By v. Lemon Grove Sch. Dist.
| Decision Date | 23 February 2017 |
| Docket Number | Case No.: 3:16-cv-0803-CAB-(BLM) |
| Parties | A.V. By and Through His Guardians Ad Litem ANDREA VAZ ANTUNES and ANTONIO VAZ ANTUNES, Plaintiff, v. LEMON GROVE SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter comes before the Court on Plaintiff A.V.'s ("A.V.") Motion for Summary Judgment [Doc. No. 23] and Defendant Lemon Grove School District's ("District") Cross Motion for Summary Judgment . The motions have been fully briefed and the Court finds it suitable for determination on the papers submitted and without oral arguments in accordance with Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court DENIES both motions and upholds the decision of the Administrative Law Judge ("ALJ").
A.V. is a 12-year-old boy who resides within the District and suffers from dyslexia, auditory working memory, and visual processing deficits. A.V. was first determined to be eligible for special education in December 2007.
In the beginning of 2014, Andrea Vaz Antunes ("Mother") and Antonio Vaz Antunes ("Father") (collectively "Parents") removed A.V. from the District school and placed him in Banyan Tree Foundations Academy ("Banyan") a non-public school. [Administrative Record ("A.R.") at 1216-17.1] On March 3, 2014, Parents and District entered into a settlement agreement. [Id. at 1008-19.]
The settlement agreement required District to reimburse Parents for tuition they had already paid at Banyan, as well as to set up an account for reimbursement expenses for tuition and transportation costs between the date of the settlement agreement and December 19, 2014. [Id.] Under the agreement District was required to conduct A.V.'s triennial assessment during the Fall of 2014 and convene a triennial Individual Educational Program2 ("IEP") meeting between October 19, 2014, and December 19, 2014. [Id. at 1010.]
On December 15, 2014, an IEP team meeting was held which included Parents, A.V.'s advocate, Dr. Sara Frampton, and individuals from Banyan and District. [Id. at 328-358.] The meeting lasted two hours and some, but not all, of A.V.'s assessment results were discussed. [Id. at 353-56] Determining a placement for A.V. was a topic of discussion but no decision was reached and no offer was made. [Id. at 2329.] Dr. Framptonrequested District continue to fund A.V.'s education at Banyan past December 19, 2014, District's legal counsel responded that the request would be discussed with Parents' counsel. [Id. at 353.] District did not identify a District school where A.V. should enroll while his IEP was being developed3. The meeting adjourned with all team members agreeing to reconvene as soon as possible in order to complete the IEP. [Id. at 355, 1315.]
In an email exchange subsequent to the December IEP meeting, Dr. Frampton and District's legal counsel discussed possible non-public school options for A.V., including NewBridge. [Id. at 958-59.] On December 20, 2014, District's legal counsel informed A.V.'s representatives that District was taking the position was that it had not caused any delay in convening the triennial IEP mandated by the settlement agreement and stated that District would not continue the funding of Banyan. [Id. at 964.] The communication did not identify which District school or classroom A.V. should report to and no offer of an alternative placement pending development of A.V.s new IEP was provided. [Id.] The email continued "Lemon Grove is open to considering all placement options at the upcoming IEP team meeting, including Banyan Tree." [Id.] On December 30, 2014, A.V.'s legal counsel requested that District, given the lack an offer of a free appropriate public education ("FAPE") from District, continue to fund Banyan. [Id. at 360-61.] District did not respond to this request.
On January 21, 2015, Parents' counsel were provided with a draft of A.V.'s goals that were to be discussed at the upcoming IEP team meeting. [Id. at 1035-51.] The email stated that Dr. Burkett had been unsuccessful in her attempts to contact Steve Mayo, Director of NewBridge, to discuss whether NewBridge would be an appropriate placement option for the team to discuss at the upcoming meeting. [Id. at 1035; see also 1543-44, 1605-06.]
On January 23, 2015, IEP team meeting was reconvened. [Id. at 363-64.] The IEP team reviewed the results of all District assessments and Banyan progress reports. [Id; see also 1749-55.] Modifications were made to A.V.'s eligibility categories and proposed goals for A.V. were agreed upon. [Id.] The team agreed that neither a general education classroom nor a special day classroom at a District school would meet A.V.'s needs. [Id. at 364.] District offered A.V. placement at a non-public school but did not believe that Banyan was an appropriate facility4. [Id. at 1756-57, 1826, 2148-49.] Dr. Frampton and Parents wanted A.V. to remain at Banyan to the end of the 2014-2015 school year but suggested NewBridge as an option for a non-public school. [Id. at 364, 2252.] District's representatives would not agree to A.V. remaining at Banyan but did not propose an alternative school. [Id. at 364, 1766]. Dr. Burkett informed Parents that District would investigate other possible non-public placements and propose an alternative school. [Id. at 2253.]
Following the initial IEP team meeting in December 2014, District and Parents engaged in settlement discussions which ended in April 2015 with no agreement having been reached. [Supplemental Record ("S.R.") at 4-90.5] In the wake of the breakdown of the settlement discussions Dr. Burkett began investigating possible non-public school placements for A.V. [A.R. at 1763-64.] Sierra was identified as a potential option for A.V. that had an immediate opening. [Id. at 1764-65, 1772.] During this period, A.V. remained at Banyan, with Banyan temporarily waiving tuition charges for him. [A.R. at 1900, 1903-04.]
On April 24, 2015, Parents on behalf of A.V. filed a due process hearing request with the Office of Administrative Hearings ("OAH") ("the OAH Complaint"). [Id. at 1-8.] The OAH complaint was amended on May 13, 2015, to include District's offer to place A.V. at Sierra Academy. [Id. at 13-24, 36.]
On April 26, 2015, District's legal counsel wrote to A.V.'s legal counsel offering A.V. immediate placement at Sierra once Parents consented to the offer of placement. [Id. at 367-69.] In the letter, District agreed to reimburse Parents for tuition at Banyan subject to proof and documentation of attendance. [Id.; see also 1785-86.] A copy of the IEP document developed at the December 15, 2014, and January 23, 2015, IEP meetings was enclosed. [Id. at 370-404.]
On May 6, 2015, District's counsel wrote to A.V.'s legal counsel asking for any revisions A.V. or his representatives were proposing regarding his IEP. [Id. at 405-06, 978.] District reiterated its offer of placement at Sierra and offered to facilitate Parents' tour of Sierra. [Id. at 405, 978, 1780-81.] May 20, 2015, was proposed as the next IEP team meeting date. [Id. at 405, 407, 978-79.] Before the May IEP team meeting, Parents toured Sierra without involving the District.6 [Id. at 1034, 1275.]
On May 20, 2015 an IEP team meeting was convened. [Id. at 411-38.] A.V.'s Parents, legal representatives for both parties, Dr. Frampton, and numerous District employees were present. [Id. at 411.] No representative from Sierra attended the meeting.7 [Id. at 1515-16.] Numerous issues of concern to Parents were discussed and the IEP wasmodified and revised in the two hour meeting. [Id. at 411.] District made an offer of placement and services to A.V. that included: placement at a non-public school, with round-trip transportation; speech and language therapy twice a week, for 25 minutes a session; occupational therapy services 30 minutes a week; and social work services of 1,200 minutes a year. [Id.] The District reiterated that it was offering placement at Sierra, which had an immediate opening and was closer to his home and had a reading teacher and reading interventions. [Id. at 411, 1795-97.] NewBridge did not have an opening for A.V. and was further away than Sierra. [Id; see also 1544, 1795-96.] Dr. Frampton requested District fund Banyan for the remaining three weeks of the school year, and stated that NewBridge would serve A.V. well and had an opening starting at the beginning of the extended school year. [Id.] District agreed to respond to these requests by the end of the school year. [Id.]
On May 26, 2015, District responded to Plaintiff's OAH complaint. [Id. at 986-92.] In its' response District extended its April 26, 2015, non-confidential settlement offer to the end of the school year and agreed to reimburse Parents for Banyan tuition and mileage reimbursement dating back to January of 2015 to the end of the 2014-2015 school year. [Id. at 991, 1786-87.] District continued to offer Sierra as FAPE. [Id. at 991.]
On June 5, 2015, Parents declined District's May 28, 2015, Statutory Settlement Offer claiming that the terms of the offer were overly broad and lacked specificity. [Id. at 601-602, S.R. at 123-24.] On June 20, 2015, Parents' counsel served notice on District of Parents' intent to change A.V.'s placement from Banyan to NewBridge for the 2014-2015 extended school year. [A.R. at 994.]
On June 24, 2015, Parents' counsel contacted District with a proposed resolution of the OAH matter, sought reimbursement for Banyan and mileage expenses, requested reimbursement for extended school year at NewBridge, placement at NewBridge for the 2015-2016 school year, and student's stay-put placement at NewBridge pending an IEP meeting at the beginning of the school year, an attorney fees and costs in the amount of $6,000.00. [Id. at 603-04.]
On July 1, 2015, Parents enrolled A.V. at NewBridge, for the extended school year at a cost of $2,250. [Id. at 1525, 1551.] Parents were billed...
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