K.M. v. Tehachapi Unified Sch. Dist.

K.M., Plaintiff, v. TEHACHAPI UNIFIED SCHOOL DISTRICT, et al., Defendants.

Case No.: 1:17-cv-01431 LJO JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

October 20, 2020

ORDER WITHDRAWING FINDINGS AND RECOMMENDATION

(Doc. 89)

FINDINGS AND RECOMMENDATION TO GRANT IN PART THE MINOR'S MOTION TO ENFORCE THE SETTLEMENT AGREEMENT AND TO GRANT ATTORNEYS' FEES

(Doc. 58)

In this litigation, K.M., through her guardian ad litem/mother, sought damages under the Individuals with Disabilities Education Act, the Americans with Disabilities Act, the Rehabilitation Act and the Unruh Act due to being denied a free appropriate public education. In addition to this action, the parties have been engaged in litigation in other cases including, Markham v. Tehachapi Unified School District, Case No.: 1:15-cv-01835 LJO JLT, Markham v. Tehachapi Unified School District, Case No.: 1:18-cv-00303 LJO JLT and Markham v. Tehachapi Unified School District v. Markham, Case No.: 1:16-cv-01942 LJO JLT, as well as an appeal in Markham v. Tehachapit Unified School District, Case No.: 17-15904. The parties resolved the actions, and the Court approved the minor's compromise, settling all of the action simultaneously. (Doc. 48)

Now before the Court is the child's motion to enforce the settlement agreement. The child contends the District has failed to provide many of the benefits of the settlement agreement including not providing "the speech and language consultation support and resultant social skills "lunch bunch" opportunities, and staff training on word-prediction software, i.e., "Google Docs" . . ." (Doc. 58 at 6) Because it appears the District has failed to meet its obligations under the settlement agreement, the Court RECOMMENDS the motion be GRANTED in PART and DENIED in PART.

I. Factual and Procedural History

At the time this action was filed in October 2017, K. M. was a 9-year-old of average intelligence.¹ (Doc. 2 at 2) However, K.M. has autism², which causes her "difficulty with verbal language skills and acquiring socially acceptable means for expressing protest, fear, frustration, anger, desire for something, sadness, or any other emotion. Though she now speaks, she is still "learning to communicate commensurate with her cognitive ability and chronological age." Id. To address these deficits, her pediatrician prescribed Applied Behavior Analysis, the cost of which was covered by the child's health insurance. Id. The student alleged that the defendants denied her these services while at school because the ABA therapist was not an employee or contracted with the school district. Id.

The student alleged that this refusal forced her to choose between receiving the services or attending school. (Doc. 2 at 3) Consequently, she was not able to attend school regularly. Id. at 10. She missed an entire year of school so she could obtain the ABA treatment. Id. The student alleged that by precluding her from receiving the treatment in the school setting, this detracted from the effectiveness of the therapy. Id. The inability to attend school also caused her to fall further behind in her educational pursuits. Id. at 11. In addition, the student asserts that when she was at school, she was subject to unsafe conditions and was provided inadequate supervision. (Doc. 44 at 4-5)

In April 2017, the administrative law judge issued a determination after holding a due process hearing.³ (Doc. 2 at 12-13) The order required the school district to "'hold an [IndividualizedEducational Plan] meeting for the purpose of openly and honestly discussing and considering the ABA prescription and Mother's request that [Defendant] allow [K.M.'s] ABA insurance funded aide to accompany Student on campus. [Defendant] is ordered to provide training to its administrative and special education personnel regarding parental participation in the IEP process under the IDEA.'" Id. at 13. The resulting IEP permitted the student to have the ABA therapist at school beginning in August 2017 but only if the IEP continues to condone it and the right to these ongoing services at school could be terminated at any subsequent IEP meeting. Id.

During the litigation, the parties resolved the dispute. (Doc. 44-1) The settlement terms at issue here include:

D. Speech Services: Speech services will be provided upon recommendation from Karen Schnee in her 2018 report.

i. All goals submitted from Ms. Schnee will be included in KM.'s IEP, via an Administrative Amendment to K.M. 's IBP within 30 days of full execution of this Agreement;

ii. Lunch Bunch (organized group games and activities open to all children) will be used to create opportunities for social skills training in a group for K.M., whose attendance will be facilitated by her TUSD aide, via an Administrative Amendment to KM.'s IEP within 30 days of full execution of this Agreement;

iii. Provided that she agrees to do so, Ms. Schnee will be contracted with annually to review progress in achieving K.M. 's goals and assess whether services need to be adjusted, via an Administrative Amendment to K.M.'s IEP within 30 days of full execution of this Agreement;

iv. Speech services that are not provided one-on-one, will be provided in such a way that typically developing peers are involved. (During PE, Lunch Bunch, or other classes), via an Administrative Amendment to K.M.'s IEP within 30 days of full execution of this Agreement;

E. Assistive Technology: . . . Annually, all staff working with K.M. will be trained on how to use the software recommended by K.M.'s 2016 AT assessment, via an Administrative Amendment to K.M. 's IEP within 30 days of full execution of this Agreement;

9. Independent Oversight. For three years following full execution of this Agreement, Both parties agree to submit any disputes regarding the implementation of this Agreement, to [sic] for 30 days prior to pursuing further due process action. A Neutral shall be selected as follows: Plaintiffs and District shall each nominate a person. The nominees will agree upon and select a third party to serve as Neutral. If that fails, the parties agree to a Neutral selected by the Mediator. If the parties choose to utilize a mediator other than those provided free of charge by the Office of Administrative Hearings through a mediation-only mutual filing, TUSD shall be responsible for paying for the Neutral 's fees, if any.

(Doc. 44 at 10-14) One of the goals from Ms. Schnee's 2018 report included that "K.M. 'participate inone 45 min social skills group or lunch bunch with 3-4 peers total weekly throughout the school year.'" (Doc. 58 at 9)

After the settlement occurred and pursuant to the terms of the agreement, Ms. Schnee "completed a consultation assessment" and determined that in addition to Lunch Bunch, K.M. needed to engage in social skills training in a group setting. (Doc. 58-15 at 1-3) Ms. Schnee concluded, "Social Skills training must be done by a Speech Therapist who has expertise in managing Social Skills Groups. It goes beyond being exposed to various social settings. This is a time for therapeutic intervention!" Id.

Due to disagreement about the implementation of the settlement agreement and after the Court's intervention (Doc. 54), the parties engaged in a second round of mediation. The mediator Retired Judge Stephen Larson, reported to the Court (Doc. 58-17) that during this mediation, the parties agreed to the following in relevant part:

[¶¶]

3. K.M. will be provided "Lunch Bunch" options, referenced in paragraph 4D(ii) of the Settlement Agreement, on or before September 15.

4. K.M., and adult staff working with K.M., will be trained in Google Docs/predictive text on or before September 1, as further provided for in paragraph 4E of the Settlement Agreement.

[¶¶]

7. A Neutral to resolve any further disputes, as described in paragraph 9 of the Settlement Agreement, will be appointed within 10 days of August 16. If the parties are unable to agree on a Neutral, each party will appoint someone and those two individuals will appoint a Neutral. If that is not possible, the parties agree that the Mediator will appoint a Neutral.⁴

II. The Court's Authority

The District argues the Court lacks jurisdiction to consider the motion to enforce the settlement agreement because of the limits placed on the Court's jurisdiction imposed by the Federal Arbitration Act. This argument is flatly disingenuous.

First, there is no arbitration agreement at issue⁵. Rather, as part of the settlement agreement,the parties agreed that future disputes as to the implementation of the agreement would be submitted to mediation.⁶ (Doc. 58-2) Arbitration and mediation are very different processes. Binding arbitration is a legal substitute for court proceedings and trials in court. It allows discovery and presentation of evidence before a neutral who makes findings of fact and law. The outcome is determined by the neutral and is binding on the parties. Mediation is an attempt for the parties to find common ground and to work out their differences without resort to a trial in court. Lynn v. General Electric Co., 2005 WL 701270, at *5 (D. Kan. Jan. 20, 2005). There is no neutral who decides the outcome; rather, whether there is a resolution depends upon the willingness of the parties to compromise rather than the imposition of an outcome by a neutral. Thus, the Court agrees with the analysis of Lynn at *6 that "Congress never intended to encompass the mediation process . . . in the definition of arbitration as used in the FAA. Accordingly, the Court concludes that under the facts presented, mediation does not fall within the purview of 'arbitration' as that term is used in the FAA." See also Del Rey Fuel, LLC v. Bellingham Marine Indus., Inc., 2012 WL 12941956, at *3, n. 18 (C.D. Cal. Apr. 10, 2012). The District argues, without citation to any legal authority, that an agreement to mediate comes within the FAA, and such an argument is absurd.

The Court also rejects the District's argument that it lacks...