Opinion
For Madison Meares, by and through his educational decision maker and mother, Kim Meares, Kim Meares, Plaintiffs: Dan Stormer, LEAD ATTORNEY, Acrivi Coromelas, Hadsell Stormer and Renick LLP, Pasadena, CA.
For Rim of the World Unified School District, Defendant: Vivian Elaine Billups, LEAD ATTORNEY, Vivian E Billups Law Offices, Brea, CA.
Proceedings: Findings of Fact and Conclusions of Law (IN CHAMBERS)
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE.
Before the Court are cross-appeals from the decision of an administrative law judge to grant partial relief in response to the administrative due process complaint initiated by Plaintiffs Madison Meares (" Madison") and Kim Meares (" Meares") (collectively, " Plaintiffs") against Defendant Rim of the World Unified School District (the " District").
I. BACKGROUND
On November 25, 2013, Plaintiffs filed a due process hearing request with the Office of Administrative Hearings (" OAH"). (" Complaint, " AR at 1, Ex. A.) Plaintiffs alleged that the District had failed to provide Madison with a one-on-one aide for his school's mountain-biking team. (Id., AR at 1.) Plaintiffs asserted that the District had thus failed to comply with Madison's individual education program (" IEP") and denied Madison a free and public education (" FAPE"). On December 4, 2013, Meares emailed the OAH with a request that two additional issues be heard. (AR at 7, Ex. E.) On December 13, 2013, Administrative Law Judge Sabrina Kong granted Meares's request to amend Plaintiffs' complaint to include the two additional issues, specifically Plaintiffs' claims that (1) Madison must be assigned a male one-on-one aide, and (2) Madison's IEP requires the District to provide ninety minutes of speech therapy per week. (AR at 18, Ex. H.)
Plaintiffs do not appeal that issue.
Administrative Law Judge Marian Tully (" ALJ Tully") held a due process hearing on February 6, 10, and 11, 2014. (AR at 318-942.) On March 10, 2014, ALJ Tully rendered her decision. (" Decision, " AR at 276-90.) As to the first issue, the ALJ ruled that the District was required to provide Madison with ninety minutes of weekly speech and language therapy but had only been providing Madison with approximately two-thirds of that therapy. (Decision at 2, 10.) ALJ Tully therefore concluded that Madison was entitled to 450 minutes of compensatory speech therapy. (Id. at 14.) Second, the ALJ ruled that the District had provided an adequate one-to-one aide during the 2013-14 school year and was not required to provide a male aide capable of keeping pace with Madison during mountain-biking practice. (Id. at 277-78.) The ALJ transmitted her decision to the parties' attorneys on March 10, 2014 via facsimile as well as overnight mail. (AR at 291.)
On June 6, 2014, Plaintiffs appealed the ALJ's rejection of their argument that Madison must be provided a one-on-one aide capable of keeping pace with him at mountain-biking practice. (" P. Compl., " Doc. No. 1.) On June 10, 2014, the District appealed the ALJ's decision with regard to the speech and language therapy issue. (" D. Compl., " Rim of the World Unified Sch. Dist. v. M.M., EDCV 14-1188-JGB (DTBx) (Doc. No. 1).) The Court consolidated the District's appeal with Plaintiffs' appeal on September 22, 2014. (Doc. No. 19.)
Plaintiffs do not appeal the issue of whether Madison is entitled to a male one-on-one aide. (P. Compl. ¶ 3.)
On December 2, 2014, the District filed its opening brief, (" D. Br., " Doc. No. 24), as did Plaintiffs, (" Pl. Br., " Doc. No. 25). On January 29, 2015, opposition briefs were filed by both the District, (" D. Opp'n, " Doc. No. 32), and Plaintiffs, (" Pl. Opp'n, " Doc. No. 33). The District filed its reply brief on February 5, 2015, (" D. Reply, " Doc. No. 34), and Plaintiffs also filed their reply that same day, (" Pl. Reply, " Doc. No. 35). Neither party requested that the Court hear additional evidence before rendering its decision. The Court heard oral argument from the parties on February 19, 2015. (Doc. No. 36.) The Court ordered each party to file a supplemental brief, addressing the calculation of Madison's speech therapy deficit. (Id.) Plaintiffs submitted a supplemental brief on February 23, 2015, (" P. Supp. Br., " Doc. No. 38), as did the District, (" D. Supp. Br., " Doc. No. 37).
The parties improperly discuss both issues--speech therapy and one-on-one mountain-biking aide--in each of the six briefs submitted to the Court. The parties were apparently unable or unwilling to limit the discussion in each brief to the appropriate issue on appeal.
" [T]he court . . . shall hear additional evidence at the request of a party . . . ." 20 U.S.C. § 1415(i)(2)(C)(ii).
The Court has elected to issue its decision in narrative form because a narrative format more fully explains the reasons behind the Court's conclusions, which aids appellate review and provides the parties with more satisfying explanations. Any finding of fact that constitutes a conclusion of law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a finding of fact is hereby adopted as a finding of fact.
" In bench trials, Fed.R.Civ.P. 52(a) requires a court to 'find the facts specially and state separately its conclusions of law thereon.'" Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986) (quoting Fed.R.Civ.P. 52(a)). " One purpose behind Rule 52(a) is to aid the appellate court's understanding of the basis of the trial court's decision. This purpose is achieved if the district court's findings are sufficient to indicate the factual basis for its ultimate conclusions." Id. (citations omitted). The following constitutes the findings of fact based on the Administrative Record.
Plaintiff Madison Meares is a student at Rim of the World High School within the Defendant District. (AR at 344.) He is on track to receive a certificate of completion (in place of a diploma) and will be a student at the school until he is twenty-two years of age. (AR at 344, 45.) Madison's eighteenth birthday was February 28, 2013. (AR at 339.) On November 9, 2013 Madison executed an " Assignment of Educational Decision-Making Authority" granting his educational decision-making rights to his mother, Plaintiff Kim Meares, and his father, Fred Meares. (" Assignment, " AR at 239.)
Madison was diagnosed with an autism disability as a young child. (AR at 341.) He also takes medication for depression and anxiety. (AR at 343.) He began school at Rim of the World High School in September 2011. (AR at 344.) Pursuant to the Individuals with Disabilities Education Act (" IDEA"), a group of District employees and Kim Meares have developed Individualized Education Plans (" IEPs") for Madison. (See, e.g., " 2010 IEP, " Ex. 11; " 2012 IEP, " Ex. 18.)
A. Madison's September 2, 2010 IEP
Madison's September 2, 2010 IEP includes a 2011 Addendum, which addressed Madison's transition to high school. (" 2011 Addendum, " AR at 188, Ex. 13.) In relevant part, it provides as follows: " Initially, Madison will have a 1:1 aide to help support him throughout the day and for after-school sports. Aide support will be faded as the situation is evaluated. There will be no fading of aide support without an IEP meeting." (2011 Addendum at 4, AR at 188.)
B. Madison's October 2, 2012 IEP
Madison's October 2, 2012 IEP provides, among other things, that the District must provide him with at least ninety minutes of speech therapy per week. (" 2012 IEP" at 2, 8, AR at 203, 209, Ex. 18.)
The " Comments" section of the October 2, 2012 IEP recounts the comments of Scott Craft, the coach of the mountain-biking team, as follows: " Scott Craft spoke as a general education teacher. He stated that Madison is strong cognitively and very compliant. He is enjoyable to have in class and recommends he stay in his class and with biking." (2012 IEP, AR at 202-17.) The Comments Section also summarizes the contents of Madison's Free and Appropriate Public Education (" FAPE") as follows:
200 minutes of specialized academic instruction daily, LSH 90 minutes weekly, Occupational Therapy 20 minutes monthly, Behavior Intervention 30 minutes weekly collaboratively, 20 days of extended school year school, special transportation provided daily throughout the year from 8/20/12 through 6/6/13, a one-on-one aide, specialized courses in ROP and vocational education toward post-secondary plans, and 60 minutes of annual transition planning. He will continue to be assessed for vocational interests and has been offered a supported job through the vocational department.
(2012 IEP, AR at 215 (emphasis added).)
At the top of two pages of Madison's 2012 IEP appears the following bolded statement: " Programs and services will be provided according to when the student is in attendance & consistent with the public school calendar & scheduled services, excluding holidays, vacations & non-instructional days unless otherwise specified." (2012 IEP, AR at 209-10.)
Capitalization is altered for readability. The quotation appears in all-caps in the 2012 IEP.
Madison's mother, Plaintiff Kim Meares, signed the 2012 IEP on October 2, 2012. (2012 IEP, AR at 216.)
C. One-on-One Aide
Charles Purinton acted as Madison's one-on-one aide from approximately November 2011 to October 2013, first as his in-school aide and later also as his mountain-biking aide. (AR at 590, 609-11.) When Purinton began his employment with the District, he was classified as security personnel despite working with Madison as a one-on-one aid. (AR at 610.) Purinton was able to keep pace with Madison during mountain-biking practice. (AR at 598-99.) In October 2013, Purinton returned to general campus security work and ceased to act as Madison's aide. (AR at 614.)
After Purinton ceased to act as Madison's one-on-one aide, Audra Scoppen took over that role but later went on personal and/or medical leave. (AR at 551.) Kim Meares testified at the ALJ hearing that Scoppen had been unable to keep pace with Madison at mountain-biking practice. (AR at 394-95.) At some point, Karen Dougherty was hired to act as Madison's one-on-one aide during mountain-biking practice, continuing in that role until at least the date of the ALJ hearing. (AR at 481-82.) Dougherty stated that, although she had made herself available for mountain-biking practice with Madison since January 15, 2014, Madison never rode with her, and she therefore did not know whether she could keep pace with him. (AR at 483-86.) Dougherty had no prior experience with mountain biking before taking on the role as Madison's mountain-biking aide. (AR at 848-85.)
During mountain-biking competitions, coach Scott Craft rides with Madison. (AR at 246, Ex. 39. AR 441.)
D. Speech Therapy
The evidence presented at the ALJ hearing--specifically the testimony of Madison's speech therapist, Elizabeth Paganini and her records--established that as of the week of January 13, 2014, Madison had received 1260 minutes of speech therapy. (AR at 122-25, Ex. 1; AR at 250-56, Ex. 41; AR at 517-23, 526-27, 530-33.) More specifically, Madison accumulated the following speech therapy during the following weeks:
Week (Monday's date)
Therapy Provided (in minutes)
8/26/2013
0
9/2/2013
0
9/9/2013
60
9/16/2013
60
9/23/2013
60
9/30/2013
60
10/7/2013
60
10/14/2013
0
10/21/2013
0
10/28/2013
90
11/4/2013
60
11/11/2013
0
11/18/2013
70
11/25/2013
0
12/2/2013
60
12/9/2013
80
12/16/2013
60
12/23/2013
0
12/30/2013
0
1/6/2014
65
1/13/2014
145
930 mins.
The evidence presented established that Monday, August 26, 2013 was a staff development day when school was not in session. In addition, two Mondays were school holidays: September 2, 2013 and November 11, 2013. During three weeks, school was not in session: November 25, 2013, December 23, 2013, and December 30, 2013. Madison was absent from school on October 14, 2013.
The testimony from Paganini, in conjunction with her speech therapy logs, did not establish how many minutes of speech therapy Madison received between the week of January 13, 2014 and February 10, 2014, the date when Paganini testified at the hearing. However, Paganini testified that, by the day of her testimony, she had provided 2.5 hours of extra speech therapy to Madison and intended to provide three extra hours of speech therapy to Madison later that same week. (AR at 525-27, 533.)
III. CONCLUSIONS OF LAW
A. Standard of Review
In an appeal from an Individuals with Disabilities Education Act (" IDEA") due process hearing, " 'complete de novo review' of the administrative proceeding 'is inappropriate.'" Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 817 (9th Cir. 2007) (quoting Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001)). " It is well-established that a federal court's review of a state administrative proceeding pursuant to the IDEA must give 'due weight' to the findings and conclusions of the state proceeding." F.K. ex rel. A.K. v. Hawaii Dep't of Educ., 585 Fed.App'x 710, 711 (9th Cir. 2014) (quoting Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). However, " [i]n review of an IDEA due process hearing, courts give 'less deference than is conventional in review of other agency actions.'" J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010) (quoting Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472 (9th Cir. 1993)). Exactly " [h]ow much deference . . . is a matter for the discretion of the court[]." Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987). Even so, the Ninth Circuit has explained that " [d]eference is particularly appropriate where administrative findings 'are thorough and careful.'" Id. (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)). A court properly " treat[s] a hearing officer's findings as 'thorough and careful' when . . . the officer participates in the questioning of witnesses and writes a decision 'contain[ing] a complete factual background as well as a discrete analysis supporting the ultimate conclusions." C.M. ex rel. Jodi M. v. Dep't of Educ., Haw., 476 Fed.App'x 674, 677 (9th Cir. 2012) (third alteration in original) (quoting Park ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1031 (9th Cir. 2006)).
B. Burden of Proof
A reviewing district court must " base its decision on a preponderance of the evidence." 20 U.S.C. § 1415(i)(2). " [T]he party objecting to the IEP's implementation . . . b[ears] the burden of proof at the administrative hearing." Van Duyn, 502 F.3d at 820 (citing Schaffer ex rel Schaffer v. Weast, 546 U.S. 49, 61, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (" The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.")).
However, on review, " the party challenging the administrative decision bears the burden of persuasion on each claim challenged" as well as " the burden of demonstrating that the ALJ's decision should be reversed." J.W., 626 F.3d at 438.
C. Standing
The District briefly argues that Meares lacks the authority to act as the educational decision-maker of Madison and bring this case on his behalf. (D. Br. at 8-9.) The IDEA provides as follows:
If, under State law, a child with a disability who has reached the age of majority under State law, who has not been determined to be incompetent, but who is determined not to have the ability to provide informed consent with respect to the educational program of the child, the State shall establish procedures for appointing the parent of the child, or if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of eligibility of the child under this subchapter.
20 U.S.C. § 1415(m)(2). Thus, although educational rights transfer from the parents to the child when the child reaches eighteen years of age, the statute allows a student to appoint a parent as the student's representative for educational matters. See id. Nothing in California or federal law appears to prohibit the student's voluntary transfer of his or her educational interests to a parent; the District cites to no such provision.
Similarly, California law provides as follows:
Madison turned eighteen on February 28, 2013. (AR at 339.) On November 9, 2013, Madison executed an Assignment of Educational Decision-Making Authority, which transferred the authority to " fil[e] complaints with any public agency" to his parents Kim Meares and Fred Meares. (" Assignment, " AR at 239.) At the OAH hearing, Meares testified that Madison had read, understood, and signed the Assignment. (AR at 335-40.) The District now objects that Madison was not competent to assign his educational interest to his parents. (D. Br. at 8-9.) However, no such testimony was introduced at the hearing; for example, the District did not call Madison as a witness in order to adduce such testimony. The parties do not make clear what State requirements exist for an assignment of educational rights, but the Court has not been presented with any reason to doubt the sufficiency of Madison's assignment. Accordingly, the ALJ correctly concluded that Madison had competently assigned his limited educational rights to his parents. (Decision at 3.)
The District's argument is also somewhat circular. The District argues that Madison was not competent and thus could not assign his educational rights to his parents, but California law states that individuals determined to be incompetent under state law are exempted from the rule that the student's educational rights transfer from the parent to the student when he turns eighteen. See Cal. Educ. Code § 56041.5.
D. Speech & Language Therapy
1. Timeliness of Appeal
Plaintiffs contend that the District's appeal to this Court was untimely. (Pl. Br. at 4-5.) As noted above, the ALJ issued her decision on March 10, 2014. (AR at 276-91.) The OAH's Declaration of Service provides that the decision was served on the parties' counsel on March 10, 2014, by facsimile as well as by overnight mail. (AR at 291.) The District's appeal was filed ninety-two days later, on June 10, 2014. The District's counsel contends, however, that it did not receive the ALJ's decision until March 12, 2014, and that its appeal was thus timely. (D. Opp'n at 6-7; Declaration of Vivian E. Billups (" Billups Decl."), Doc. 32 at 11.)
The IDEA provides that a party challenging an ALJ's decision " shall have 90 days from the date of the decision of the hearing officer to bring such an action, or, if the State has an explicit time limitation for bringing such action under this subchapter, in such time as the State law allows." 20 U.S.C. § 1415(i)(2)(B). California regulations provide that an appeal to a federal district court " shall be made within 90 days of receipt of the hearing decision." Cal. Educ. Code § 56505(k).
In support of its claim of untimeliness, Plaintiffs cite to K.C. ex rel Upland Unified Sch. Dist., No. EDCV 06-1314--VAP (JCRx), 2008 WL 4553212, at *3 (C.D. Cal. Oct. 7, 2008), which concluded that an appeal was untimely because it was filed ninety-two days after the decision was faxed to the parties. However, in that case, " [i]t [wa]s undisputed that Plaintiff 'filed' his appeal ninety-two days after his receipt of the hearing decision." Id. The District, however, disputes that it received the OAH's decision on March 10, 2014. (Billups Decl. ¶ 2.) Instead, counsel for the District states that the " office received the [d]ecision . . . on March 12, 2014." (Id.) Thus the parties disagree regarding when the District received the OAH's decision. The parties have provided no return receipt or facsimile confirmation in order to confirm that the facsimile or mailed copies were received on March 10 or March 11, 2014. Because the relevant timeframe depends upon when the decision was received by the District, and not when the decision was issued by the OAH, an appeal to this Court is untimely only if the District received it before March 12, 2014. Here, there are competing declarations regarding when the decision was received--the declaration of service (AR at 291) and the declaration of Plaintiff's counsel. As such, that date is clearly disputed; without a return receipt or a facsimile confirmation, the Court declines to find that the appeal was untimely filed.
2. Compensatory Speech & Language Therapy
The District appeals the ALJ's conclusion that the District materially failed to properly implement Madison's IEP and the ALJ's award of 450 minutes of compensatory speech therapy. (D. Br. at 2.) The District does not dispute that it is required to provide Madison with ninety minutes of weekly speech therapy and that it fell short of satisfying that requirement during the fall of the 2013-14 school year. (D. Br. at 4-8.) Instead, it challenges the ALJ's calculation of the compensatory speech and language therapy that the District was ordered to provide. (Id.) Moreover, the District argues that the amount of compensatory speech therapy owed is minimal and therefore that the District's violation of Madison's IEP was not material. (Reply at 5.)
First, in its opening brief, the District argues that the ALJ improperly ordered prospective relief by calculating the speech therapy deficit as including hours accumulated between the December 13, 2013, amended complaint and February 6, 2015, the first day of the ALJ hearing. (D. Br. at 6.) Thus the District argues that the total should be a deficit of 5.5 hours and not 7.5 hours. (Id.) However, in its reply brief, the District apparently realizes its error and acknowledges that events prior to the administrative hearing " 'could be used to determine whether the District failed to implement the IEP.'" (D. Reply at 5 (quoting Van Duyn, 502 F.3d at 820).) Because the District has apparently abandoned this argument, it does not require further discussion by the Court.
Second, the District argues that the ALJ improperly broadened the speech therapy issue. (D. Opp'n at 1-2.) Essentially, the District argues that Plaintiffs merely requested enforcement of Madison's IEP and did not suggest that the District had materially failed to implement the IEP. (Id.) The ALJ properly interpreted Plaintiffs' statement that " Madison[']s IEP states that he will receive 90 minutes of speech per week. This is not being fulfilled." (AR at 7, Ex. E.) The ALJ reasonably concluded that Plaintiffs alleged that the District had failed to properly implement Madison's IEP. (AR at 18, Ex. H.) Plaintiffs need not have specifically stated that Madison was denied a FAPE in order to allege that the District had materially failed to implement the IEP. Thus the ALJ properly interpreted, and did not impermissibly broaden, the speech therapy issue presented by Plaintiffs. Cf. J.W., 626 F.3d at 442-43 (holding that ALJ could reframe issues for clarity in way that varies somewhat from how they were stated by student).
Third, the District argues that the ALJ incorrectly calculated the speech therapy deficit that had accrued by the week of the ALJ hearing. (D. Br. at 5.) The Court agrees that the ALJ improperly calculated the speech therapy deficit but not for the exact reasons argued by the District. ALJ Tully first calculated the speech therapy Madison should have received. She noted that school had been in session for twenty-one weeks between the beginning of the year and the first day of the hearing, and that speech therapy had not been required in four of those weeks because of Madison's absence and holidays. (Decision at 10.) Thus she calculated that ninety minutes of speech therapy had been required during each of seventeen weeks, for a total of 1530 required minutes of speech therapy. (Id.) She then stated that Madison had received 1000 minutes of speech therapy during that time but did not explain how she reached that figure. (Id.) The ALJ thus concluded that Madison had not received 530 minutes to which he had been entitled. (Id.)
The ALJ explained that " [a]ccording to the operative IEP, no services were to be provided when a regularly scheduled service fell on non-instructional days or holidays when [Madison] was absent. Therefore, there was no failure to implement the IEP when scheduled services were not provided for those reasons." (Decision at 10.) In their supplemental brief, perhaps finally realizing that the ALJ had miscalculated the speech therapy, Plaintiffs raise a new argument not mentioned elsewhere in their previous briefs. Specifically, they argue that the ALJ erred when interpreting the IEP; Plaintiffs assert that even when a holiday fell on a Monday (the day Madison received speech therapy), the school was required to provide that week's speech therapy on another weekday. (P. Supp. Br. at 4-5.) The Court declines to consider this untimely argument; Plaintiffs did not raise this question of interpretation in their opening, response, or reply briefs, and did not mention it at oral argument, instead raising it only in the short supplemental brief requested by the Court.
The Court calculates the speech therapy somewhat differently. The therapy required and received is summarized in the following table:
The ALJ's discussion of the facts on this point was not particularly " thorough and careful, " and the Court determines that her findings as to the speech therapy deficit are not deserving of deference. Cf. Gregory K., 811 F.2d at 1311.
Week
Date (Monday)
Therapy
Therapy
Therapy
Provided
Required
Deficit
Reason
1
8/26/2013
0 mins.
0 mins.
0 mins.
Monday
staff-development
day
2
9/2/2013
0
0
0
Monday holiday
3
9/9/2013
60
90
30
4
9/16/2013
60
90
30
5
9/23/2013
60
90
30
6
9/30/2013
60
90
30
7
10/7/2013
60
90
30
8
10/14/2013
0
0
0
Monday absence
9
10/21/2013
0
90
90
10
10/28/2013
90
90
0
11
11/4/2013
60
90
30
12
11/11/2013
0
0
0
Monday holiday
13
11/18/2013
70
90
20
14
11/25/2013
0
0
0
Week-long holiday
15
12/2/2013
60
90
30
16
12/9/2013
80
90
10
17
12/16/2013
60
90
30
18
12/23/2013
0
0
0
Week-long holiday
19
12/30/2013
0
0
0
Week-long holiday
20
1/6/2014
65
90
25
21
1/13/2014
145
90
-55
Total
930 mins.
1260 mins.
330 mins.
Thus, through the week of January 13, 2014, Madison had accumulated a deficit of 330 minutes (5.5 hours) of speech therapy. Paganini's records--which she referenced while testifying and which were submitted as trial exhibits--cover the period between Monday, August 27, 2013, the first Monday of the school year, and Monday, January 13, 2014. (AR at 122-25, 250-56.) The evidence is less clear with regard to the amount of speech therapy provided for Madison between the week of January 13, 2014, and the date when Madison's speech therapist, Paganini, testified at the hearing on February 10, 2014. Plaintiffs bore the burden of proof on this issue yet introduced no evidence or testimony as to how much speech therapy was provided between those dates. Accordingly, the Court cannot assume that the deficit increased during that time. In fact, the only testimony as to the speech therapy during that time period is somewhat favorable to the District. Specifically, Paganini testified that the District had already provided 2.5 hours (or 150 minutes) of extra speech therapy to Madison as of February 10, 2014. (AR at 525-27.) Although Paganini did not have any notes to reference or introduce in support of that testimony, (id.), no contradictory evidence was presented at the hearing. Accordingly, the Court concludes that, as of the time of Paganini's testimony, the speech therapy deficit had been reduced by 150 minutes from 330 minutes to 180 minutes.
Paganini also testified that she planned to provide three extra hours of speech therapy to Madison later that week. (AR at 525-27.) However, there is no record of whether that speech therapy ever actually occurred. Thus the Court does not further reduce the deficit by that amount.
Plaintiffs note in their Supplemental Brief that any reduction of the speech therapy deficit occurred after Plaintiffs amended their complaint on December 4, 2013 to include the speech therapy issue. (P. Supp. Br. at 3.) Thus Plaintiffs argue that the amended complaint was the " catalyst" for that change and, as such, Plaintiffs should be considered the prevailing party. (Id. at 3 & n.4.) The Ninth Circuit, however, has held that the Supreme Court's definition of " prevailing party" from Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), applies in IDEA cases. See Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 865 (9th Cir. 2004). Thus, to qualify as a prevailing party, " 'a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned.'" Id. at 865 (quoting Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003)). Moreover, " Buckhannon also held that 'the catalyst theory--whereby a party is considered prevailing so long as he or she can prove that the pending litigation was a catalyst that brought about the policy change--is not a permissible basis for the award of attorneys' fees.'" Shapiro, 374 F.3d at 865 n.6.
In sum, the speech therapy deficit evidenced at the ALJ hearing was approximately 180 minutes or three hours. Thus Madison remained two speech therapy sessions behind schedule. The Ninth Circuit has explained that only a " material failure to implement an IEP violates the IDEA" and that a " material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP." Van Duyn, 502 F.3d at 822. Overall, Madison was only three hours behind in the provision of his speech therapy. It does not appear that such a shortcoming constituted more than a " minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP." Id. at 822. For example, the deficit pales in comparison to the five hours per week of missed math instruction that the Ninth Circuit considered material in Van Duyn. Id. at 823. The District also argues that, because Madison made academic progress -- earning a 3.6667 grade point average, (AR at 807) -- the District's failure to provide some required speech therapy was an immaterial shortfall, (D. Reply at 5). The Ninth Circuit has explained that " the materiality standard does not require that the child suffer demonstrable educational harm in order to prevail." Van Duyn, 502 F.3d at 822. Nevertheless, the student's " educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided." Id. Thus Madison's academic success supports the conclusion that the three hour speech therapy deficit does not constitute a material failure to implement Madison's IEP. The Court therefore REVERSES the ALJ's conclusion that the District materially failed to implement Madison's October 2, 2012 IEP by failing to provide speech therapy.
The Court echoes the Ninth Circuit, however, and emphasizes that " nothing in this opinion weakens [the District's] obligation to provide services 'in conformity with'" Madison's IEP. Van Duyn, 502 F.3d at 822. " IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute--not to decide on its own no longer to implement all or part of the IEP." Id.
E. One-on-One Mountain-Biking Aide
Plaintiffs appeal the ALJ's denial of their claim that the District materially failed to implement Madison's October 2, 2012 IEP by failing to provide a one-on-one aide for mountain-biking practice who could keep pace with Madison. (Pl. Br. at 11-19.) The ALJ held that the implementation of Madison's IEP did not require the District to provide a male one-on-one aide who could keep pace with Madison during mountain-biking practice. (Decision at 277-78.)
1. Mootness
In its reply brief, the District suggests that this issue is moot because Madison is now too old to compete on the mountain-biking team, pursuant to the National Interscholastic Cycling Association (" NICA") rules for student athletes. (D. Reply at 7.) That age restriction provides that, in order " [t]o be eligible to compete in either a spring or fall school-year season, a student athlete must . . . [b]e in high school . . . and be . . . no older than 19 years of age at any time during the entire school year." NICA, 2015 Rules & Guidelines § 6.2, http://www.nationalmtb.org/blog/wp-content/uploads/NICA-Rulebook1.pdf . However, the District has not demonstrated that Madison is barred from practicing with the team because of his age. The issue before this Court is whether Madison's IEP requires a one-on-one aide for practices, and, as such, it does not appear that this issue is now moot.
The Court takes judicial notice of the NICA rules and guidelines because that document is publicly available and capable of accurate and ready determination. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).
2. Issue on Appeal
Both Plaintiffs and the District appear to confuse the issue on appeal to this Court. Only those issues presented to the ALJ may be appealed here. The ALJ framed the issue as follows: " Did [the] District materially fail to implement [Madison's] October 2, 2012 IEP by failing to provide [Madison] [with] a one-to-one aide with the skill and physical ability to keep pace with [Madison] during practices with [Madison's] high school mountain bike team for the 2013-14 school year?" (Decision at 2.) Plaintiffs attempt to transform that issue into a challenge to the sufficiency of the October 2, 2012 IEP; however, that was not the issue raised in Plaintiffs' initial or amended complaints. (AR at 1, Ex. A; AR at 7, Ex. E.)
" The IDEA defines a [FAPE] as 'special education and related services that . . . are provided in conformity with the [student's] [IEP]." Van Duyn, 502 F.3d at 821 (citing 20 U.S.C. § 1401(9)). " [A] failure to implement an IEP may deny a child a [FAPE] and thereby give rise to a claim under the statute." Id. The Ninth Circuit has explained that the appropriate standard for considering whether a school district's implementation of an IEP satisfies the IDEA is whether there has been a " material failure to implement an IEP." See id. at 822. " A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child's IEP." Id.
Accordingly, the issue on appeal is whether the District's failure to provide a one-on-one mountain-biking aide capable of keeping pace with Madison constituted a material failure to implement Madison's October 2, 2012 IEP.
Plaintiffs' arguments regarding 34 C.F.R. § 300.107 and California Education Code § 56345.2 relate to whether the IEP was sufficient, given its lack of a requirement for a one-on-one mountain-biking aide that can keep pace with Madison, as discussed below. Therefore, the Court need not address these regulatory arguments.
3. Requirements of IEP re: One-on-One Mountain-Biking Aide
The parties apparently agree that the relevant IEP is Madison's October 2, 2012, IEP. (P. Br. at 11; D. Opp'n at 4.) That IEP does not state that Madison must be able to participate on the mountain-biking team. (" 2012 IEP, " AR at 202-17, Ex. 18.) Instead, the only mention of mountain biking is in the " comments" section, summarizing the comments of Scott Craft, the coach of the mountain-biking team. (Id. at 13.) The IEP summarizes Craft's comments as follows: " Scott Craft spoke as a general education teacher. He stated that Madison is strong cognitively and very compliant. He is enjoyable to have in class and recommends he stay in his class and with biking." (Id.) The " comments" section also goes on to summarize the IEP, stating that " [a] [FAPE] is being offered as follows . . ." (Id. at 14.) The comments then summarize the minutes per week/month of various educational activities and list " a one-to-one aide" as one component of the FAPE. (Id.) Thus although the 2012 IEP provides for a one-to-one aide, it does not specify that the aide must be provided for mountain biking or even extracurricular activities. Craft's comment constituted a suggestion by a teacher and coach that Madison continue to participate on the mountain-biking team, not as an offer from the district that Madison's 2012 IEP include a one-on-one aide capable of keeping pace with Madison on a mountain bike.
Because Plaintiffs apparently recognize that the 2012 IEP does not specifically provide for a one-on-one aide for mountain biking or even afterschool sports, Plaintiffs point to the 2011 Addendum to the September 2, 2010, IEP. (P. Reply at 5-6.) That addendum planned for Madison's transition to high school and stated that " Madison will have a 1:1 aide to help support him throughout the day and for after-school sports." (" 2011 Addendum" at 4, AR at 188, Ex. 13.) The 2011 Addendum further provided that " Aide support will be faded as the situation is evaluated. There will be no fading of aide support without an IEP meeting." (Id.)
Even if the 2012 IEP meeting did not constitute an IEP meeting that allowed for the revision and/or fading of Madison's one-on-one aide (pursuant to the 2011 Addendum), it remains unclear that a one-on-one aide specifically for mountain biking was required. The 2011 Addendum states that the one-on-one aide be " for after-school sports, " but does not specify that the sport needed to be mountain biking or require that Madison participate on the mountain-biking team. (2011 Addendum at 4.) However, even if a one-on-one aide was required for mountain biking, the district provided such aides. First Charles Purinton acted as that aide, then Audra Scoppen, and then Karen Dougherty acted as Madison's one-on-one aides during mountain-biking practice. (AR at 481-83, 551, 590.)
Plaintiffs object that the aides, other than Purinton, are not qualified to act as Madison's one-on-one aide during mountain-biking practice because they are not able to keep pace with Madison. (P. Br. at 19.) Specifically, Plaintiffs argue that Meares should select the aide to ensure that the aide is qualified. (Id.) In support, Plaintiffs analogize to a single OAH decision, which held that a one-on-one aide was insufficient where that person had not been " appropriately or adequately prepared or trained to provide educational instruction and services to Student as required in her [behavior intervention plan]." Mother on Behalf of Student v. San Bruno Park Sch. Dist., Case No. 2008040327 (OAH July 10, 2008), http://www.documents.dgs.ca.gov/oah/seho_decisions/2008040327.pdf . That case, however, is neither binding nor analogous. Plaintiffs do not argue that Madison's one-on-one biking aides did not receive adequate training or instruction, only that they were not physically able to keep up with him. The Court questions how far Plaintiffs' logic might be extended; if Madison was the preeminent mountain biker in Southern California, would the District be required to somehow locate a biking aide to keep pace? Plaintiffs do not quibble with the aides' other qualifications, including their qualifications to manage Madison throughout the school day. Accordingly, the aides provided were sufficiently qualified to act as Madison's biking aide; that they were not physically able to keep pace is a separate matter.
Even if the aides' inability to keep pace with Madison is viewed as a failure to comply with Madison's IEP, that failure is immaterial. The District provided aides ready and willing to act as Madison's biking aides; that Madison might be required to slow down and allow them to keep pace is only a minor aspect of providing the aides. Doing so would allow Madison to participate on the team and allow the aide to provide the necessary safety precautions.
Accordingly, Plaintiffs have not satisfied their burden of demonstrating that the ALJ erred by denying their request for a mountain-biking aide able to keep pace with Madison.
4. Contractual Arguments
Plaintiffs raise a vague contract or estoppel argument. They contend that, even if Madison's IEP does not explicitly provide for a one-on-one mountain-biking aide, " Madison is still entitled to a mountain bike aide as part of an implicit agreement, " specifically based on the fact that the District has otherwise agreed to provide such an aide. (P. Br. at 15-16.) However, " [t]he IEP is entirely a federal statutory creation, and the courts have rejected efforts to frame challenges to IEPs as breach-of-contract claims." Van Duyn, 502 F.3d at 820. Thus Plaintiffs' efforts to frame it as a quasi-contract or " an informal agreement" also fail. The IEP does not specify that the one-on-one aide would be for mountain biking and that the person must be able to keep pace with Madison. Accordingly, Plaintiffs' " contractual" arguments also fail.
In sum, the Court AFFIRMS the ALJ's decision that Plaintiffs fell short of demonstrating the District's material failure to implement Madison's October 2, 2012 IEP by providing a mountain-biking aide who could not keep pace with Madison.
F. Attorneys' Fees
In addition to other relief sought, Plaintiffs request attorneys' fees for counsel's efforts at the due process hearing and in this appeal. (Pl. Br. at 19.) Because the Court reverses the ALJ's decision that Plaintiffs were the prevailing party on the speech therapy issue and affirms the ALJ's decision that the District was the prevailing party as to the mountain-biking-aide issue, the Court concludes that Plaintiffs are not entitled to attorneys' fees. Cf. Van Duyn, 502 F.3d at 825.
IV. CONCLUSION
For the foregoing reasons, the Court REVERSES IN PART and AFFIRMS IN PART the ALJ's decision. The Court concludes that the District did not materially fail to implement Madison Meares's October 2, 2012 IEP through its provision of either speech therapy or a one-on-one mountain-biking aide. The Court will enter judgment in accordance with this order.
IT IS SO ORDERED.
JUDGMENT
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD :
Pursuant to the Order filed herewith, IT IS ORDERED AND ADJUDGED as follows:
(1) The Court AFFIRMS the Administrative Law Judge's decision that Defendant Rim of the World Unified School District (the " District") did not materially fail to implement Plaintiff Madison Meares's October 2, 2012 Individualized Education Program through the District's provision of a one-on-one mountain-biking aide; and
(2) The Court REVERSES the Administrative Law Judge's decision that the District materially failed to implement Plaintiff Madison Meares's October 2, 2012 Individualized Education Program through the District's provision of weekly speech therapy.
In accordance with the Order issued herewith, Judgment is entered in favor of Defendant Rim of the World Unified School District on both issues appealed to this Court from the Administrative Law Judge's March 10, 2014 Decision.
When an individual with exceptional needs reaches the age of 18, with the exception of an individual who has been determined to be incompetent under state law, the local educational agency shall provide any notice of procedural safeguards required by this part to both the individual and the parents of the individual. All other rights accorded to a parent under this part shall transfer to the individual with exceptional needs. The local educational agency shall notify the individual and the parent of the transfer of rights.