M.M. v. Lafayette Sch. Dist., Nos. 12-15769/15770 (9th Cir. Oct. 1, 2014)
Abstract: In a 2-1 split, a U.S. Court of Appeals for the Ninth Circuit three-judge panel has ruled that a California school district’s failure to comply with the Individuals with Disabilities Education Act’s (IDEA) procedural requirement to provide parents with educational testing data deprived the parents of the opportunity to meaningfully participate in the creation of their son’s individualized education program (IEP) thereby denying the student a free appropriate public education (FAPE) under the IDEA. Because the panel’s majority reversed on the question of whether the procedural violation amounted to denial of a FAPE, it also remanded on the question of whether the parents were entitled to reimbursement for the audiology and processing assessments, sound-based therapy, and private reading programs that they provided for the student at their own expense.
Although the panel ruled on a number of other issues related to the ongoing dispute between the parents and the school district over the IEP and the services being provided to the student, this summary is limited to the issue of whether the procedural violation resulted in denial of a FAPE under the IDEA and the question of reimbursement.
Facts/Issues: C.M., a student with learning disabilities, attended Lafayette Elementary School. During the 2005-06 school year, Lafayette School District (LSD) implemented a new Response-to-Intervention (RTI) approach to assist struggling learners in the general education program. RTI was utilized as an intermediate step before referring a student for special education placement. Reading Specialist Carol Harris conducted “universal assessments” of all students in kindergarten through third grade three times each school year.
LSD staff then came together after each assessment period to discuss each student’s results to “pinpoint children that need support beyond . . . general instruction,” to guide the intervention—or additional instruction—the child would then receive, and to monitor the progress the student made in response to the implemented intervention. These meetings were called “Assessment Wall” meetings.
Through RTI, LSD identified C.M. as a student in need of reading intervention and began providing him additional instruction, which continued throughout his kindergarten year and into the following summer via a special summer class. His parents were never given the results of the full RTI Assessment.
C.M.’s kindergarten report card indicated some areas in reading and writing where he met grade level standards and some areas where he was approaching grade level standards. In first grade, C.M. continued to receive reading intervention. In October, his parents submitted a written request to the District to perform an evaluation of C.M. for learning disabilities. LSD convened two Student Study Team (SST) meetings with the parents in November and February before referring C.M. for the special education evaluation. C.M.’s RTI data graphs were not reviewed during the SST meetings.
LSD eventually completed a special education Assessment Plan on February 20, 2007, and on that same day obtained parental consent to move forward with the initial evaluation. The District conducted the evaluation in March and April. Based on the evaluation, the IEP team, which included the parents, determined that C.M. was eligible for special education because he had a phonological processing disorder. Based on this eligibility determination, the IEP team developed an education program in which C.M. would begin participating in the school’s Instructional Support Program (ISP).
C.M. participated in the ISP for the remainder of his first grade year. At the end of the year, his first grade report card indicated that he was below grade level standards in reading and approaching grade level standards in writing. In second grade, C.M. continued to participate in the ISP. In late November, his parents obtained a private evaluation from Doctor of Audiology Dimitra Loomos. Dr. Loomos’s evaluation revealed that C.M. had a central auditory processing disorder (CAPD) that was related to his learning disability. Dr. Loomos made a number of recommendations for C.M. in terms of environmental modifications, direct interventions, and compensatory strategies.
C.M.’s second grade teacher, Jody Carson, was aware of Dr. Loomos’s evaluation because she completed a report for Dr. Loomos, and one of the parents gave a copy of the final evaluation report to Ms. Carson, and an employee at the school’s front desk when school resumed after the holiday break. As of February 2008, some of C.M.’s RTI scores continued to decline.
On March, 18, 2008, LSD convened C.M.’s first annual IEP review meeting, and the IEP team developed a renewed IEP. The new IEP was not only identical to the previous IEP, but it also failed to reference C.M.’s CAPD or provide for any modifications or accommodations to address his unique deficits. C.M.’s parents consented to the renewed IEP.
About one week later, the parents received the final evaluation report for another private evaluation they obtained from Speech-Language Pathologist Deborah Swain, which found that C.M. “experiences a range from average ability to significant difficulty with specific skills of auditory-based language processing.” Throughout the spring, the parents paid for C.M. to attend sound-based therapy, and conversations between C.M.’s mother and teachers were ongoing concerning C.M.’s CAPD and the recommendations contained in both evaluation reports.
In May, an informal meeting was held at the parents’ request to discuss C.M.’s need for a speech and language assessment and clarification of the IEP to address C.M.’s CAPD. No amendments were made to the IEP. His end of the year report card for second grade indicated that he was below grade level standards in both reading and writing.
Three weeks into C.M.’s third grade year, on September 17, 2008, LSD convened an interim IEP team meeting at the parents’ request to discuss, inter alia, their concern over his lack of meaningful academic progress, the need for improved goals and objectives in the IEP, and amendments to the IEP to better address C.M.’s CAPD.
At the meeting, the parents also advised LSD that they disagreed with the 2007 Assessment results, and later that day they requested in writing an independent educational evaluation (IEE) at LSD’s expense. For two months, LSD did not respond to the IEE request and instead sought the parents’ consent to reevaluate C.M., but the parents did not consent and they did not withdraw their request for an IEE.
In December, the parents obtained an evaluation at their own expense by Licensed Psychologist Tina Guterman. Dr. Guterman’s educational evaluation, which included a review of C.M.’s prior evaluations and background, found that C.M. had auditory processing weaknesses and severe dyslexia and that his IEP services were insufficient to meet his needs. Dr. Guterman made a number of recommendations for C.M.’s instructional program. The parents subsequently withdrew C.M. from the ISP and enrolled him in an intense private reading and comprehension program that better addressed his multi-sensory integration deficits while they and LSD continued to negotiate his IEP. Meanwhile, the IEP team participated in a series of facilitated meetings over a period of seven months and the parents ultimately refused to agree to a renewed IEP for C.M. until after his 3rd grade year.
On November 18, 2008, the same day as the first facilitated IEP team meeting, the parents filed a compliance complaint with the California Department of Education (CDE), alleging that LSD failed to comply with the IDEA procedures after their request for an IEE. Early in December, LSD responded to the IEE request by filing a due process complaint with the California Department of General Services, defending the 2007 Assessment. LSD also asked CDE to stay its investigation of the parents’ complaint because the IEE issue was pending in the Office of Administrative Hearings ( OAH) and CDE closed its investigation.
After a three day hearing, the administrative law judge (ALJ) issued a decision holding that LSD unnecessarily delayed in defending the 2007 Assessment and also found that the parents waited too long to request the IEE. The ALJ therefore ordered LSD to reimburse the parents for only half the cost of Dr. Guterman’s evaluation. The ALJ also found that conditions warranted reevaluation, and permitted the District to proceed with new assessments of C.M.
On April 16, 2009, the parents filed a due process complaint with the OAH, alleging 16 separate claims against LSD regarding its identification of C.M. as a child with a disability and its development of an assessment plan, the appropriateness of the 2007 Assessment, and LSD’s development and oversight of the IEP. In August of that year, the parents filed a second due process complaint with the OAH, alleging in four claims that LSD denied C.M. a FAPE. The ALJs dismissed the claims that arose before April 16, 2007, as being outside the statute of limitations, and after an eleven day hearing, held that the 2007 Assessment was appropriate, that LSD did not deny C.M. a FAPE, and that C.M. was not entitled to receive reimbursement for his private compensatory education services.
Between August 2009 and September 2010, the parents initiated three lawsuits against LSD and its Director of Student Services Dr. Dana Sassone, the Lafayette Board of Education, CDE and its Superintendent, and the California Department of General Services and its Director, in federal district court, seeking reversal of the OAH decisions, attorney’s fees, and remedies for various violations of the IDEA, § 504 of the Rehabilitation Act, and the Constitution. The district court issued multiple orders dismissing portions of the lawsuits and consolidating the remaining claims. On February 7, 2012, the district court issued its final order, finding in favor of LSD on all but one claim, and issued its final judgment on March 8, 2012. The parents appealed.
Ruling/Rationale: The Ninth Circuit panel, with one judge dissenting, reversed the district court’s ruling that LSD had not denied C.M. a FAPE. Although the panel’s majority agreed that LSD had not failed to incorporate the RTI data into the initial evaluation, it held that the school district failed to provide the parents with the RTI data in violation of IDEA’s procedural requirements. It concluded that LSD “did not procedurally violate the IDEA with respect to C.M.’s RTI data and the 2007 Assessment.” However, it found LSD had violated IDEA “by failing … to furnish the parents with the data, thereby making the parents unable to give informed consent for both the initial evaluation and the special education services C.M. received.”
After reviewing the relevant provisions of the IDEA and the U.S. Department of Education’s implementing regulations, the majority determined that LSD “procedurally violated the IDEA by failing to provide the entire IEP team with C.M.’s RTI data for the purpose of making his eligibility determination.” It pointed out that in the absence of having the data, C.M.’s parents were unable to give informed consent for both the initial evaluation and the special education services he received.
The majority found that the fact that the parents did not request information until C.M. reached third grade did not negate LSD’s procedural duty to share that data with the parents “as early as C.M.’s first grade year, when it sought to obtain their informed consent for the initial evaluation.” It also pointed out that LSD had a procedural duty to provide the IEP team with the RTI data at the April 18, 2007, meeting for making the eligibility determination. As a result, it held LSD “violated the procedural safeguards of the IDEA by not providing the parents with an opportunity to examine all records relating to C.M.”
Having concluded that LSD had procedurally violated IDEA by failing to provide the parents with complete RTI data, the majority then sought to answer the question of whether that procedural violation resulted in C.M. being denied a FAPE. It concluded that the procedural violation “prevented the parents from meaningfully participating in the IEP process,” thus denying C.M. a FAPE. The majority said, “Without the RTI data, the parents were struggling to decipher his unique deficits, unaware of the extent to which he was not meaningfully benefiting from the ISP, and thus unable to properly advocate for changes to his IEP.”
In light of its reversal of the district court’s ruling on whether C.M. had been denied a FAPE, the majority concluded that the question of whether the parents are entitled to reimbursement under IDEA for the private educational services and assessments they paid for should be remanded to the lower court.
Judge Rawlinson issued a dissenting opinion. Her dissent took issue with the majority’s view of the RTI model utilized by LSD to measure achievement levels of all students in the school. She emphasized that RTI was not a mechanism used by LSD to identify students in need of special education. Despite that fact, the judge pointed out that the majority held that LSD’s failure to provide these test results to C.M.’s parents resulted in a violation of the IDEA. She contended that the ALJ had issued a detailed decision, which should have been given deference, in which a clear distinction was made “between use of the RTI as a means to assign students to their respective classrooms and use of the RTI as an assessment tool to determine eligibility for special education services.”
Judge Rawlinson said¸ “Rather than deferring to the ALJ’s considered resolution of this issue, the majority embarks upon a de novo review of the record to reach a conclusion contrary to that of the ALJ and at odds with the record.” She added, “Because the record reflects that the RTI assessments were not used to determine C.M.’s eligibility for special education services, this provision does not support the majority’s conclusion that the School District was required to provide the RTI data to C.M.’s parents under the IDEA.”
According to the judge, because LSD choose not to use the RTI as an assessment model, it did not have an obligation under the IDEA “to review or provide the RTI data in conjunction with the evaluation of C.M.’s eligibility for special education services.” She also rejected the parents argument that LSD was required under the provisions of § 1414(b) of IDEA to notify the parents of the description of the evaluation procedures the educational agency “proposes to conduct.” Judge Rawlinson pointed out that because LSD had not proposed to utilize the RTI model to evaluate C.M.’s eligibility for special education services, § 1414(b) did not mandate notification of the RTI data.
M.M. v. Lafayette Sch. Dist., Nos. 12-15769/15770 (9th Cir. Oct. 1, 2014)
[Editor’s Note: In January 2012 , Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in M.B. v. Hamilton Southeastern Sch. holding that neither a school district’s procedural errors nor its substantive errors in developing a special education student’s individualized education plan (IEP) under the Individuals with Disabilities Education Act (IDEA) resulted in the denial of a free appropriate public education (FAPE). The panel concluded that the student’s parents had failed to present sufficient evidence that the student was not making educational progress under the IEP.]