L.C. v. Alta Loma Sch. Dist.

389 F.Supp.3d 845

L.C., Plaintiff,

v.ALTA LOMA SCHOOL DISTRICT, Defendant.

Case No.: 5:18-cv-01535-SVW-SHK

United States District Court, C.D. California.

Filed July 18, 2019

Tania L. Whiteleather, Tania L. Whiteleather Law Offices, Lakewood, CA, for Plaintiff.

Jonathan Patrick Read, Maryam Rastegar, Tiffany Marie Santos, Fagen Friedman and Fulfrost LLP, Carlsbad, CA for Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

HON. STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE

I. Introduction

Plaintiff L.C. initiated this action seeking review of the decision of an administrative law judge (the "ALJ") with the California Office of Administrative Hearings ("OAH"), in which the ALJ denied Plaintiff's due process complaint pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA"), filed against Defendant Alta Loma School District (the "District"). See Dkt. 1. In the due process complaint, Plaintiff asserted that the District unnecessarily delayed in bringing its own due process complaint against Plaintiff and his parents; the District's due process complaint had alleged that Plaintiff was seeking an independent vision therapy evaluation, a form of an independent educational evaluation (an "IEE") that the District must offer to students at public expense, from an evaluator of Plaintiff's choice who did not meet the District's requirements under its IEE policy. The District ultimately withdrew its due process complaint shortly before a hearing before the ALJ, and following the hearing, the ALJ ruled that the District did not unnecessarily delay in filing its due process complaint against Plaintiff.

On March 25, 2019, the Court held a pretrial conference to better assess the parties' substantive arguments regarding Plaintiff L.C.'s claim for review of the administrative hearing. Following the pretrial conference, the Court continued the bench trial date and requested supplemental briefing regarding outstanding issues not addressed at the pretrial conference. See Dkt. 50. After the parties submitted their supplemental briefs, the Court vacated the bench trial and took the case under submission. See Dkt. 55.

Having carefully reviewed and considered the administrative record, supplemental evidence presented, and the parties' trial briefs, the Court issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

II. Findings of Fact

The following findings of fact are based on (1) the administrative record for the underlying proceedings before OAH, lodged by Plaintiff on February 14, 2019, see Dkt. 37; (2) the declaration of Tania L. Whiteleather, Dkt. 28-4 ("Whiteleather Decl."), and accompanying Exhibits 1-6, Dkts. 28-5–28-10;¹ (3) the declaration of Maryam Rastegar, Dkt. 43-3 ("Rastegar Decl."), and attached Exhibits A-F; and (4) the declaration of Jonathan P. Read, Dkt. 43-4 ("Read Decl."), and accompanying appendix of exhibits, Dkt. 43-5.²

A. Plaintiff Requests an IEE

During the relevant time period at issue in this case, Plaintiff was 11 years old and attended sixth grade at a school within the District. See Administrative Record ("AR") 356.

On August 10, 2017, Plaintiff's advocate, Peter Attwood, emailed the District and represented that Plaintiff had not received a proper assessment for special educational needs over at least the prior two years. See AR 341. Attwood conveyed Plaintiff's interest in having the District agree to assess Plaintiff in all suspected areas of suspected disability, including assessments for neuropsychological issues, auditory processing, motor coordination, and other communication skills. See AR 341-42. In response, the District sent a letter to Plaintiff's parents on August 17, 2017, attaching a proposed assessment plan for Plaintiff. AR 337-40. Attwood responded to the District's letter by email on August 21, 2017, finding the District's proposed assessment plan "largely acceptable" but requesting that Plaintiff receive an IEE for visual processing and other assessment areas not relevant to the instant dispute. See AR 342-43.

On August 31, 2017, the District sent Plaintiff a "prior written notice" letter pursuant to 34 C.F.R. § 300.503³ to address Plaintiff's request for an IEE. See AR 310-11. In the letter, the District agreed to allow Plaintiff to receive an IEE for visual processing, provided that the IEE satisfied the IEE policy (the "Policy") for the West End SELPA (the "SELPA"), which is the special education local plan area of which the District is a member. See AR 311. The District attached the Policy to the letter for Plaintiff's review, including the SELPA's list of qualified independent evaluators, along with a revised proposed assessment plan for the District's assessment that omitted the areas of assessment for independent evaluation. See AR 312-13 (the revised assessment plan); AR 314-36 (the Policy and the SELPA's list of independent evaluators).

The Policy provides that, if a student's requested IEE exceeds the maximum allowable cost for that form of evaluation as set forth in the Policy, the student's parent must demonstrate "unique circumstances" that justify exceeding the cost criteria. AR 321. The cost of the evaluation is considered to include "observations, administration and scoring of tests, report writing, and attendance ... at the [individualized education plan] team meeting to discuss the findings if invited by the school district." Id. The Policy does not identify a single maximum cost for a visual processing evaluation, instead identifying the following three categories of visual-based assessments: (1) Visual Motor Integration, with a maximum cost of $300; (2) Visual Acuity, with a maximum cost of $350; and (3) Visual Perception, with a maximum cost of $250. AR 323. These cost maximums added up to a cost cap for visual processing evaluations of $900. See AR 357 (the ALJ finding this amount to be the relevant cost maximum for a visual processing assessment under the Policy).

B. Plaintiff Selects a Visual Processing Evaluator

On September 12, 2017, Plaintiff's mother emailed the District, stating that she selected Dr. Douglas Stephey, who was not on the SELPA's list of independent evaluators, as her preferred independent evaluator for visual processing. AR 252. On September 26, 2017, the District requested that Plaintiff's mother provide a copy of Dr. Stephey's curriculum vitae and rate sheet so that the District can determine whether Dr. Stephey satisfied the IEE criteria in the Policy. AR 255.

Dr. Stephey emailed the District directly on October 3, 2017, noting that Plaintiff's parents asked him to forward his curriculum vitae and rate sheet to the District. See AR 307. Dr. Stephey explained to the District that "I work collaboratively with about 30 districts and have never had a parent have to track down this information." Id. Dr. Stephey attached to his email a rate sheet for Dr. Stephey's vision therapy fees, but the rate sheet did not identify a flat fee for a visual processing evaluation as requested by Plaintiff. See AR 307-09. In the email, Dr. Stephey noted that his visual processing evaluation and attendance at an individualized education program ("IEP") meeting for Plaintiff would not exceed a fee of $2,500. AR 307. The ALJ found that, in reviewing Dr. Stephey's rate sheet, the District estimated that Dr. Stephey's visual processing evaluation would cost around $2,400. AR 357.

On October 13, 2017, the District sent a letter to Plaintiff's parents, informing them that Dr. Stephey "does not meet the cost maximum" under the Policy. AR 256. The District requested that Plaintiff's parents provide written justification as to the unique circumstances warranting an assessment above the cost cap in the Policy. Id. However, in the letter the District did not identify the specific cost cap for visual processing under the Policy, nor did the District represent the rates Dr. Stephey proposed to charge for such an evaluation. Id.

On October 19, 2017, Attwood emailed the District to contest the District's position regarding Dr. Stephey's IEE for visual processing. See AR 258. Attwood requested additional information on what the District interpreted to be the Policy's cost cap for visual processing, as well as what Dr. Stephey represented to the District regarding his charged rates. Id. In response, the District directed that Attwood contact Royal Lord, the SELPA's program manager, regarding Dr. Stephey's IEE arrangements. Id. Attwood took issue with this response, arguing that the District should not require Plaintiff and his representative to "chase around for information when you ... have demanded a response from us without providing the needed information ... You could have just responded to my queries, if you wanted to get the job done." AR 259. However, Attwood did not attempt to provide any written justification for exceeding the Policy's cost cap, as requested by the District.

On November 2, 2017, the District sent another letter to Plaintiff's parents, again requesting written justification for Dr. Stephey's evaluation exceeding the Policy's cost cap. AR 280-81. The District followed up with another letter requesting this information on November 7. See AR 262.

C. The Parties File Due Process Complaints

On November 15, 2017, Plaintiff's mother emailed the District, stating her intention to cancel an upcoming IEP meeting because Plaintiff had not yet received all of his IEE assessments. AR 278. Plaintiff's mother repeated that the District has not identified how Dr. Stephey does not satisfy the Policy's cost cap, and Plaintiff's mother asserted that the District's continued efforts to seek written justification as to unique circumstances justifying an IEE in excess of the cost cap "make[s] it clear that you simply do not intend to respond" to Plaintiff's parents' request for an IEE from Dr. Stephey. Id.

The District responded the same day by offering that the parties attend an...