HON. STEPHEN V. WILSON, UNITED STATES DISTRICT JUDGE.
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
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).
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;
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. § 300.503
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
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.
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 alternative dispute resolution meeting to resolve the parties' "misunderstanding or a difference of opinion on how these matters are to be handled." Id. Attwood responded to the District's email by rejecting the District's proposal for a meeting, asserting that "[y]ou don't want to approve IEEs by appropriate independent assessors. You won't even tell us specifically what you have in mind by a comprehensive visual processing assessment, and how the assessors on your list perform one, and how Stephey's is too expensive." AR 277. Attwood argued that because the District refused to document their specific objections to Dr. Stephey's proposed IEE, the District "needed long ago to file for a hearing to prove [Dr. Stephey] unqualified," and that the District should "[j]ust file for hearing, although you have already unnecessarily delayed in doing it." Id.
The ALJ determined that the District was on Thanksgiving break between November 18 and November 26, 2017, and therefore the District did not imminently respond to Attwood's November 15 email. AR 357.
On November 30, 2017, Plaintiff's mother emailed the District in response to a letter from the District dated November 17, 2017. See AR 265. The District's letter, which does not appear to be part of the administrative record in this case, purportedly made the same requests as the District's prior letters asking for written justification as to why Dr. Stephey's visual processing IEE should exceed the Policy's cost cap. Id. Plaintiff's mother again expressed frustration that the District has refused to answer Plaintiff's questions regarding the Policy's cost cap and Dr. Stephey's charges, and Plaintiff's mother suggested that "[p]erhaps the best thing for the district to do is to file for a hearing to avoid anymore [sic] unnecessary delays." Id.
The next day, December 1, the District emailed Plaintiff's mother, stating that "the District will request a due process hearing regarding your request for Dr. Stephey to conduct a vision therapy IEE" but invited Plaintiff's mother to select other assessors that meet the Policy's cost criteria or to schedule an alternative dispute resolution meeting. Id. On December 4, 2017, the District sent Plaintiff's parents
Interestingly, Plaintiff and the District were able to resolve a disagreement about the cost of a different IEE Plaintiff requested, regarding neuropsychological issues. The District had represented in the December 1 email that the costs of the neuropsychological IEE to be performed by Plaintiff's selected evaluator, Dr. Robin Morris, exceeded the Policy's cost criteria. See AR 265. In the December 4 letter, the District changed course and approved Dr. Morris's IEE. AR 263. In email correspondence that same day, the District explained that Lord, the SELPA's program manager, had contacted Dr. Morris directly, and Dr. Morris agreed to adjust her rate sheet to fit within the Policy's cost criteria. AR 267. When Plaintiff's mother asked if such a solution would be possible for Dr. Stephey as well, the District responded that it would "inquire at our SELPA and if the situation changes, I will contact you." Id. However, it is unclear from the record whether the District actually contacted the SELPA about Dr. Stephey, or whether the SELPA reached out to Dr. Stephey as it had done for Dr. Morris.
Nevertheless, on December 5, 2017, the District filed a due process complaint against Plaintiff, which was designated OAH Case No. 2017120261. See AR 1-8. In the complaint, the District requested a hearing regarding the issue of whether Plaintiff is entitled to a vision therapy IEE "by an evaluator of [Plaintiff's] choice who does not meet the requirements of the IEE policy." AR 6. In the complaint, the District asserted that the Policy's cost cap for visual perception IEEs was $1,000, and that Dr. Stephey's proposed IEE would cost $1,380 above the cost cap. AR 7.
The ALJ found that Attwood did not know that Dr. Stephey's fee was around $2,400 until reading the District's complaint. AR 358. At the hearing, Attwood opined that such a fee was "high," and Attwood apparently reached out to Dr. Stephey to convince him to lower his fees after the District filed its due process complaint. Id. On December 19, 2017, Dr. Stephey emailed Lord and attached a revised fee schedule with a single inclusive fee for a visual processing IEE. See AR 274. Dr. Stephey stated that he was told to include time for classroom observations in his initial rate sheet and fee estimate, although he represented that no other districts with which he contracts require classroom observations to be included. Id. Recognizing that adding classroom observations to his IEE assessment "would drive up the cost substantially," Dr. Stephey removed that item from his revised fee schedule, which "has reduced the cost substantially." Id. Dr. Stephey's revised fee schedule stated that his visual processing IEE, which included a vision therapy assessment, written report, review of other records for up to one hour, and participation in one IEP meeting via teleconference for up to one hour, would be conducted "for a fee not to exceed $1400.00." AR 275.
On December 26, 2017, Plaintiff filed his own due process complaint against the District, designated OAH Case No. 2017120979. See AR 74-78. Plaintiff raised two issues, the first pertaining to whether Plaintiff was denied meaningful assessment
In Plaintiff's due process complaint, Plaintiff requested a date for mediation between Plaintiff and the District. AR 74. The parties participated in a resolution session on January 30, 2018, and prior to the meeting the parties executed a confidentiality agreement. See Rastegar Decl. ¶ 7; id. Ex. A. Handwritten on the agreement is the statement that "[n]othing said in this meeting is admissible in any administrative proceeding or civil action." Id. Ex. A. Maryam Rastegar, counsel for the District, represents that Attwood added the handwritten terms on behalf of Plaintiff. Id. ¶ 7.
Following the resolution session, the parties evidently agreed in principle on terms to resolve their respective due process complaints. On February 1, 2018, Rastegar emailed Plaintiff's mother, stating that "I understand that you are reviewing the settlement agreement [reached at the resolution session] and have a few proposed changes." Id. Ex. B. However, Plaintiff's mother emailed Rastegar on February 6, stating that "[w]e spoke to our attorney and she agreed that your offer is outrageous. We will not be signing." Id. Ex. C.
On February 8, 2018, Plaintiff retained Tania L. Whiteleather to represent Plaintiff in connection with the administrative proceedings. AR 123. The same day, Plaintiff filed a motion for continuance of the due process hearing then scheduled for February 20, 2018, which the District did not oppose and which the ALJ later granted. See AR 125-26; AR 131-32; AR 140-42. Also that same day, Attwood emailed the District and its counsel, stating that "on the advice of counsel, Tania Whiteleather, we are renewing our offer to settle the District case ... for $1000 of public funding of the IEE" to be performed by Dr. Stephey. Rastegar Decl. Ex. D.
On February 9, 2018, Rastegar responded to Attwood's email by attaching a copy of the settlement agreement purportedly memorializing the parties' agreement as embodied by Attwood's offer. See id. Ex. E. The proposed settlement agreement stated that the agreement "arises out of the resolution session" on January 30, 2018. Id. at 2. The agreement provided that the District agreed to reimburse Plaintiff's parents for Dr. Stephey's IEE in an amount not to exceed $1,000, with Plaintiff's parents agreeing to be "solely responsible for any amounts that [Dr. Stephey] might charge that exceeds $1,000." Id. at 2-3. In the agreement, each party would agree to dismiss their respective due process complaints with prejudice, and Plaintiff's parents were asked to indemnify the District for "any liability, injury, and/or damage to person or property" resulting from Plaintiff's assessment by Dr. Stephey. Id. at 3. Plaintiff's parents also would be providing a release to the District for any claims "arising from, or related to, Parents' right to a publicly-funded vision therapy IEE," in exchange for the District's release to Plaintiff's parents of the same. Id. The release was to apply "to any action or proceeding related to claims... which are based on any state or federal statute, regulation, [or] case decision," and Plaintiff's parents were to agree that they could not file any complaint of any kind against the District for any claims arising from or related to those resolved by the agreement. Id. at 3-4. The agreement
On February 12, 2018, Whiteleather sent a letter to Rastegar and Jonathan P. Read, also representing the District. See Dkt. 28-5. Whiteleather repeated Plaintiff's parents' offer "to pay the amount of Dr. Stephey's visual processing IEE that is over and above $1,000." Id. at 1. Whiteleather also asserted that, as a result of the District's failure to accept that offer, the District was obligated to pay a portion of Plaintiff's attorneys' fees charged by Whiteleather in the amount of $1,000 on top of the amount paid for Dr. Stephey's evaluation. Id. Whiteleather also stated that other features of the proposed settlement agreement "are not acceptable," including (1) the characterization that the agreement arose out of the resolution session on January 30, (2) the District's attempt to have Plaintiff's parents indemnify the District for Dr. Stephey's evaluation, and (3) the District's attempt to have Plaintiff release the District from any other claims or actions. Id. at 2. Whiteleather additionally stated that the amount the District was willing to pay as the cost cap for Dr. Stephey's evaluation "is not in any way sufficient to pay for the evaluation and attendance at an IEP meeting," suggesting that the District's cost cap should be altered to exclude IEP meeting attendance. Id. Whiteleather reasserted that Plaintiff's parents would not agree to waive attorneys' fees as part of any settlement. Id.
On February 14, 2018, Read responded to Whiteleather's letter to address Whiteleather's dissatisfaction with the proposed settlement agreement. See Dkt. 43-5 Ex. A. Read made the following representations to Whiteleather: (1) the District denied Whiteleather's request to remove the provision that the agreement arose out of the January 30 resolution session; (2) the District denied Whiteleather's request to treat payment for Dr. Stephey's attendance at an IEP meeting separately from the District's cost criteria, because the Policy includes IEP meeting attendance as part of the cost calculation; (3) the District represented that it would agree to make payment for the IEE to Dr. Stephey directly, rather than reimburse Plaintiff's parents for payment, only if Dr. Stephey's evaluation did not exceed the $1,000 cost cap; (4) the District denied Whiteleather's request to remove the indemnification provision; (5) the District agreed to revise the release of claims provision to limit its applicability only to claims "raised" in the administrative complaints at issue; and (6) the District agreed to pay for Plaintiff's attorneys' fees in the amount of $1,000. Id. at 3-4. Read attached a revised draft of the settlement agreement reflecting the changes to which the District agreed. See id. at 5-9.
The District did not receive a response to Read's February 14 letter. Read Decl. ¶ 5. On March 8, 2018, Read emailed Whiteleather to follow up on the revised settlement agreement. Dkt. 43-5 Ex. B. In response, Whiteleather requested that Read re-send the email containing the proposed settlement agreement. Id. Ex. C.
Later that same day, Whiteleather sent an email to Read responding to the District's changes to the settlement agreement, stating that "I had thought a response to the February 14th offer had been sent to your office; my apologies if you did not receive it." Id. Ex. D. In the email, Whiteleather made the following requests regarding the District's proposed settlement agreement: (1) Whiteleather again requested removal of the provision treating the agreement as arising out of the resolution session; (2) Whiteleather stated that Plaintiff's parents "have offered to pay the balance of Dr. Stephey's visual processing assessment beyond the
On March 19, 2018, Read sent an email responding to Whiteleather's requests regarding the settlement agreement. See id. Ex. E. Read conveyed that the District accepted most of Whiteleather's changes, see id. at 1-2, and Read attached a revised proposed settlement agreement adopting those changes, id. at 4-8. In the attached agreement, the District would agree to fund Whiteleather's attorneys' fees and costs related to the OAH proceedings in an amount not to exceed $2,000 "within 60 days of District's receipt of reasonable documentation" that supports the services provided, hours billed, and hourly rates. Id. at 5. However, the proposed agreement maintained an indemnification provision where Plaintiff's parents agreed to be solely responsible for any liability or injuries resulting from Dr. Stephey's assessment, although the language of the indemnification provision was substantially curtailed from the prior draft. Id. Additionally, Plaintiff's parents would still be required to release and discharge the District for all past and present claims "arising from, or related to" the OAH proceedings, and Plaintiff's parents would have to agree not to file any complaint against the District for such claims. Id. at 5-6.
After receiving no response from Whiteleather, Read sent another email on March 22, 2018 inquiring as to whether Whiteleather received the latest draft of the settlement agreement. Id. Ex. F. Whiteleather ultimately responded on March 23 with a marked-up version of Read's proposed settlement. Id. Ex. G. Inexplicably, and despite Whiteleather's prior representations about the willingness of Plaintiff's parents to pay all costs for Dr. Stephey's IEE above $1,000, Whiteleather altered the proposed settlement agreement so that the District would agree to fund the IEE "in an amount not to exceed $1,400, consistent with the West End SELPA's IEE policy." Id. at 2. Whiteleather also crossed out the provision in the agreement that would hold Plaintiff's parents responsible to pay all charges associated with the IEE exceeding $1,000. See id. at 3. Furthermore, Whiteleather increased the attorneys' fees to be paid by the District from $2,000 to $3,000, also changing the requirement for her to provide "reasonable documentation" to one requiring only "redacted" documentation. Id. Whiteleather again took issue with the indemnification provision, crossing out that provision and writing below "THIS IS NOT ACCEPTABLE; DR STEPHEY
On March 27, 2018, Read emailed Whiteleather to respond to her proposed changes to the draft settlement agreement. Id. Ex. H. Read rejected Whiteleather's attempt to increase payment for Dr. Stephey's IEE to $1,400, returning to the previously-agreed amount of $1,000. Id. at 2. For the first time, Read agreed to remove the indemnification provision entirely, acknowledging that the District no longer sought to have Plaintiff's parents be solely responsible for any injury resulting from Dr. Stephey's IEE. Id. at 1. Read agreed to allow redacted billing records as sufficient to satisfy "reasonable documentation" for purposes of paying Whiteleather's attorneys' fees, but Read noted that he "did not change the amount of [attorneys'] fees because the District agreed to your demand of March 8 [for $2,000]." Id. Lastly, Read agreed to "narrow the release [provision] to claims `raised' in each [OAH] complaint," rather than providing for a release of all claims "arising from or related to" the OAH proceedings. Id. Read attached a proposed settlement agreement reflecting these changes. See id. at 2-6; see also Dkt. 28-6.
Whiteleather's next correspondence regarding the settlement agreement came on April 3, 2018. Dkt. 43-5 Ex. I. Whiteleather requested four small textual changes to the settlement agreement, as well as an increase in the District's payment of attorneys' fees to $5,000. Id. Whiteleather did not convey dissatisfaction with the release provision included in Read's latest draft, nor with other language regarding waivers of rights still remaining in the proposed agreement. Read responded two days later, on April 5, incorporating some of Whiteleather's proposed textual changes and agreeing to increase the attorneys' fees from $2,000 to $2,500, half of Whiteleather's latest request. Id. Ex. J; see also Dkt. 28-7.
On April 10, 2018, Whiteleather again emailed Read to dispute terms included in the proposed settlement agreement. Dkt. 43-5 Ex. K. Whiteleather stated that Read's draft from April 5 "fails to address the original changes we had requested for this matter nor the most vital of our objections to your client's offer." Id. Whiteleather elaborated that her objections to Read's draft from March 19 "continue and apply to the April 5, 2018 offer which demands waiver of other rights beyond those not at issue and which fails to offer or include reasonable attorney's fees." Id. Whiteleather conveyed that Plaintiff's parents "simply cannot accept this latest offer, which contains the same outrageous waiver language the parents objected to in multiple communications," id., although Whiteleather did not identify what objectionable language was still at issue in Read's latest draft. Because Whiteleather construed Plaintiff's parents' offer to pay for all costs of Dr. Stephey's IEE exceeding $1,000 as "a clear agreement by the parents to the District's cost cap," Whiteleather requested a revised version of a settlement agreement "that addresses the sole issue being resolved — that of the payment of the visual processing IEE, which does not require the parent to waive other issues, and which provides for the payment of reasonable attorney's fees and costs." Id.
In the midst of the parties' negotiation efforts, on April 2, 2018 Plaintiff sought a continuance of the OAH proceedings in light of scheduling conflicts for Whiteleather. See AR 180-82 (request for a continuance of the due process hearing set for April 3-5, 2018); AR 191-92 (the ALJ granting Plaintiff's request for a continuance and setting the hearing to begin on April 10); AR 194-95 (the ALJ granting the parties' joint request for a continuance and setting the hearing to begin on May 2).
On March 21, 2018, while the parties were attempting to negotiate a settlement of their respective due process complaints, Dr. Stephey evaluated Plaintiff for visual processing, thus completing the IEE. See AR 268 ("Vision Assessment Invoice" from Dr. Stephey identifying the date of evaluation as March 21, 2018). Dr. Stephey evidently charged only $800 for the assessment of Plaintiff, including the preparation of a written report and review of Plaintiff's records. Id. Dr. Stephey noted that, due to Plaintiff's condition, "there were a number of assessments that I simply could not conduct as his current skill set won't allow him to," and Dr. Stephey proceeded to list the assessments he could not perform. Id.
It is unclear from the record when Plaintiff, Plaintiff's parents, and/or Whiteleather first received the invoice from Dr. Stephey for the visual processing IEE. However, neither Whiteleather nor Plaintiff's parents brought Dr. Stephey's invoice to the District's attention as part of the parties' ongoing efforts to communicate a settlement of their respective due process complaints. Instead, what the record does reveal is that Plaintiff included Dr. Stephey's invoice in Plaintiff's evidence binder provided to the District on March 28, 2018 in advance of the OAH hearing, which the ALJ found to be the first time the District became aware that Dr. Stephey's IEE fell within the Policy's cost cap and satisfied the District's cost critera. See AR 358-59 (the ALJ finding persuasive the District's representation that "the first time [Plaintiff] communicated that the one thousand dollars was acceptable was when District received [Dr.] Stephey's invoice when the parties exchanged exhibit binders for the hearing, on March 28, 2018").
On April 23, 2018, Read emailed Whiteleather to discuss ongoing disputes regarding the settlement agreement. See Dkt. 43-5 Ex. M. In the email, Read stated that "[i]n reviewing your evidence binder ... it appears that Dr. Stephey has already completed the [vision therapy] evaluation for a cost of $800, which is below the District's cost cap. We did not have that information from Dr. Stephey previously." Id. Read requested that Whiteleather confirm
Whiteleather responded to Read's email the same day. Id. Ex. N. Whiteleather asserted that Plaintiff's parents "have agreed, several times, to accept the District's cost cap of $1,000 for Dr. Stephey's visual processing assessment. Your client's additional waiver terms are not acceptable, and the parents need to be paid for the attorney's fees they have incurred." Id. at 1. Whiteleather requested that Read inform her whether the District "wants to end this appropriately" by settling the matter before hearing, which would include the payment of Whiteleather's attorneys' fees. Id.
On April 24, 2018, Read sent Whiteleather an email regarding the new information about Dr. Stephey completing the IEE for below the Policy's cost cap. AR 346. Read stated that, prior to receipt of Dr. Stephey's invoice, "the District understood that [Plaintiff's] parents were requesting that the District directly fund an independent vision therapy evaluation by Dr. Stephey in the amount of $1,400." Id. However, the last time Whiteleather had requested more than $1,000 as payment for the IEE was on March 23, 2018, when Whiteleather marked up the draft settlement agreement to provide for a payment of $1,400 for Dr. Stephey's evaluation, see Dkt. 43-5 Ex. G, and multiple settlement communications since that date reveal that Plaintiff's parents were willing to agree that the District would pay a maximum of $1,000 for Dr. Stephey's evaluation. Nevertheless, Read continued that, based on the new information about Dr. Stephey's invoice, "the District will agree to fund the IEE by Dr. Stephey in the amount of $800." AR 346. Read noted that the District intended to withdraw its due process complaint and requested that Whiteleather answer whether the payment for Dr. Stephey's IEE should be made to Dr. Stephey directly or to Plaintiff's parents for reimbursement. Id.
On April 25, 2018, Whiteleather responded to Read's email by stating that Plaintiff's parents would accept $1,000 for Dr. Stephey's IEE as the cost cap under the Policy, "no less." Dkt. 28-10. Whiteleather asserted that the remaining $200 available under the Policy "will be applied to Dr. Stephey's appearance at the necessary IEP." Id. Whiteleather represented that her fees incurred in representing Plaintiff's parents have risen to almost $9,750
Whiteleather sent another response to Read's email on April 26, 2018, stating that "any offer to settle [the outstanding due process complaints] includes reasonable attorney's fees." AR 350. Whiteleather indicated that she would be willing to accept $7,750 in attorneys' fees "as full satisfaction of my now over $10,000 fee bill." Id. Whiteleather also acknowledged Read's email as confirming that the District "has now agreed to pay that $1,000" as the cost cap for Dr. Stephey's IEE under the Policy.
Over the following days, subsequent correspondence confirmed that Plaintiff's parents were seeking reimbursement of the $800 cost of Dr. Stephey's evaluation, rather than payment directly to Dr. Stephey. See AR 353. Whiteleather also noted that the remaining $200 under the District's cost cap was to be billed to the District following Dr. Stephey's attendance at an IEP meeting to discuss the results of Dr. Stephey's IEE. AR 352.
On April 30, 2018, Plaintiff filed another motion to continue the due process hearing from May 2, 2018 due to a scheduling conflict for Whiteleather. AR 204-06. The District opposed Plaintiff's request for a continuance as untimely, AR 213, and the ALJ ultimately denied Plaintiff's motion, AR 216-17. The hearing proceeded as scheduled on May 2, 2018. See AR 395 (the first page of the transcript for the May 2 hearing).
At the hearing on May 2, the ALJ did not allow Whiteleather to introduce into evidence certain settlement communications, including drafts of the settlement agreement, between Whiteleather and counsel for the District. See AR 577-78. Thus, the administrative record did not contain most of the settlement correspondence between Whiteleather and the District's counsel over the period of time between February 2018 and April 2018.
Following the May 2 hearing, on June 14, 2018, ALJ Sabrina Kong issued a decision denying Plaintiff's due process complaint. See AR 355-67.
First, the ALJ made several evidentiary rulings, finding that Plaintiff's characterization of the evidence of communications between Plaintiff and the District during the pendency of the administrative proceedings was less persuasive than the District's characterization of the same evidence. The ALJ determined that Attwood's assertion that Plaintiff and his parents communicated to the District in mid-February 2018 that Plaintiff was willing to accept only $1,000 for the IEE from Dr. Stephey was "not persuasive," because Plaintiff did not provide any documents to support that contention. AR 358-59. The ALJ also found Attwood's argument that the District never offered to pay $1,000 for Dr. Stephey's evaluation without conditions, such as waivers of Plaintiff's claims or other rights, to be unpersuasive in light of the emails from late April 2018 indicating that the District was withdrawing its due process complaint and would fund Dr. Stephey's evaluation at the $1,000 cost cap. AR 359.
Second, the ALJ concluded that the District did not unnecessarily delay in filing its due process complaint between August 21, 2017 and December 5, 2017. AR 363-64. The ALJ found that the District timely agreed to fund an IEE within 10 days of Plaintiff's initial request, and when Plaintiff selected an evaluator who did not meet the District's cost criteria, the District "actively communicated with Parent and Mr. Attwood about the [ ] cost criteria and provided Mr. Attwood and Parent the opportunity to demonstrate any unique circumstances justifying an independent evaluation that did not fall within the [ ] cost criteria." AR 363. Because Plaintiff never
Third, as to the period between December 6, 2017 and April 25, 2018, the ALJ construed the parties' frequent communications from February 2018 (when Plaintiff retained an attorney) and late April 2018 as "negotiat[ing] a settlement of the consolidated matter"—i.e., both the District's due process complaint and Plaintiff's due process complaints against the District. Id. The ALJ again rejected Plaintiff's argument that in February 2018 he communicated to the District a willingness to accept only $1,000 for Dr. Stephey's evaluation, because Plaintiff "never provided any documents, emails or otherwise, supporting that he accepted the [ ] cost criteria before late April 2018." Id. The ALJ continued that, even if Plaintiff had made such an offer in February 2018, such an offer was "irrelevant" because Plaintiff never provided any evidence that a delay between February and April 2018 impeded Plaintiff's educational rights, deprived Plaintiff of educational benefits, or significantly impeded the ability of Plaintiff's parents to participate in the decision-making process, showings which are necessary for Plaintiff to be successful in his due process complaint. See AR 365 (citing 20 U.S.C. § 1415(f)(3)(E)(ii) and Cal. Educ. Code § 56505(f)(2) for the proposition that "a procedural violation does not automatically require a finding that a [free appropriate public education] was denied"). The ALJ noted that it was Plaintiff, not the District, who sought numerous continuances of the OAH hearing before the ALJ, and that Plaintiff did not provide any evidence showing that the delays in resolution of the administrative proceeds "were anything beyond the normal and brief periods to accommodate good faith discussions, negotiations, including resolution session and mediation." Id.
The ALJ also found that Plaintiff "conflated District's duty to file and maintain its case to decision with resolving [Plaintiff's] complaint in the context of a settlement agreement which included paying [Plaintiff's] attorneys' fees without releases." Id. Importantly, the ALJ noted that Plaintiff "did not present evidence supporting that District was required to offer the [IEE] in the context of a formal settlement agreement along with payment of [Plaintiff's] attorney's fees when agreeing to fund an independent evaluation." Id. Indeed, the ALJ recognized that after the District withdrew its due process complaint on April 25, 2018, "[Plaintiff's] only dispute with District was its refusal to pay him attorneys' fees." Id. But ultimately, the ALJ held that "[w]hether District was required to pay for [Plaintiffs'] attorneys' fees in conjunction with funding the [IEE] is not before this ALJ, and beyond the scope of the issue in this hearing." Id.
Accordingly, based on the administrative record, the ALJ concluded that Plaintiff did not meet his burden to prove by a preponderance of the evidence that the District unnecessarily delayed in filing its due process complaint or was unreasonable in its efforts to continue negotiating with Plaintiff's team up until the time that the parties agreed on the amount to be paid for the IEE performed by Dr. Stephey. AR 365-66. The ALJ found the District to be the prevailing party as to the sole issue remaining in Plaintiff's due process complaint. AR 366.
Plaintiff filed the Complaint in this action on July 18, 2018, seeking a review and
On February 22, 2019, the Court granted Plaintiff's motion to supplement the administrative record with some correspondence between Whiteleather and counsel for the District regarding settlement negotiations, including draft settlement agreements. See Dkt. 41. The Court held that the ALJ improperly found those communications to be inadmissible, and the Court determined that those communications were relevant to the issue, addressed by the ALJ in the decision, of whether the District unreasonably delayed in resolving Plaintiff's due process complaint by refusing to settle for the District's cost cap until April 2018. Id. at 2. However, the Court denied Plaintiff's request to supplement the administrative record with communications between Plaintiff's mother and the District after the conclusion of the administrative hearings, because such evidence is not relevant to the issues for the Court's resolution as part of the review of the administrative record. Id.
On March 19, 2019, the Court granted the District's ex parte application to supplement the administrative record with additional settlement communications between Whiteleather and the District's counsel. See Dkt. 44.
After the parties submitted trial briefs in this action, the Court held a pretrial conference on March 25, 2019 in advance of a bench trial scheduled for April 2, 2019. See Dkt. 49. Following the pretrial conference, the Court continued the bench trial date to April 16, 2019 and requested supplemental briefing from the parties, to give Plaintiff a chance to address the District's supplemental evidence entered into the record. See Dkt. 50. The Court also explained the lack of clarity as to what legal standards should apply to the thrust of Plaintiff's argument in this case, that the District unnecessarily delayed in resolving its due process complaint by failing to agree to the cost cap of $1,000 for Dr. Stephey's IEE after Plaintiff first indicated his willingness to agree to the cost cap in February 2018. Id. at 1-2.
After the parties submitted their supplemental briefs, the Court vacated the bench trial and took the case under submission without holding a hearing. See Dkt. 55.
The IDEA provides that any party aggrieved by the findings of an ALJ in response to a due process hearing may bring a civil action in federal court to challenge the administrative decision. 20 U.S.C. § 1415(i)(2)(A). In adjudicating the action, the district court "shall receive the records of the administrative proceedings," "shall hear additional evidence at the request of a party," and "shall grant such relief as the court determines is appropriate," basing the decision on the preponderance of the evidence. Id. § 1415(i)(2)(C). The party challenging the administrative decision has the burden of persuasion, i.e., to establish by a preponderance of the evidence that the ALJ erred in its decision. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir. 2009) (L.M. v. Capistrano) (citation omitted).
Because the district court may hear evidence outside the administrative record, "judicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are ... held to a highly deferential standard of review." Ojai Unified Sch.
Nevertheless, the court still must give "due weight" to state administrative proceedings and cannot substitute its own considerations of education policy in place of those held by the school authorities whose actions are under review. Ojai, 4 F.3d at 1472 (internal quotation marks and citation omitted); see also Amanda J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 887-88 (9th Cir. 2001) (noting that courts must defer to the "specialized knowledge and experience" of state administrative bodies tasked with the responsibility over the educational rights of individual children) (internal quotation marks and citation omitted). Courts also are directed to give "particular deference to `thorough and careful' administrative findings." Douglas Cty., 552 F.3d at 793 (quoting R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937 (9th Cir. 2007)). This is because a state administrative hearing regarding special education determinations are "fact-intensive [in] nature," which "render[s] a more deferential approach appropriate" in light of considerations of judicial economy. Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 n. 4 (9th Cir. 2007); see also Ojai, 4 F.3d at 1476 (noting that an ALJ's decision and administrative findings "evince[ ] his careful, impartial consideration of all the evidence and demonstrates his sensitivity to the complexity of the issues presented").
Here, the ALJ held an administrative hearing and heard live testimony from several witnesses, ultimately issuing a relatively short, but concise, 12-page decision addressing Plaintiff's lone surviving due process claim against the District. The ALJ's analysis in the decision appears to satisfy the threshold for "thorough and careful" administrative findings, and the Court will review the ALJ's decision with some deference. See, e.g., A.A. v. Goleta Union Sch. Dist., No. CV 15-06009 DDP (MRWx), 2017 WL 700082, at *2 (C.D. Cal. Feb. 22, 2017) (reviewing the ALJ's decision with "substantial deference" because of "the length of the administrative hearing, which included live testimony from multiple witnesses, and the thoroughness of the ALJ's analysis"); Cupertino Union Sch. Dist. v. K.A., 75 F.Supp.3d 1088, 1098 (N.D. Cal. 2014) (noting that "[a] court should give particular deference where the hearing officer's administrative findings are thorough and careful or are based on credibility determinations of live witnesses") (internal quotation marks and citations omitted); but see Abdella v. Folsom Cordova Unified Sch. Dist., No. 2:14-cv-1259 KJM AC PS (TEMP), 2016 WL 3364793, at *3 n. 5 (E.D. Cal. June 17, 2016) (giving "significant weight" to the ALJ's 54-page decision which "thoroughly and correctly details the relevant history, evidence and issues in dispute, with proper legal analysis supported by citations to case law and statutes") (internal quotation marks and citation omitted).
On the other hand, during the pendency of this action, the Court granted each party's respective motion to supplement the administrative record, because the ALJ improperly did not admit into
Federal regulations promulgated under the IDEA provide that the parents of a school-aged child enrolled in public school has the right to obtain an IEE at public expense if the parents disagree with the public agency's own evaluation of the student's educational needs. 34 C.F.R. § 300.502(b)(1). When a parent requests an IEE, the public agency
Id. § 300.502(b)(2); see also 20 U.S.C. § 1415(b)(1).
The term "unnecessary delay" is not defined in the regulations or elsewhere. Nevertheless, the Office of Special Education Programs ("OSEP"), the entity within the Department of Education responsible for promulgating regulations under the IDEA, addressed the meaning of the phrase in an advisory comment letter. See Letter to Anonymous, 56 IDELR 175 (OSEP 2010).
A finding that a public agency failed to "fund or file" without unnecessary delay does not automatically necessitate a ruling in favor of the parents on their due process complaint. Administrative hearing officers are directed under the IDEA to make their decisions "on substantive grounds based on a determination of whether the child received a free appropriate public education," commonly referred to as a "FAPE." 20 U.S.C. § 1415(f)(3)(E)(i); see also id. § 1415(a) (noting that state procedural safeguards adopted under the IDEA must "ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies"). However, procedural violations of the IDEA's implementing regulations "do not always amount to the denial of a FAPE." L.M. v. Capistrano, 556 F.3d at 909 (citations omitted); see also id. at 910 (noting that "a procedural violation may be harmless"). Once a procedural violation is identified, the ALJ "must determine whether that [procedural] violation affected the substantive rights of the parent or child." Id. at 909 (citations omitted). As stated in the IDEA, a procedural violation of the IDEA and its implementing regulations amounts to the denial of a FAPE "only if the procedural inadequacies—(I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); see also L.M. v. Capistrano, 556 F.3d at 909; Amanda J., 267 F.3d at 892.
In the underlying state administrative proceedings, the ALJ analyzed two distinct time periods regarding Plaintiff's due process complaint alleging that the District unnecessarily delayed in funding Dr. Stephey's IEE or filing its due process complaint. First, the ALJ assessed the period between August 21, 2017 and December 5, 2017, leading up to the date the District filed its due process complaint. See AR 363-64. Second, the ALJ analyzed whether the District timely pursued its due process complaint between the date of filing the complaint and April 25, 2018, the date the District withdrew its complaint and dismissed it without prejudice. See AR 364-65. The Court will proceed to analyze each of these time periods to determine whether the ALJ's findings should be upheld in light of the applicable standards of review set forth above.
The ALJ held that the District did not unnecessarily delay between the first time that Plaintiff's parents requested an IEE
The ALJ concluded that the "first indication of impasse" between the parties regarding Dr. Stephey's IEE was on November 15, 2017, when Attwood suggested that the District file for due process. AR 364; see also AR 277. Because the District was on Thanksgiving holiday between November 18-26, the ALJ held that the District's decision to file a due process complaint on December 5-20 days after Attwood's first suggestion to file for due process—was reasonable, particularly because the District continued to communicate with Plaintiff's parents during this time "in a last-ditch effort to resolve the matter without having to file" a due process complaint. AR 364. In reaching this conclusion, the ALJ distinguished Pajaro Valley Unified Sch. Dist. v. J.S., No. C 06-0380 PVT, 2006 WL 3734289 (N.D. Cal. Dec. 15, 2006), a case heavily relied upon by Plaintiff where the court found a delay of three months to be unnecessary delay, because the 20-day delay by the District was a "brief period" in comparison and was justified based on the parties' continuing communications to resolve the IEE dispute. See AR 364. Instead, the ALJ analogized to Ripon, where the school district delayed filing a due process complaint by three weeks due to continued efforts to communicate with the parents to resolve the matter before filing. Id.; see Ripon, 2009 WL 1034993, at *7-8 (finding no unnecessary delay because "the parties continued to discuss provision of an IEE through a series of letters" and "did not come to a final impasse in that regard until ... less than three weeks before the District's due process report was filed").
Plaintiff takes issue with the District's failure to identify the total cost cap for a visual processing IEE under the Policy, or what amount Dr. Stephey indicated to the District that he would charge for Plaintiff's visual processing IEE, upon requests by Plaintiff's parents beginning in October 2017. See AR 258-59; Dkt. 42 at 5-6 (Plaintiff's reply trial brief arguing that "the parents and the advocate could not discuss or negotiate the costs the District believed Dr. Stephey charged because the parents didn't even know what that was or how much Dr. Stephey's purported charge exceeded the District's cost criterion"). The ALJ did not address this specific argument in its decision, and Plaintiff has not identified any authority for the proposition that the District was required to identify any particular information for Plaintiff's parents upon request. Nevertheless, Plaintiff's argument holds merit.
Because the inquiry into whether unnecessary delay existed is a fact-intensive inquiry, see C.W. v. Capistrano, 784 F.3d at 1247, it is necessary to consider all of the circumstances surrounding the parties' ongoing communications in an effort to resolve the IEE dispute. The case law cited in this Order does not suggest that the existence of merely any communications
In this case, the District had information available to it that would have assisted Attwood and Plaintiff's parents in assessing how to respond to the District's October 13, 2017 letter asserting that Dr. Stephey did not meet the "cost maximum" under the Policy. See AR 256. That letter was purportedly issued to satisfy the District's obligations to send Plaintiff's parents a "prior written notice" letter pursuant to 34 C.F.R. § 300.503, which requires the District to include "an explanation of why the [District] proposes or refuses to take the action" requested by the parents. 34 C.F.R. § 300.503(b)(2). In the letter, the District requested written justification of the unique circumstances warranting a departure from the Policy's criteria for Dr. Stephey's evaluation, but the District did not explain what the cost maximum under the Policy was, nor how much Dr. Stephey's evaluation would exceed that maximum.
That missing information is obviously vital to the discussions between the District and Plaintiff's parents that would inevitably follow after the District's October 13 letter. To illustrate, had Dr. Stephey charged one dollar over the Policy's cost maximum for a visual processing IEE, Plaintiff's burden to justify the use of Dr. Stephey would have been substantially diminished, and Plaintiff's parents almost assuredly would have offered to pay the excess immediately, without the need for the District to resort to a due process hearing. And the events that transpired following the District's filing for due process further illuminates the repercussions of depriving Plaintiff's parents of this information in a timely manner. As the ALJ found, Attwood did not know that Dr. Stephey's purported fee from the rate sheet sent to the District would be around $2,400 until after the District identified that amount in its due process complaint. See AR 358. Attwood then promptly "convinced [Dr.] Stephey to assess [Plaintiff] for one thousand four hundred dollars," id., thereby substantially reducing the difference between Dr. Stephey's rates and the District's cost cap. Plaintiff's parents ultimately express their willingness to pay the amount of Dr. Stephey's fees in excess of $1,000, an option of which Plaintiff's parents were entirely deprived before the District filed for due process on December 5, 2017 due to the District's unwillingness to share even the most basic information about how Dr. Stephey's rates did not comply with the District's cost cap.
Here, when Attwood emailed the District six days after receiving the October 13 letter to request information about the Policy's cost cap for visual processing IEEs and the rates Dr. Stephey charged, the District did not answer Attwood's questions and instead referred Attwood to Lord, the SELPA's program manager, for inquiries about Dr. Stephey. AR 258.
Unsurprisingly, and contrary to the ALJ's decision, the administrative record conclusively establishes that there was such an unnecessary delay. Between October 19, 2017 and November 15, 2017, the District continued to request written justification of unique circumstances from Plaintiff's parents. See AR 280-81 (November 2 letter); AR 262 (November 7 letter); AR 265 (December 1 email, which also acknowledged that the District sent another letter on November 17); AR 263-64 (December 4 letter). During this timeframe, Plaintiff's parents continued to request the District to provide more information about how Dr. Stephey's IEE would not satisfy the District's cost maximum, but the District never did. See AR 259 (follow-up email from Attwood on October 19); AR 277-78 (November 15 emails); AR 265 (November 30 email). The fact that Plaintiff's parents never responded to the District's letters from November 2 and November 7, and never offered the written justification that the District sought, is immaterial because the parents
The District also argues that, because Dr. Stephey did not identify a specific charge for a visual processing IEE in the rate sheet sent to the District and could not identify a single charge until after completing the evaluation, "it would have been impossible for [the District] to do so" in response to Attwood's email on October 19, 2017. See Dkt. 39 at 17. Yet the District had no problem representing unequivocally to Plaintiff's parents that Dr. Stephey "does not meet the cost maximum" for visual processing IEEs under the Policy, after merely looking at Dr. Stephey's rate sheet. See AR 256. It is wholly inconsistent for the District to argue before this Court that it could not estimate what Dr. Stephey's charges would be based on the rate sheet he provided, or even send Plaintiff's parents the rate sheet itself, and at the same time represent to Plaintiff's parents in October 2017 that Dr. Stephey did not meet the cost cap without qualification. The absurdity of the District's argument is further revealed by the fact that Dr. Stephey ultimately billed only $800 for the IEE. See AR 268. The District simply has not articulated a legitimate reason why it refused to cooperate with Plaintiff's parents' simple request for more information, which the District had readily available at its disposal, about how the District determined that Dr. Stephey did not meet the District's IEE criteria, even if an answer could not be provided to the precise dollar amount of Dr. Stephey's yet-to-be-performed evaluation.
Neither has the District provided for justification why it could not feasibly reach out to Dr. Stephey directly to obtain a more precise estimate of his fees for Plaintiff's IEE; the SELPA evidently did the same thing for Dr. Morris, another evaluator chosen by Plaintiff's parents, which resulted in Dr. Morris "adjust[ing] her rate sheet so that Royal Lord could approve her for the neuropsych assessment for [Plaintiff]." AR 267. Plaintiff's parents even requested that the District reach out to Dr. Stephey in this regard, id., but the District has not explained why it did not do so—or alternatively, why the District's efforts to do so proved ineffective. Again, the onus is on the District, not Plaintiff's parents, to ensure that the IEE dispute is resolved without unnecessary delay. See William S. Hart, 2014 WL 12493766, at *5 (affirming the ALJ's conclusion "that § 300.502(b) places the onus on the District to act without unnecessary delay upon the parent's request" for an IEE).
In fact, even earlier in the parties' correspondence about a visual processing IEE for Plaintiff, the District showed that it was unwilling to be proactive to satisfy its duties under the IDEA. After Plaintiff's parents selected Dr. Stephey as their preferred visual processing evaluator in a September 12 email, see AR 252, the District did not contact Dr. Stephey directly despite the fact that Plaintiff's parents included contact information for Dr. Stephey in their email. Rather, the District waited until September 26—two weeks after receiving the email—and sent a letter to Plaintiff's parents asking for Dr. Stephey's curriculum vitae and rate sheet. See AR 255. Dr. Stephey himself noted to the District on October 3, 2017 that, in Dr. Stephey's experience, it was unusual for parents to be asked to collect information from a selected independent evaluator rather than the school district reaching out to the evaluator directly. See AR 307 ("I work collaboratively with about 30 districts and have never had a parent have to track down this information."). The District's decision to send Plaintiff's parents a letter on September 26 asking for Dr. Stephey's rate sheet and curriculum vitae could also
In sum, nothing in the record suggests that it was somehow "necessary" for the District to withhold information about how Dr. Stephey's fees exceeded the District's cost cap, or that the resulting delay between the date Plaintiff's parents first requested that information and the date the District ultimately filed for due process was a "necessary" delay that encompassed good faith negotiations between the parties to resolve the IEE dispute amicably. Therefore, Plaintiff has met his burden to show by a preponderance of the evidence that the District unnecessarily delayed in filing for due process over the 84-day time period between September 12, 2017 and December 5, 2017. Such a timeframe is a relatively short but consistent with other case law finding an unnecessary delay. See, e.g., Pajaro Valley, 2006 WL 3734289, at *3 (finding an unexplained delay of three months to be unnecessary). And even though the District has offered an explanation for the delay, being the communications between the parties in an attempt to resolve the IEE dispute, the specific facts of this case reveal the District's unreasonable refusal to inform Plaintiff's parents about how Dr. Stephey's fees exceeded the District's cost cap, which renders the District's explanation insufficient to find that delay "necessary." Accordingly, the Court REVERSES the ALJ's holding to the contrary on this issue.
The fact that the District committed a procedural violation of the IDEA's implementing regulations is not the end of the analysis; the Court still "must determine whether that [procedural] violation affected the substantive rights of the parent or child." L.M. v. Capistrano, 556 F.3d at 909 (citations omitted). Substantive rights are violated where the procedural violation "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child." 20 U.S.C. § 1415(f)(3)(E)(ii)(II); L.M. v. Capistrano, 556 F.3d at 909. Neither the ALJ, nor Plaintiff in this action, analyze whether Plaintiff's parents were substantively impacted by the District's delay in filing for due process, assuming such delay is unreasonable.
Nevertheless, the administrative record included a letter from the District to Plaintiff's parents on December 4, 2017, in which the District acknowledged that Plaintiff's parents "were not in attendance at the Individualized Educational Program review on December 1, 2017 for [Plaintiff]." AR 263. In the letter, the District noted that Plaintiff's parents "indicated that you will not attend an IEP meeting until the IEE's are completed," including
"Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA." Amanda J., 267 F.3d at 892. The District's decision to hold an IEP meeting without Plaintiff's parents on December 1, a mere four days before the District filed its due process complaint, undoubtedly denied Plaintiff's parents the "opportunity to participate in the IEP formulation process," which is a sufficient basis to find that the parents' substantive rights have been infringed. Id. (citation omitted); see also W.G. v. Bd. of Trs. of Target Range Sch. Dist., 960 F.2d 1479, 1484-86 (9th Cir. 1992) (affirming the district court's ruling that the school district's development of an IEP without the involvement of the student's parents deprived the student of a FAPE), superseded in part by statute on other grounds.
However, attributing the absence of Plaintiff's parents from the IEP meeting to the District's unnecessary delay in filing for due process is less clear. It is apparent that Plaintiff's parents voluntarily withheld themselves from participating in the IEP meeting, a decision which might have been justified in light of the District's refusal to provide the information about Dr. Stephey's fees to Plaintiff's parents in response to their request. But the record does not suggest that, had the District filed for due process without unnecessary delay prior to the December 1 IEP, Plaintiff's parents would have attended the IEP meeting. Plaintiff's mother clearly indicated her position that "a legally compliant IEP cannot be completed without proper assessment," AR 278, suggesting that Plaintiff's parents were unwilling to attend an IEP meeting until Dr. Stephey's visual processing IEE was performed in full. Thus, the District's unnecessary delay in filing for due process, and the District's unreasonable failure to provide Plaintiff with the requested information about Dr. Stephey's fees, does not necessitate a finding that the District caused unnecessary delay in the completion of the actual visual processing assessment to be performed by Dr. Stephey.
Remand to the state administrative body is an appropriate disposition where the court "does not believe the record is sufficient to permit it to make the highly nuanced judgments necessary to resolve the claim." Jessica E. v. Compton Unified Sch. Dist., No. CV16-04356-BRO (MRWx), 2017 WL 2864945, at *7 (C.D. Cal. May 2, 2017) (internal quotation marks and citations omitted). Because the ALJ did not issue a determination as to whether the District's delay in filing for due process from September 12, 2017 to December 5, 2017 infringed upon the substantive rights of Plaintiff or his parents, and because the parties did not address this issue at all in their briefing before this Court, the Court has no basis to resolve that issue conclusively at the present time.
Therefore, in light of the Court's reversal of the ALJ's decision and the Court's finding that the District unnecessarily delayed in filing for due process on December 5, 2017, the Court REMANDS to the ALJ for the limited determination of whether the District's unnecessary delay affected Plaintiff's or his parents' substantive rights under the IDEA, and if so, what Plaintiff's remedy should be in light
The remainder of Plaintiff's legal position in this action is that the District unnecessarily delayed in resolving its own due process complaint by failing to agree to pay the cost cap under the Policy for Dr. Stephey's IEE once the District was aware that Plaintiff's parents were willing to pay all amounts in excess of the cost cap.
The ALJ addressed Plaintiff's argument in its decision in some capacity, even though that issue was not included in the pending issues raised in Plaintiff's due process complaint.
The ALJ's factual conclusion is clearly in error in light of the supplemental evidence submitted by the parties, which the ALJ apparently did not allow to be admitted into the administrative record. Whiteleather sent the District a letter on February 12, 2018 stating unequivocally that Plaintiff's parents "offer to pay the amount of Dr. Stephey's visual processing IEE that is over and above $1,000." Dkt. 28-5 at 1. Although Whiteleather also represented that she desired attorneys' fees in addition to the parents' offer, the February 12 letter directly rebuts the ALJ's conclusion that there was no evidence confirming that such an offer was made in mid-February. Thus, the ALJ's factual conclusion in this regard must be reversed.
That being said, the ALJ correctly determined that Plaintiff did not provide any evidence that any delay between February 2018 and April 2018 in resolving the District's due process complaint impaired the substantive rights of either Plaintiff or his parents. See AR 365. In the ALJ's decision, the ALJ determined that Plaintiff "never presented evidence at hearing" that any delay between mid-February and late April 2018 resulted in the denial of a FAPE for Plaintiff or significant impeded Plaintiff's parents in their attempt to participate in the decisionmaking process. Id. The ALJ elaborated that Plaintiff's conclusion that his parents were unable to participate in the decisionmaking process was merely a conclusion without supporting evidence, "e.g. facts such as testimony documents, etc." Id.
Plaintiff has presented no evidence or argument whatsoever to address this finding of the ALJ, so the Court has no basis to reverse the ALJ's decision in this regard. To the extent that Plaintiff purports to rely on the fact that Plaintiff's parents were excluded from the IEP meeting held by the District on December 1, 2017, see AR 263, that meeting occurred prior to the District's filing for due process on December 5. Therefore, even if the District unnecessarily delayed in resolving its due process complaint between February 2018 and April 2018 in light of a clear offer from Plaintiff's parents to pay all costs of Dr. Stephey's IEE above the District's cost cap, Plaintiff has not identified that this delay caused a denial of a FAPE or impeded with Plaintiff's parents' ability to participate in the IEP process.
Because any potential substantive repercussions of the District's unnecessary delay occurred prior to the District's filing of the due process complaint, Plaintiff did not meet his burden of proof to show entitlement to relief in his due process complaint for the period between February 12, 2018 and April 25, 2018, even if the District unnecessarily delayed in resolving its own complaint over that period in violation of 34 C.F.R. § 300.502(b)(2). Therefore, the Court need not address the parties' various arguments about the legal significance of Plaintiff's parents' offer to pay the excess of the District's cost cap in February 2018, or whether the settlement negotiations between the parties from February to April 2018 constituted "unnecessary delay" on the part of the District.
Based on the Court's findings of fact and conclusions of law set forth above, the Court REVERSES the ALJ's conclusion that the District did not unnecessarily delay in filing its due process complaint on December 5, 2017. Based on the evidence in the record, the District unreasonably refused to provide Plaintiff's parents with necessary information about how Dr. Stephey's IEE exceeded the District's cost criteria after the parents requested such information. The Court REMANDS to the ALJ for the limited determination, consistent with the findings in this Order, of whether the District's unnecessary delay affected Plaintiff's or his parents' substantive rights under the IDEA, and if so, what is the appropriate remedy for Plaintiff's due process claim.
However, the Court AFFIRMS the ALJ's conclusion that, even if the District
This action is stayed pending the ALJ's determinations on the remanded issues. See Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1160-61 (9th Cir. 1998) (per curiam) (finding that the district court exceeded its authority by terminating, rather than staying, the action after remanding to the due process hearing officer for a decision regarding the appropriateness of the student's specialized private education).
Plaintiff shall be deemed as the prevailing party in this appeal of the ALJ's decision pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I), but not as to the underlying administrative proceedings given the fact that the ALJ has yet to rule on the remanded issues.
IT IS SO ORDERED.
A party requesting a due process hearing under the IDEA "shall not be allowed to raise issues at the due process hearing that were not raised in the [due process complaint] ... unless the other party agrees otherwise." 20 U.S.C. § 1415(f)(3)(B); Cal. Educ. Code § 56502(i). Nevertheless, in the June 14, 2018 decision, the ALJ still analyzed the question of whether the District unnecessarily delayed in resolving the IEE dispute by failing to accept Plaintiff's purported offer to pay all costs of Dr. Stephey's evaluation in excess of the District's cost cap. See AR 364-65. Thus, the Court rejects the District's argument that the "only relevant facts" for the Court's review are those between August 2017 and December 5, 2017, the date the District filed its due process complaint. See Dkt. 39 at 13.
Id. at 2-3. The importance of a public agency initiating a due process hearing is vital for the agency to protect itself against unnecessarily expensive IEEs; as OSEP explained in a different advisory letter, "[i]f the public agency chooses not to initiate a due process hearing [to demonstrate that the parents' chosen evaluator does not meet the agency's IEE criteria], it must ensure that the parent is reimbursed for the evaluation," regardless of the cost of the IEE. Letter to Parker, 41 IDELR 155, at 2 (OSEP 2004) (emphasis added). The District relies on this authority to argue that, even if Plaintiff's parents were willing to pay all amounts in excess of the District's cost cap, the IEE itself still would not satisfy the District's criteria for independent evaluations, and therefore "the District's obligation to ensure that parents receive an IEE at public expense pursuant to section 300.502 would not be satisfied if it agreed to fund the IEE up to [its] $1,000 cost cap." Dkt. 48 at 19. The District takes the position that a written agreement between Plaintiff's parents and the District would be necessary to confirm that Plaintiff's parents were willing to forego their right to an IEE wholly at public expense. Id. Plaintiff essentially argues in response that a school district must prosecute its due process complaint to completion without unnecessary delay as part of the district's obligations to "fund or file" under § 300.502(b)(2), and that as soon as the District received notice of Plaintiff's parents' willingness to pay the excess of Dr. Stephey's cost cap, the District no longer had a basis to assert that Plaintiff sought an IEE inconsistent with the Policy's cost criteria and was obligated to withdraw its due process complaint immediately.
The Court has found no authority that addresses this issue directly. One district court acknowledged the same argument raised by a different school district but declined to address the argument because it was not presented to the ALJ in the underlying administrative proceedings. See Goleta, 2017 WL 700082, at *6-7 ("[T]his 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."). Similar to Goleta, here the parties did not expressly raise this argument before the ALJ, and the ALJ did not issue a ruling on this question. This issue is one of substantive education policy under the IDEA, and for the Court to issue an interpretation of the relevant statutory and regulatory provisions without a decision from the ALJ on this subject would be unnecessary and would amount to the Court substituting its "own notions of sound educational policy for those of the school authorities which [it] review[s]." Ojai, 4 F.3d at 1472 (internal quotation marks and citations omitted).
Nevertheless, the Court is inclined to believe that Plaintiff's parents may fairly be determined to be the prevailing party as to the District's withdrawn due process complaint, and therefore Plaintiff's parents may be entitled to recover reasonable attorneys' fees incurred in connection with that due process complaint. See J.B. v. San Jose Unified Sch. Dist., No. C 12-06358 SI, 2013 WL 1891398, at *4 (N.D. Cal. May 6, 2013) (rejecting the argument that a school district's voluntary withdrawal of a due process complaint does not amount to a "judicially sanctioned change in the parties' relationship" as necessary to award attorneys' fees under the IDEA since the district's dismissal of its complaint without prejudice "precluded [the district] from refiling its complaint after waiting seven months, because to do so would constitute `unnecessary delay'" and "would have essentially eliminated the right of the [d]istrict to further contest the IEE"). Nothing prevents Plaintiff from filing a new action seeking a prevailing party determination and an award of attorneys' fees for the District's withdrawn due process complaint within the state statute of limitations period applicable to such requests for attorneys' fees. See Meridian Joint Sch. Dist. No. 2 v. D.A., 792 F.3d 1054, 1064 (9th Cir. 2015) (holding that "a request for attorneys' fees under the IDEA is more analogous to an independent claim than an ancillary proceeding" and that therefore the timeliness of a request for attorneys' fees as the prevailing party is assessed "under the most analogous state statute of limitations"). As one district court noted, California's analogous limitations period for a request for attorneys' fees under the IDEA appears to be three years, as provided by Cal. Civ. Proc. Code § 338(a). See Ostby v. Oxnard Union High, 209 F.Supp.2d 1035, 1045 (C.D. Cal. 2002); Meridian, 792 F.3d at 1062-64 (citing approvingly to Ostby).
