DEAN D. PREGERSON, District Judge.
Presently before the court is Plaintiff's Complaint seeking reversal of a decision by the California Office of Administrative Hearings finding that (1) Plaintiff did not meet his burden to show that Defendant Goleta Union School District ("the District") failed to timely provide him with an independent psychoeducational assessment and (2) the District adequately showed that Plaintiff was not entitled to an independent evaluation by the evaluator of his choosing, Dr. Ann Simun. Having considered the submissions of the parties and conducted a court trial, the court affirms the Administrative Law Judge's decision and adopts the following Order.
In 2013, the District conducted a psychoeducational assessment of Plaintiff and concluded that he was eligible for special education due to autism, with secondary eligibility for intellectual disability. (Administrative Record ("AR") 576-77.) The District's Individualized Education Program ("IEP") team later reversed the eligibility categories, listing "intellectually disabled" as the primary category and "autism" as a secondary disability. (AR 583.).
The Individuals with Disabilities Education Act ("IDEA") and its implementing regulations require that parents who disagree with a school district's educational assessment of a child be allowed to obtain an independent educational evaluation at public expense. 20 U.S.C. §1415(b)(1); 34 C.F.R. § 300.502.
On May 15, Parent reiterated her request for a "comprehensive developmental assessment." (AR 610.) On May 19, Saleh sent a letter explaining that the district would fund a "pyschoeducational" evaluation, and again attached the SELPA's guidelines. (AR 612.) Among the guidelines were "cost criteria" limiting the amount the SELPA would pay to a qualified independent evaluator. Saleh's letter further explained that if Parent selected an evaluator who did not meet the cost criteria, Parent would have to "show why it is necessary that an assessor with unique qualifications is warranted."
Dr. Simun's office informed the District that Simun charged $5,000 for a psychoeduactional assessment, and intended to conduct a $6,000 "neuropsychological assessment" of Plaintiff. Simun would not agree to accept the District's maximum fee. (AR 673-74.) On May 30, the District informed Parent that Dr. Simun did not meet the SELPA cost criteria, and asked parent to provide an "explanation of circumstances unique to [Plaintiff] that might justify funding" an over-guidelines cost evaluation, including "complex medical, educational, and/or psychological needs such that there are no other qualified evaluators." (AR 677-78.)
On June 2, 2014, Parent responded that Dr. Simun was "uniquely qualified . . . due to her extensive training and expertise assessing children and adolescents with complex and challenging needs. Dr. Simun has broad experience measuring the IQ of non-verbal and low-speech students. . . . Given that [Plaintiff] has a diagnosis of Classic Autism, is virtually non-verbal, and uses an [Augmentative Alternative Communication] device to communicate, it is essential that he be evaluated by a professional who understands the neurological, communicative, and behavioral challenges of autism . . . No other Neuropsychologist in the region has the education, training, and experience of Dr. Simun." (AR 679.)
On June 17, the District responded that the circumstances identified by Parent were not unique enough to merit deviation from the cost guidelines, and asked Parent to provide additional information. The District explained that it would reconsider its cost criteria determination if Parent could show unique circumstances "such as a complex medical, health, or educational needs, such that Dr. Simun is the only qualified assessor." (AR 684.) On June 23, Parent reiterated essentially the same reasons as in her June 2 letter, stating that the District should either fund the assessment by Dr. Simun or file for a due process hearing.
On July 7, the District again disagreed that Parent had identified "unique circumstances" warranting a deviation from the Santa Barbara SELPA's independent evaluator cost criteria, and again indicated that it would agree to Dr. Simun's above-cap fee if Parent could provide further information justifying the departure. (AR 733-34.) On July 14, Parent informed the District that she was proceeding with an evaluation by Dr. Simun, and declined to produce any further information. (AR 748).
The District filed for a hearing two weeks later, on July 28. Student also later filed a request for hearing. The California Office of Administrative Hearings Administrative Law Judge ("ALJ") consolidated the two requests and addressed two issues: (1) "Did District deny Student a free appropriate public education by failing to timely provide Student with an independent psychological evaluation following Parent's May 2014 request" and (2) "Was Student entitled to an independent psychosocial or neuropsychological evaluation by an evaluator of Student's choice which exceeded District's cost criteria?" (AR 797.) After holding a five-day hearing, the ALJ issued a twenty-eight page decision finding in the District's favor on both questions. Plaintiff now seeks review of that decision.
Plaintiff, as the party challenging the administrative decision, bears the burden of showing by a preponderance of the evidence that the ALJ erred.
The parties' various arguments relate to two main questions: (1) did the ALJ correctly determine that the District's independent educational evaluation cost criteria were reasonable and, if so, (2) did Plaintiff fail to demonstrate unique circumstances warranting a deviation from the cost cap. To the extent Plaintiff also contends that the ALJ "never determined Plaintiff's issue" (Opening Brief ("OB") at 21:1), namely that the District denied Plaintiff a free appropriate public education by failing to timely provide him with an independent evaluation, that assertion is not supported by the record. The ALJ explicitly found that the District reasonably offered to fund a qualifying evaluation within two weeks of Parent's initial request, and that the District reasonably filed for a hearing within two weeks of the breakdown of the parties' discussions regarding the independent evaluator. (AR 817-18.) Thus, there is no merit to Plaintiff's assertion that "[t]he ALJ's Decision did not address the issue raised by Plaintiff regarding the District's agreement to the [independent evaluation] and its failure to timely provide it . . . ."
There is, of course, no dispute that the District did not provide Plaintiff with an evaluation by Dr. Simun. If Plaintiff is correct that the District's cost criteria were not reasonable, or that Plaintiff did adequately demonstrate unique circumstances meriting a departure from those criteria, the District's continuing refusal to pay for Dr. Simun's evaluation would necessarily also constitute a failure to timely provide an independent evaluation. The court therefore proceeds to analyze the two questions underlying this matter.
The ALJ heard live testimony from SELPA Director Dr. Jarice Butterfield regarding the establishment of the District's cost cap.
Plaintiff argues that Butterfield's testimony was inadmissible hearsay, and that the ALJ erred by considering it.
For these reasons, this Court concludes that the ALJ, relying primarily upon Dr. Butterfield's live testimony, did not err in determining that the District's $4,500 cost ceiling was reasonable.
A parent seeking an independent educational evaluation that exceeds a school district's reasonable cost cap is entitled to demonstrate that "unique circumstances" warrant the above-ceiling evaluation.
At the administrative hearing, Parent claimed that Plaintiff had a history of seizures, and that she had informed the District of the seizures. The ALJ found Parent to be not credible. The ALJ observed that Parent's testimony about when she notified District officials about the seizures was internally inconsistent and conflicted with IEP team notes. (AR 799, 801, 803.) Parent also never mentioned seizures to Dr. Simun, or in response to Dr. Saleh's inquiry about Plaintiff's unique circumstances, such as complex medical or health needs. Parent also claimed at the that Plaintiff was performing tasks at home that he was not performing at school. The ALJ found that testimony not credible as well, observing that school records indicated that Plaintiff was indeed performing those and similar tasks in a school setting. (AR 805.) Plaintiff's argument that "the ALJ did not explain why she appeared not to believe the parent's reports" is therefore not supported by the record.
Parent's advocate, Ms. Shove, helped Plaintiff determine that only Dr. Simun was qualified to evaluate student. Plaintiff argues that the ALJ found Shove not credible because "she could not remember each and every reason she had rejected the individuals identified on the District's IEEE list and because the emails of her several contacts were not produced." (OB at 23:10-13.) Plaintiff significantly understates the ALJ's reasoning. The ALJ observed that Shove was a long-time personal friend of Parent, that Shove had a pre-existing professional relationship with Dr. Simun, contacted only four independent assessors other than Dr. Simun, gave "vague" and "contrived" answers to live questions, and "went far afield in answering the questions posed to her." (AR 803, 807-08, 822.) The ALJ also observed that Parent selected Dr. Simun weeks before Shove ever contacted other independent evaluators, casting doubt about Parent and Shove's contention that their selection of Dr. Simun was necessitated by the lack of any other qualified evaluator. (AR 822.) Deferring to the ALJ's impression of Shove's demeanor, and considering the numerous questions regarding her objectivity, this court cannot conclude that the ALJ erred in discounting Shove's testimony.
The ALJ credited the opinion of District expert Dr. Chidikel over the opinions of Dr. Simun, who evaluated Plaintiff after examining him for three days, and Dr. Perlman, who did not meet with Plaintiff or review his records. When a treating doctor's opinion is contradicted by another doctor, an ALJ may only reject the treating doctor's opinion for "specific and legitimate reasons supported by substantial evidence in the record."
Plaintiff argues that the ALJ should not have credited Dr. Chidikel's testimony because she violated professional guidelines by diagnosing Plaintiff without personally evaluating him. (OB at 24.) The court disagrees with Plaintiff's characterization. Dr. Chidikel testified in an expert capacity as to the adequacy of Dr. Simun's testing and the uniqueness of Plaintiff's disabilities, not in a diagnostic capacity. The court also disagrees with Plaintiff's assertion that the ALJ "failed to detail specifically what numerous inconsistences and other problems there were with [Dr. Simun's] report." (Reply at 8:7-8 (internal quotations omitted).) The ALJ provided several particular critiques of Dr. Simun's assessment. The ALJ noted, for example, that Dr. Simun was not able to complete the type of test she selected, and had to abandon the testing several times before ultimately completing a different kind of test. (AR 809.) The ALJ also observed that, although Dr. Simun referred for the first time at hearing to the possibility that Plaintiff had had seizures, nothing in Dr. Simun's report, or her suggestion that a neurological evaluation might be appropriate, suggested that Plaintiff might be having seizures or that medical doctors should rule out seizures. The ALJ further relied upon Dr. Chidikel's opinion that Dr. Simun's erroneous use of neuropsychological assessment tools and later adoption of other methods led to inconsistent and unreliable results. (AR 811.) Dr. Chidikel also opined that Dr. Simun's conclusions were not verifiable because Dr. Simun failed to record test results, and were otherwise not supportable by the data obtained. (
Plaintiff also briefly raises two additional, but unpersuasive arguments. Plaintiff asserts that Ms. Fox, the District's evaluator, was unable to adequately evaluate Plaintiff and had "unanswered questions" about his abilities, and that her opinion regarding Plaintiff's limitations and their uniqueness, or lack thereof, should therefore have carried little weight. First, the court is skeptical of Plaintiff's attempt to use alleged deficiencies in the District's evaluation as the basis for "unique circumstances" meriting an above-cap independent educational evaluation. A parent's right to an independent evaluation presumes that the parent disagrees with the district's assessment.
Plaintiff bore the burden of demonstrating that his "unique circumstances" justified a departure from the District's reasonable cost cap on independent educational evaluations. The ALJ provided numerous specific and legitimate reasons why she discounted Plaintiffs' experts' opinions, as well as those of Parent and Ms. Shove, and gave more weight to the District's witnesses' opinions that Plaintiff's circumstances were not unique. Accordingly, and giving substantial deference to the ALJ's credibility determinations, this court concludes that the ALJ did not err.
Portions of the parties' briefing, and much of the discussion at trial, concerned Plaintiff's argument that the District failed to timely provide an independent educational evaluation by failing to pay an amount up to its reasonable cost cap toward Dr. Simun's above-cap fee. The parties appear to agree that
The District further argues, however, that IDEA's implementing regulations also forbid a district from paying only a portion of an independent evaluator's fee. Parents have the right to "an independent educational evaluation
It does not appear to the court that this issue was ever presented to the ALJ, or that the issue is properly before this Court. Although Plaintiff sought to introduce evidence of certain fee-splitting discussions with the District into the administrative record, the ALJ denied that motion as improperly revealing the substance of settlement discussions. Plaintiff also sought leave from this Court to supplement the administrative record with evidence of those discussions. (Dkt. 30, 21.) Plaintiff did not, however, suggest that the fee-splitting discussions concerned a liability question or implicated a question of regulatory interpretation, but rather sought to introduce the evidence in the event it later became relevant to a determination of attorney's fees. (
Accordingly, this court does not reach the question whether a school district must, or may, pay a portion of an independent educational evaluator's fees up to the district's reasonable cost cap where the evaluator's fee exceeds that cap and the parent agrees to pay the difference.
For the reasons stated above, the ALJ's decision in favor of the District is AFFIRMED.
IT IS SO ORDERED.
