need a one-on-one aide in the classroom. The hearing officer also found Alex's placement in Richman's class was designed to meet his unique needs and was reasonably calculated to provide him with educational benefit. (AR at 3099-3100.) The hearing officer reasoned there was an absence of evidence Alex lacked appropriate attention or needed additional help while he was in Richman's class. (AR at 3099-3100.) To support her decision, the hearing officer cited the low student-teacher ratio and testimony from the record indicating Alex frequently received individual attention during classroom time and was able to learn. (AR at 3099-3100.) The hearing officer also cited Alex's IEPs, which were drafted by Richman, all indicating Alex made progress each school year. In her decision, the hearing officer also noted Richman stated as follows in IEP documents: "[s]tudent's disability requires one-on-one teaching which is best met in a structured special day class setting." (AR at 3099-3100.)
Plaintiffs further argue Alex needed one-to-one instruction while in Button's class as documented in his IEP, but Button was indifferent and insensitive toward this need. For example, plaintiffs suggest Button was not responsive to Alex's attempts to communicate in her class, and he needed "the reinforcement of someone paying attention and responding to him" in order to develop his communication skills. (Pl.'s Mot., at 15.) The hearing officer concluded "there was no evidence to suggest Alex needed the assistance of a one-on-one aide." (AR at 3113.) To support her decision, the hearing officer cited the low student-teacher ratio. Button had seven students in her classroom and had the assistance of one full-time aide and one part-time aide "which provided a one-to-two staff to student ratio for half of the day." (AR at 3113.) In addition, the hearing officer cited evidence Richman "developed Alex's IEP in February 2002 and never suggested Alex needed additional help within the classroom." (AR at 3113.) As further supporting evidence, the hearing officer referenced concerns expressed by Button and other staff members indicating a one-on-one aide would not be beneficial for Alex. Button testified Alex had been provided with a one-on-one classroom aide "from January 2003 through the present due to a mediated agreement in early 2003." (AR at 3113.) It was Button's opinion Alex very quickly became too dependent on and attached to the one-on-one aide, and as a result, would not work with anyone else and "became unable to wait his turn." (AR at 3113.) According to the hearing officer, other staff documented similar concerns in Alex's March 24, 2003 IEP. (AR at 3113.) The hearing officer also found convincing the opinion of Anita Macy, a speech and language pathologist, who testified Alex "did not need a one-on-one aide because he would benefit from working with a variety of people in the classroom." (AR at 3113.)
This Court's independent review of the record indicates the overwhelming weight of the evidence supports the hearing officer's determination a one-on-one aide was not necessary for Alex to benefit from his education. In addition to the evidence cited in the hearing officer's decision, testimony by Richman and Button showed Alex received an appropriate level of one-on-one instruction during the school day, and both teachers were able to spend a significant portion of the day attending to his individual needs. In addition, the record strongly indicates Alex was able to learn in this environment and made progress during each of the relevant school years. ( See, e.g., AR at 234, 247, 253, 258, 268, 273-282, 960-995, 1141-1156, 1157-1169, 1176-1199, 1204-1207, 1214-1221.) Plaintiffs' moving and reply papers indicate a mere disagreement with the hearing officer's determination. Plaintiffs have cited no evidence establishing the hearing officer wrongly or unreasonably determined Alex was denied a FAPE because he was not given a one-on-one aide in the classroom. As defendant points out, Richman testified she thought all of her students needed a one-on-one aide. Essentially, her position, and that taken by plaintiffs in this case, is that Alex should have been provided with a one-on-one aide so he could have made more progress each year. However, this position is at odds with controlling Supreme Court precedent. The Supreme Court has clearly stated the IDEA does not require the states to provide specialized education services to handicapped children which are "sufficient to maximize each child's potential." Rowley, 458 U.S. at 198. Rather, states must provide "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Id. at 201. In sum, plaintiffs have not met their burden of establishing the hearing officer inappropriately concluded Alex did not need a one-on-one aide in his classroom to benefit from his education.
C. Communication. 1. IEP Goals and Objectives.
For the earlier years at issue, 1999-2000 and 2000-2001, Richman set communication goals for Alex and represented Alex was able to meet these goals. When Alex moved to Button's class during the 2001-2002 school year, Button wanted to change Alex's communication goals to reflect a lower level of functioning because she was unable to get him to perform at the same level as Richman. Plaintiffs argue the hearing officer's determination he received a FAPE for all of the relevant school years is inconsistent because Richman and Button could not both be right about Alex's communication goals. Plaintiffs contend only one of them could have been right in their assessment of Alex's communication skills and in developing appropriate goals based on those skills. If, on the one hand, Button was correct in her assessment Alex functioned at a lower level, plaintiffs argue Richman's goals must have been inappropriate because they would have been too high. If, on the other hand, Richman's higher goals were appropriate, plaintiffs argue Button's lower goals were inappropriate because Alex was functioning at a higher level.
Defendant San Diego COE contends plaintiffs' argument is too simplistic and fails to consider the complex nature of Alex's disabilities and health problems. Defendant San Diego COE believes plaintiffs have wrongly assumed a student such as Alex, who has such a broad array of profound disabilities, would make steady and uninterrupted progress and would "be seen in exactly the same light by every educational professional who evaluated him." (Def.'s Opp'n, at 18.) According to defendant, plaintiffs' argument boils down to a difference of opinion over Alex's capabilities, and such a difference of opinion is not enough to establish he received inappropriate educational services from either of his teachers.
The hearing officer determined the goals set by both Richman and Button were appropriate at the time they were developed because they were designed to meet Alex's unique needs and to provide him with educational benefit. (AR at 3109, 3116.) Her conclusions were based on witness credibility and a number of other factors. The hearing officer found the conservators were not entirely credible and "had unrealistic expectations of Alex's abilities and their objectivity was clouded by the seven years during which Ms. Richman worked with Alex in her classroom." (AR at 3117.) She found credible Button's testimony she and her aides worked diligently on the goals and objectives written by Richman and carefully charted Alex's progress before reaching the conclusion Alex's goals and objective needed modification. (AR at 3112-3117.) Because the conservators did not agree with the goals and objectives in the IEP written by Button and refused to sign the IEP, the hearing officer found they were not implemented, and the staff at Friendship school continued to implement the goals and objectives in the earlier IEP written by Richman. (AR at 3119.)
This Court's independent review indicates there is a preponderance of evidence to support the hearing officer's determination the goals set by both Richman and Button were reasonable and appropriate at the time they were developed. A preponderance of evidence in the record does explain why Richman set higher goals and objectives than Button, and these reasons do not necessarily mean one teacher was entirely wrong and the other was entirely right. The evidence indicates a combination of factors, some or all of which, caused Richman and Button to have very different opinions about Alex's capabilities. First, there is some evidence suggesting Richman may have exaggerated Alex's accomplishments in the area of communications. ( See, e.g., AR at 650-652; 719-732; 738-741; 756; 1063-1070.) Although this may have been the case to some degree, there is also persuasive evidence Alex made impressive progress in a number of areas while he was in Richman's class, and this, in part, explains and justifies her confidence in Alex's capabilities, and her opinion higher goals and objectives were appropriate for Alex.
Second, the record demonstrates and the parties essentially agree Alex regressed when he was moved to Button's class. Plaintiffs contend Button's alleged lack of teaching skills and experience is entirely to blame for this regression. The reason plaintiffs have blamed Button for Alex's regression is fairly obvious based on the testimony of several witnesses, including Richman, Button, Gene Gallegos, who is the Friendship School's principal, and Jorge Ley, who works as a psychologist for the Friendship School. Alex was in Richman's class for a long time, approximately seven years, and it is apparent she developed a special relationship with him which caused her to be willing to pursue and accept the role of Alex's conservator, which is akin to that of a parent. Consistent with her special relationship with Alex, Richman was very concerned about his well being, and this appears to have been the source of some tension which developed between Richman and Button when Alex moved to Button's class. Button was a new teacher, and Richman wanted to make sure Alex received the same level of attention and educational services he received while in her classroom. Richman felt Button was not responsive to her advice and concerns. Button complained to the school's principal, Mr. Gallegos, that Richman was intrusive, and this only served to increase the tension. More fuel was added to this simmering pot when Button later concluded she could not implement the goals and objectives written for Alex by Richman because Alex was unable to perform at the level previously reported by Richman, which suggested Richman had exaggerated Alex's abilities and accomplishments.
Despite plaintiffs' unwavering arguments to the contrary, this Court's independent review of the hearing transcripts demonstrates it is much more likely Alex regressed for reasons unrelated to Button's abilities. For example, there was evidence suggesting Alex's behavior and participation in class deteriorated when he moved to Button's classroom because he was recovering from back surgery and often did not feel well and because he was having difficulty adjusting to the change to a new classroom and to new teachers. In this regard, witnesses testified that Alex was aware of his environment in spite of his cognitive deficits, that he responded differently to different people, and that he tended to become very attached to and dependent on an attentive teacher. ( See, e.g., AR at 232-234; 247-248; 252; 273-284; 725-726; 741; 786-787; 860; 897-901; 914; 930-933.)
Third, there was testimony by several witnesses indicating Alex's abilities are difficult to assess and a number of variables can affect his responses to prompts at any given time. Plaintiffs own expert, Susan Berkowitz, acknowledged there were a number of reasons which could explain why different people would not have the same opinion about Alex's capabilities. When she was asked whether she was surprised by the discrepancies in the assessments of Alex, Berkowitz said: "[N]ot necessarily . . . [W]ith kids like Alex there is frequently a lot of inconsistency . . . both in their response patterns in general from day to day . . . [,] their responsiveness to — to different people which is just a well documented thing in the literature. . . . [T]hen all the variables I spoke about the other day in terms of how materials are presented — what cues are given . . . all of those kinds of things influence so there can be a lot of variability in — in what — what kinds of responses one gets." (AR at 786.) In her testimony, Button explained, for example, Alex is using a switch in her classroom to operate a computer program designed to increase vocabulary. Sometimes Alex hits the switch at appropriate times. Other times he hits the switch at inappropriate times. Because there are other variables, such as motivation and energy, it is very difficult to assess just how well he understands cause and effect. (AR 1151-1152.)
Regardless of the reason Richman and Button had different opinions of Alex's capabilities, the hearing officer was justified in concluding the different goals and objectives recommended by Richman and Button were appropriate at the time they were developed. The hearing officer found Button was a credible witness and a qualified teacher who was sensitive to Alex's unique needs, and a review of her testimony supports the hearing officer's conclusions in this regard. Button's testimony about Alex's capabilities following the transition was supported by data collected in her classroom over a reasonable period of time. Essentially, the dispute over the difference between goals and objectives set by Richman and Button boils down to one over methodology. Button's approach to Alex's poor performance following the transition to her class was to lower his goals and objectives. Alex's conservators were unwilling to accept regression and believed Alex could still perform at a higher level if the status quo was maintained. In other words, they simply had a different opinion and were in favor of continuing the higher goals written by Richman while she was his teacher. These two approaches are simply different, and there is nothing to establish one approach was entirely wrong and the other was entirely right. Both approaches satisfy IDEA standards because they were reasonably calculated to confer meaningful educational benefit upon Alex. See Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (directing courts to evaluate an IEP's "goals and goal achieving methods at the time the plan was implemented and ask whether these methods were reasonably calculated to confer" meaningful educational benefit to the disabled child and not to evaluate an IEP in hindsight.) "[P]arents, no matter how well-motivated, do not have a right . . . to compel a school district to provide a specific program or employ a specific methodology in providing for the education of their handicapped child." Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1988), citing Rowley, 458 U.S. at 207. Accordingly, plaintiffs have not met their burden of demonstrating the hearing officer inappropriately concluded the communication goals and objectives set by both Richman and Button met IDEA standards at the time they were developed.
2. Direct Therapy vs. Therapy on a Consultation Basis.
Plaintiffs contend Alex was denied a FAPE because he needed but did not receive direct occupational, physical, and speech and language therapy. Plaintiffs also argue his classroom teachers, Richman and Button, lacked the necessary state certification, licensing, registration, and other comparable requirements to provide him with these services. In addition, plaintiffs claim the hearing officer reached an erroneous conclusion concerning Alex's need for direct therapy by misstating and improperly dismissing expert testimony.
The hearing officer found Alex did not need direct physical, occupational, or speech and language therapy during any of the relevant schools years because the provision of these services on a consultation basis was sufficient to meet Alex's unique needs. The hearing officer examined each of the relevant school years separately. Her written opinion is thorough and well reasoned, and it includes numerous references to evidence in the record. Her determination was in part based on the testimony of several expert witnesses and on a lack of evidence indicating direct services were necessary for Alex to receive educational benefit. (AR at 3094-3098; 3100-3101; 3110-3111; 3114-3117; 3123-3125; 3128-3130; 3133-3135.)
a. Direct Physical and Occupational Therapy.
Plaintiffs claim the hearing officer relied heavily on the testimony of defense expert Dr. Henry Chambers to reach her conclusion Alex lacked the ability to benefit from direct physical and occupational therapy, but, in reality, Dr. Chambers's testimony was favorable to plaintiffs' position. Plaintiffs also argue the hearing officer incorrectly represented and improperly dismissed the testimony of plaintiffs' expert, Dr. Ardith Williams-Meyer, who testified Alex could benefit from direct physical therapy. According to plaintiffs, the hearing officer dismissed testimony by Dr. Meyers for three main reasons. First, plaintiffs claim Dr. Meyer's testimony was dismissed because she allegedly misquoted a study to support her assertion decreased mental ability does not prevent a child from learning to walk. Plaintiffs contend the study properly supported Dr. Meyers' assertion that mental retardation does not prevent a child from learning to walk because the study indicated more than one in ten individuals in the study learned to walk with physical therapy even though they had cerebral palsy and were profoundly mentally retarded.
Second, plaintiffs argue the hearing officer erroneously dismissed testimony by Dr. Meyers because her recommendations were based on "minimal observations" and "a lack of information from those working with Alex." (Pls.' Mot., at 24.) According to plaintiffs, Dr. Meyers' observations of Alex were not minimal but "thorough and lengthy" because she observed him for ten hours in two sessions on separate dates and directly assessed Alex's functional skills for four to five hours and then wrote an eight-page evaluation report. (Pls.' Mot., at 24.) Third, plaintiffs believe the hearing officer erroneously dismissed Dr. Meyers' testimony because she relied almost exclusively on history and statements provided by Richman. Plaintiffs argue this assertion by the hearing officer is "completely without merit and unsupported by the evidence." (Pl.'s Mot., at 24.) In addition, plaintiffs argue the hearing officer should not have considered defense evidence Alex could not benefit from direct services due to his cognitive abilities and hypotonia. In sum, plaintiffs argue the evidence does not support the hearing officer's decision on this issue.
For the reasons outlined above in the section which addresses the procedural issues raised in plaintiffs' Motion, this Court finds it was appropriate for the hearing officer to consider expert testimony on Alex's ability to benefit from direct services in reaching her decision on this issue.
Defendants contend there is a "plethora of evidence" to support the hearing officer's conclusion Alex did not need direct physical and occupational therapy to receive educational benefit. (Def.'s Opp'n, at 25.) According to defendants, plaintiffs have not only mischaracterized Dr. Chambers' testimony but have also ignored other testimony by physical therapists who treated and evaluated Alex and concluded direct services were not necessary. Defendants also argue there were many appropriate reasons for the hearing officer to find Dr. Chambers was a more credible witness than Dr. Meyers.
Based on an independent review of the record, this Court finds plaintiffs' arguments unconvincing and concludes the overwhelming weight of evidence supports the hearing officer's conclusion Alex did not need direct physical or occupational therapy during any of the relevant schools years. The record also supports the hearing officer's conclusion the provision of occupational and physical therapy services on a consultation basis was sufficient to meet Alex's unique needs. During the due process hearing, defendants presented at least five highly qualified, credible expert witnesses who all had varying levels of contact and experience with Alex and who were all essentially in agreement about Alex's ability to benefit from direct physical therapy. Most of these witnesses testified convincingly and in great detail as to why physical therapy on a consultation basis was sufficient to meet Alex's unique needs. ( See, e.g., AR at 358-369; 1019-1062; 1073-1118; 1119-1128.) They also explained persuasively why the physical and occupational therapy Alex does need and does receive can best be implemented on a consultation basis through teachers, aides, and care givers who do not need to be certified, registered or licensed therapists. ( See. e.g., AR at 365-369; 405-415, 418; 683-694; 1019-1062; 1075-1118; 1119-1129.)
Contrary to plaintiffs' argument, the hearing officer did not completely and erroneously dismiss expert testimony by Dr. Meyers. Rather, the hearing officer had legitimate concerns about the reliability of her conclusions because her contacts with Alex were very limited when compared with that of other expert witnesses who testified and because she did not obtain information from highly relevant sources other than Richman, such as Alex's treating physicians, specialists, teachers, and care givers. It would have been erroneous for the hearing officer to rely on Dr. Meyers' conclusions and recommendations given these shortcomings and the overwhelming weight and credibility of opposing expert opinions.
To support their argument Alex's treating physician, Dr. Chambers, offered testimony favoring their position, plaintiffs have simply taken a few statements by Dr. Chambers out of context. Dr. Chambers, who was a defense witness, is and has been Alex's physician for six or more years. (AR at 288.) Dr. Chambers is the chief of staff at San Diego Children's Hospital and a pediatric orthopedic surgeon with very impressive credentials. (AR 286, 287-288, 295.) The pertinent testimony reads as follows:
Mr. Cochrane: [U]nder muscle strength . . . Dr. Meyers indicates Alex's quads were strong enough to assist him in coming from a sitting to standing and maintaining his weight for at least one minute without collapsing. Is that consistent with what you've seen?
Dr. Chambers: I've never seen him do that and also I'm not sure if that means that she's still holding him but he's holding some of his weight. That's usually what I — to be honest with you with Alex I can't imagine that he could do that by himself.
Mr. Cochrane: If that is true would that effect your opinion as to whether or not he has the potential to benefit from physical therapy?
Dr. Chambers: No, not in Alex's case because I — I just think he doesn't have enough trunk support or head support to — and he has this severe apotosis — apotosis that he would not be able to ever — now we're talking about walking independently. If that's — if that's what we're talking about I don't think he will.
Mr. Cochrane: I'm sorry. I'm not talking about walking independently. I'm talking about whether he could benefit from physical therapy at all.
Dr. Chambers: Well once again I — I don't think I said that he would not benefit from physical therapy. I'm just saying as long as the goals are consistent with what I think he can do. . . . And I never — and if the goal is that Alex could be able to stand for two minutes without collapsing on a — using a stander or something then that would be a good goal and physical therapy towards that goal would be okay . . . [B]ut it — it just depends on what you want to do and if your goal is to get him strong in his legs and his trunk that he'll be independently walking I don't think that's a good goal. . . .
* * * *
Mr. Cochrane: [I]s it your opinion that — that physical therapy may be able to help Alex?
Dr. Chambers: [O]nce again it depends on what the goals are. . . . [I]f he's going to be [an] independent ambulator — ambulating no but if there are some functions that, you know, to get him standing, to do more activities with a standing position then that would be a good goal if it would be to — you know, there are a lot of different goals that I could foresee that would be — that could possibly be improved by physical therapy.
Mr. Cochrane: . . . [D]o you believe that physical therapy may be able to help Alex in maintaining functional body positions?
Dr. Chambers: . . . [O]ne of Alex's biggest problems is weakness and not just hypotonia. There's a difference between hypotonia and weakness and he has pretty profound weakness and the only way to improve that weakness is to be able to do some sort of strengthening program. From what I know of Alex he does not have the ability to cooperate with any strengthening programs. . . . [I]f you ask him to do something it might take him — he might never do it or he might take a long, long time to do something. So in order to do a strengthening program he has to be able to participate in some sort of, you know, moving an object or pulling, you know, especially with your trunk there are . . . these big exercise balls . . . but they have to be able to cooperate and have enough balance to strengthen their trunk in that way. So to answer your question it's possible but knowing Alex and his ability to cooperate and his mental capacity that could be fairly unlikely that it would make a huge difference but, you know, like I said I've always thought that . . . with physical therapy if you have a goal that is possibly obtainable that you should try physical therapy for, you know, the period of time that you think is necessary and then reassess it.
* * * *
Mr. Cochrane: . . . [W]hat about occupational therapy?
Dr. Chambers: I think it's a little bit of the same thing. You know, if we set specific goals and if one of the goals is to get Alex to use a fork to eat and whatever those goals are and I'm not even the one — sometimes the parents help set the goals and sometimes the care givers help set the goals and depending on what those goals are then you determine — you know, once again try the physical therapy and see if they can attain those goals. If they're making progress then physical — the occupational therapy continues. If they're not making progress then you say well they cannot attain that goal.
(AR at 314-320.) In sum, Dr. Chambers did not distinguish between occupational or physical therapy on a consultation versus a direct basis, and he did not say Alex needs direct physical or occupational therapy to receive educational benefit. Dr. Chambers merely indicated Alex could possibly benefit from physical or occupational therapy in general if appropriate goals were set. In other testimony, Dr. Chambers also explained a cooperative effort among doctors, physical and occupational therapists, teachers, care givers, and other specialists is necessary to make decisions about the best course of treatment for a patient such as Alex, implying it would be inappropriate to rely on the opinion of only one expert or specialist who evaluated him. (AR at 296-297.)
In support of their position Alex requires direct physical and occupational therapy to benefit from his education, plaintiffs cite a Third Circuit decision, Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988), which they believe "addressed a nearly identical case to Alex's." (Pls.' Mot., at 25.) However, the facts and circumstances of Polk are distinguishable, and the holding in the case does not establish that Alex must have direct physical and occupational therapy to receive educational benefit. Although the student in Polk was severely mentally retarded and had physical impairments similar to cerebral palsy, his capabilities were not as limited as Alex's in that he had "the functional and mental capacity of a toddler." Id. at 173. The plaintiffs in Polk provided fairly convincing evidence during the course of the due process hearing that the student "significantly expanded" his physical capabilities after only two weeks of intensive therapy and that the defendants had a rigid rule prohibiting direct therapy regardless of the individualized needs of handicapped students. Polk, 853 F.2d at 175. The Third Circuit found it would be a violation of the student's procedural right to an individualized program if defendants did indeed have a rigid rule of refusing to even consider providing direct physical therapy to handicapped students. Id. at 177-178. Finding plaintiffs were not given sufficient opportunity to continue their discovery into the existence of a blanket policy against direct therapy services, the Third Circuit reversed and remanded the case for additional discovery and to resolve disputed factual issues. Id. Here, there is no evidence defendants have a blanket policy against direct physical therapy for handicapped students under all circumstances. In fact, the record indicates Alex was provided with direct physical therapy following surgery in an attempt to recover pre-operative skills which appeared to have been lost. These one-on-one sessions with a qualified physical therapist were only discontinued when it became clear they were not making any difference in his functional skills. (AR at 1029-1031.)
The Third Circuit in Polk also examined the standard applied by the district court in granting summary judgment to the defendants and concluded the district court had applied the wrong standard. According to the Third Circuit, the district court had interpreted the standard set forth by the Supreme Court in Rowley to mean that "conferral of any [educational] benefit, no matter how small, could qualify as `appropriate education'" for handicapped students. Id. at 184. Citing Rowley and legislative history, the Third Circuit concluded the educational benefit conferred on handicapped students must be meaningful and more than de minimis. Id. at 184-184. Because the district court had applied the wrong standard, the Third Circuit reversed and remanded the case finding "the extent of the factual dispute concerning the level of benefit [the student] received from his educational program precludes summary judgment. . . ." Id. at 185. While defendants presented testimony by a single licensed physical therapist who concluded a consultative model of physical therapy served the student's needs, plaintiffs produced a significant quantity of contrary evidence suggesting direct physical therapy was necessary to confer more than a de minimis benefit. Id. Plaintiffs' evidence was compelling because it showed the student had been working on some of the same basic skills for years with de minimis progress but made impressive advancements in a short period of time as a result of direct physical therapy provided outside his public education. Id.
In this case, as outlined more fully above, defendants presented several credible experts who testified Alex did not need direct physical therapy to benefit from his education. Plaintiffs only presented one witness in their favor on the need for direct physical therapy, and her opinions were not as credible and reliable as other witnesses because of her limited contacts with Alex and with other experts and specialists who had actually treated and worked with him over the years. In addition, defendants presented testimony by an occupational therapist who persuasively explained why Alex did not need direct occupational therapy to receive educational benefit, and plaintiffs presented no opposing evidence.
In sum, the overwhelming weight of evidence demonstrates the hearing officer correctly determined defendants provided Alex with an appropriate level of physical and occupational therapy in the relevant school years. Plaintiffs have simply not presented the quantity and quality of evidence necessary to establish Alex was denied a FAPE because he needed but did not receive direct occupational or physical therapy. As a result, plaintiffs have not met their burden of establishing the hearing officer's conclusions on this issue are inappropriate.
b. Direct Speech and Language Therapy.
Augmentative communication devices are often used to allow nonverbal students, such as Alex, to communicate with others. (AR at 558-562.) While he was in Richman's class, she developed a series of communication boards for Alex to use to communicate needs and make choices. These communication boards had two or more pictures or symbols on them. She started with a simple communication board with only two pictures and gradually increased the number of pictures on the board. She switched to using some basic symbols once she felt he recognized the pictures. When using the board, Richman would ask Alex a question, such as what would you like to do next, and he would respond by touching a picture or symbol on the board to select his next activity. For example, he might pick the picture or symbol of a radio if he wanted to listen to music. (AR at 958 et seq.) The hearing officer described the communication board being used Alex when he moved to Button's class as "a large laminated mat with twenty-one, two-inch symbols." (AR at 3114.)
Although Richman testified Alex was quite proficient at making choices on his communication board while he was in her classroom, a number of other witnesses were not convinced Alex was actually able to use the board as effectively as Richmond represented. They thought the board was too complex for Alex because there were too many pictures and the pictures were too small so it was difficult to determine what choice he was actually making when he put his hand on the board after being asked a question. This is because his gross motor skills were very limited. He used a palm slap or swat and his hand was bigger than the pictures or symbols on the board so he would hit more than one choice at a time. ( See, e.g., AR at 870; 901-903.) There was also expert testimony suggesting Alex did not actually recognize all of the pictures or symbols on the board. ( See, e.g., AR at 697-699; 901-903.)
Plaintiffs argue Alex should have been provided with direct speech and language therapy after he was moved to Button's class because Button and others lacked training and experience or did not use appropriate teaching techniques so were incapable of getting Alex to perform using the communication board at the same level he had achieved in Richman's class. (Pl.'s Mot., at 29.) Plaintiffs believe Alex regressed and did not progress in his communication skills because Button did not use Alex's communication board correctly or consistently. Plaintiffs also claim Alex's success in Richman's class, as well as the assessment of plaintiffs' expert, Susan Berkowitz, are enough to establish Alex has the cognitive ability to use the communication board if defendants provide him with appropriate, direct instruction. According to plaintiffs, the hearing officer erroneously concluded Berkowitz' assessment of Alex lacked credibility and erroneously relied on untrustworthy testimony by defense witness Eleanor Millman.
The hearing officer concluded Alex was provided with appropriate speech and language services during the relevant time period which were reasonably calculated to provide educational benefit. In making her determination, she stated she was persuaded by testimony from defense experts Anita Macy and Judy Gwinnup but unpersuaded by plaintiffs' expert Susan Berkowitz. (AR at 3115-3116, 3125-3127.) Despite plaintiffs concerns about alleged unreliable testimony by Millman, the hearing officer's decision does not mention her testimony, so it is unclear whether and to what extent she relied on Millman's testimony, and the hearing officer's decision is well supported without reference to any testimony by Millman. With respect to the assessment and recommendations by Berkowitz, the hearing officer stated she was unpersuaded because Berkowitz assessed Alex once for two hours while Richman was present but did not interview any of the staff at the Friendship School who worked with Alex and did not talk to Anita Macy about her assessment. Contrary to plaintiffs' arguments, these are legitimate reasons for finding the assessment and recommendations by Berkowitz to be less credible than the opinions of the other qualified experts and specialists who had worked with Alex on more than one occasion and who had considered important data from other relevant sources.
A review of the record demonstrates there is more than a preponderance of evidence to support the hearing officer's determination on this issue. At least two highly qualified experts who had multiple contacts with Alex over a significant period of time testified Alex did not need direct speech and language services to receive educational benefit during the relevant time period. Steven Oas, a speech and language pathologist who works on a consultative basis for the Friendship School, disagreed with the Berkowitz recommendation Alex should receive direct speech therapy for thirty to forty-five minutes three times a week. Oas explained Alex is working at a very basic level, and his IEP goals can be achieved with the teaching staff in his classroom. When asked whether it would be possible to boost his abilities with intense one-on-one therapy, Oas testified that at Alex's level direct therapy with a trained speech and language pathologist would not be any different from instruction he receives from the teaching staff in his classroom. (AR at 696-701.) Oas indicated he had worked with Alex over a significant period of time prior to the due process hearing and on occasion had worked with Alex as much as three times a week, (AR at 697, 1137.)
Anita Macy, another speech and language pathologist for the Friendship School, first provided consultation services to Alex for two school years while he was in Richman's classroom. Although her services were on a consultation basis, she did have direct, hands on experience with Alex in the classroom during this time period and worked closely with Richman. (AR at 888; 890-891.) Macy explained it is common for her and others like her who provide services on a consultation basis to take a "hands on approach." (AR at 891-892.) In other words, she and others like her work directly with students when they are in the classroom, discuss a student's progress with the classroom teacher, and make recommendations as necessary. (AR at 891-892; 911-912.) Macy also conducted both an informal and a formal assessment of Alex. (AR at 891-894 et seq.) She testified she did not think the direct speech and language therapy recommended by Berkowitz was appropriate for Alex. It was her opinion the consultation approach works well with Alex. She explained that the classroom teacher and aides who work with Alex every day know him the best and that, consistent with similar students, Alex's rate of progress is very slow. As a result, it is best for the speech pathologist to go to the classroom on a monthly basis to assess progress and to offer suggestions and provide feedback to the classroom teacher. She indicated teachers were always encouraged to call her between visits if they had any concerns. (AR at 912, 915, 917.) When working with students like Alex, the speech consultant's role is to solve problems, to provide methodologies and strategies to be implemented by the staff in the classroom, and to review data to determine whether further changes are needed in a child's program. (AR at 918-919.)
In sum, the overwhelming weight of evidence demonstrates the hearing officer correctly determined defendants have provided Alex with an appropriate level of speech and language therapy in the relevant school years. Plaintiffs have simply not presented the quantity and quality of evidence necessary to establish Alex was denied a FAPE because he needed but did not receive direct speech and language therapy. As a result, plaintiffs have not met their burden of showing the hearing officer's decision on this issue was inappropriate.
Conclusion
For the reasons outlined above, it is recommended the district court uphold the hearing officer's decision by DENYING plaintiff's Motion for Summary Judgment and by ENTERING JUDGMENT in favor of defendants. Although defendants have not formally moved for summary judgment, they have argued the hearing officer's decision should be upheld. Neither party has requested that the court consider additional evidence under Title 20, United States Code, section 1415(i). In an IDEA case, a summary judgment motion is merely the "procedural vehicle" for bringing the matter before the Court for decision. Hunger v. Leininger, 15 F.3d 664, 669-670 (7th Cir. 1994). A summary judgment motion in an IDEA case "is in substance an appeal from an administrative determination, not a summary judgment" and the judicial procedure for deciding an IDEA case is more akin to a bench trial on a stipulated record unless the parties request consideration of new evidence pursuant to section 1415(i). Capistrano, 59 F.3d at 892. Where there has been no request for consideration of additional evidence, the district court is entitled to interpret the defendants' opposition to plaintiffs' Motion as a request for judgment in their favor and to decide the matter on the administrative record. See Dong v. Board of Educ., 197 F.3d 793, 798-799 (6th Cir. 1999); Hunger, 15 F.3d at 669-670.
This report and recommendation is submitted by the undersigned Magistrate Judge to the District Judge assigned to this case, pursuant to the provision of Title 28, United States Code, section 636(b)(1). Any party may file and serve written objections to this report and recommendation no later than January 18, 2006. Any reply to objections shall be filed and served no later than January 25, 2006. The parties are advised that failure to file objections within the specified time may affect the scope of review on appeal. Baxter v. Sullivan, 923 F.2d 1392, 1394 (9th Cir. 1991).