Hood v. Encinitas Union School Dist.

• Decision Date: 09 April 2007
• Docket Number: No. 04-57007.,04-57007.
• Citation: 486 F.3d 1099
• Parties: Anna HOOD; Lynn Hood; Richard Hood, Plaintiffs-Appellants, v. ENCINITAS UNION SCHOOL DISTRICT and Does 1-10,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 1099

Anna HOOD; Lynn Hood; Richard Hood, Plaintiffs-Appellants, v. ENCINITAS UNION SCHOOL DISTRICT and Does 1-10,^* Defendants-Appellees.

No. 04-57007.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 17, 2006.

Filed April 9, 2007.

Amended May 11, 2007.

Eric B. Freedus (briefed and argued), Frank and Freedus, A P.C., San Diego, CA, for the plaintiffs-appellants.

Paul V. Carelli (briefed) and Jack M. Sleeth, Jr. (argued), Stutz, Artiano, Shinoff & Holtz, A P.C., San Diego, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Roger T. Benitez, District Judge, Presiding. D.C. No. CV-03-00778-RTB.

Before: CORNELIA G. KENNEDY,^** CYNTHIA HOLCOMB HALL, and MICHAEL DALY HAWKINS, Circuit Judges.

KENNEDY, Senior Circuit Judge.

Anna Hood and her parents (hereinafter "appellants" or "the Hoods") brought this claim alleging that the Encinitas Union School District (hereinafter "appellee" or "the school district") violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1419 (2000), by refusing to provide Anna with special education services. This claim seeks reimbursement for private school education that the Hoods obtained for Anna after withdrawing her from the public school system. A California special education hearing officer denied the Hoods relief, and the district court affirmed.

On appeal, the Hoods offer two grounds under which Anna should be categorized as a child with a disability per 20 U.S.C. § 1401(3) and is therefore entitled to special education. First, they assert that Anna has a "specific learning disability" because she exhibits a severe discrepancy between her achievement and intellectual ability in one or more of the academic areas enumerated in Cal. Educ.Code § 56337 (2002), as calculated per the formula provided in Cal.Code Regs. tit. 5, § 3030(j)(4)(A) (2002), and the discrepancy cannot be corrected through other regular or categorical services offered within the regular instructional program. Second, they assert that Anna has "other health impairments" under 20 U.S.C. § 1401(3)(A) and Cal.Code Regs. tit. 5, § 3030(f). The Hoods argue that Anna, by reason of either her "specific learning disability" or her "other health impairments," needs special education and related services. They seek to obtain reimbursement for the expenses they incurred for private school education, which the Hoods commenced during Anna's fifth grade 2001-2002 school year following the school district's determination that Anna was ineligible for special education, as well as recoupment of fees and costs related to this action.

After reviewing the evidence before the hearing officer and additional evidence submitted to the district court, we find that the district court's acceptance of the hearing officer's determination that Anna was not legally entitled to receive publically-funded special education was not in clear error. As a result, we affirm.

BACKGROUND

At the time the California special education hearing officer issued a decision, Anna Hood was 10 years old and, according to her report cards, was performing at grade-level appropriate/average or above average levels in the public school classroom.¹ While Anna's second, third, fourth, and fifth grade reports chronicle her consistent difficulties completing tasks, turning in homework on time, and keeping her belongings organized, Anna's scores on the Stanford Achievement Test (SAT-9) have placed her above the fiftieth percentile with near uniformity.

Meanwhile, Anna's performance on various intelligence tests indicates high intellectual ability. Anna's scores on the Woodson-Johnson Test of Achievement-III, administered by resource specialist Patricia Hotz, measured Anna's achievement in eleven different areas, and in all but one area, Anna's scores were average or better. One (writing sample) was in the "very superior" range, eight were in the "high average" range, one (reading fluency) was in the "average" range, and one (math fluency) was in the "low average" range. She received a Wechsler Intelligence Scale for Children-III verbal score of 127, performance score of 110, and full scale score of 121, as reported by school psychologist Susan Jordan. Anna's consulting neuropsychologist Nancy Markel administered the Comprehensive Test of Nonverbal Intelligence, which produced a geometric I.Q. score of 136, a pictorial I.Q. score of 121, and a nonverbal I.Q. score of 131. These scores place her ability above average.

Anna has been the subject of a number of medical assessments. She was born following a difficult pregnancy and has a significant medical history, which includes multiple ear infections that required tube placement, as well as farsightedness and strabismus. In January 2001, Dr. Joseph Gleeson, a pediatric neurologist, upon reviewing the results of a previously administered electroencephalogram, interpreted Anna's condition as consistent with a possible seizure disorder and prescribed medication accordingly. His letter also noted a significant family history of seizures. After examining Anna, Dr. Gleeson suspected that Anna had the same condition as her older brother, though he expressed that it was "not entirely clear" that Anna was having seizures. Dr. Gleeson viewed such a seizure disorder as an explanation of Anna's apparent spells of distractibility and tendency to miss things that had happened.

After a subsequent visit with Anna in April 2001, Dr. Gleeson stated unequivocally that Anna "had an EEG that had significant abnormalities consistent with epilepsy" and observed that Anna suffered from "increasing distractibility and difficulty staying on task that appeared to come in spells." He recommended that Anna be evaluated for a possible attention deficit disorder because of her reported difficulties staying on task and her increased distractibility. Anna eventually began taking medication for the attention problem.

Prompted by the receipt of Dr. Gleeson's initial report, the school district instituted an accommodation plan in accordance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in February 2001.² The plan included preferential seating in the classroom, use of a graphic organizer and AlphaSmart keyboard, one-step directions, visual support for instruction and concepts, frequent prompts and checks for understanding, and daily teacher checks for homework assignments.

On May 15, 2001, Anna's advocate, Sara Frampton, wrote to the district to request a special education evaluation. In this letter, Frampton acknowledged that "[Anna] ha[d] recently been offered a 504 plan" but expressed her concern that the plan had "not been based on a thorough assessment in all areas of potential or suspected disability." The district's psycho-educational assessment, performed by resource specialist Patricia Hotz and school psychologist Susan Jordan in August and September 2001, included a battery of tests and classroom observations. Jordan and Hotz ultimately issued a report explicitly stating that "Anna has been diagnosed with [a] Seizure Disorder . . . for which she takes medication" and "[Anna's] Seizure Disorder adversely affects her ability to focus and pay attention in the regular classroom." However, Jordan and Hotz concluded that "[b]ased on State and Federal guidelines, Anna does not qualify for Special Education services at this time, as she is performing at least in the average range academically, both in the classroom and in one-on-one testing." Additionally, the report noted Anna's eligibility for a Section 504 accommodation plan to assist Anna's functioning in the regular classroom and advised that the IEP team consider all information when determining eligibility, class placement, and goals for Anna.

On October 5, 2001, Jordan and Hotz convened with Anna's general education teacher, advocate, and mother for an IEP meeting. The school district determined that Anna did not qualify for special education services, specifically concluding that "Anna does not have a learning disability."

In December 2001, the school district reevaluated the Section 504 plan in place and determined that it should be continued, changing it only to add an accommodation addressing Anna's mother's concern about her daughter's self-esteem. Dissatisfied with the school district's provision of services, Anna's parents withdrew their daughter from the school district in February 2002, enrolled her in The Winston School, a private school for children with learning differences, and appealed to the California Special Education Hearing Office, seeking to recover the amounts expended for tuition and assessments.³

PROCEDURAL HISTORY

On February 25, 2003, a hearing commenced before an officer of the California Special Education Hearing Office. There, the officer placed the burden of proving compliance with IDEA on the school district. Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir.1996). After presiding over four days of the presentation of oral and documentary evidence, the hearing officer was persuaded that Anna's impairments did not necessitate special education or related services. The officer determined that the school district did not violate IDEA and denied reimbursement to Anna's parents for their child's private placement. The hearing officer found that, in general, the results of Anna's testing did not reveal a discrepancy equal to or greater than 1.5 standard deviations, the regulatory measure of a discrepancy that is severe. See Cal.Code Regs. tit. 5, § 3030(j)(4)(A). While he did find that a particular math fluency score might support the finding of a severe discrepancy, he dismissed the issue based on Section 3030(j)(4)(A)'s instructions that no single score or product of scores shall be used as the sole criterion and that a discrepancy may only be considered a severe discrepancy when it is...