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D.A. v. Meridian Joint School District No. 2

United States District Court, Ninth Circuit

January 6, 2014

D.A. and J.A., on behalf of themselves and as legal guardians and parents of M.A., an individual with a disability, Plaintiffs,


CANDY W. DALE, District Judge.


This is an administrative appeal under the Individuals with Disabilities Education Act ("IDEA"). 20 U.S.C. § 1400 et seq. Plaintiffs D.A. and J.A., the parents of M.A. (a high school student diagnosed with high-functioning autism), seek review of Hearing Officer ("HO") Edwin Litteneker's decision entered in July of 2012. HO Litteneker upheld the determination by Defendant, the Meridian Joint School District No. 2 ("MSD"), that M.A. was not eligible for special education services and, on this basis, concluded M.A. was not denied Free and Appropriate Public Education under the IDEA.

This case is one of a trilogy of cases concerning M.A.'s educational needs. D.A. and J.A. ex rel. M.A. v. Meridian Joint Sch. Dist. No. 2 and Indep. Sch. Dist. of Boise City involved claims by M.A.'s Parents under Section 504 of the Rehabilitation Act as well as the Americans with Disabilities Act. D. Idaho Case No. 1:11-cv-00119-CWD (hereinafter " D.A.-119 "). In that case, after a nine-day trial, a jury determined M.A. was not denied a Free and Appropriate Public Education ("FAPE") within the meaning of the Rehabilitation Act or the ADA. D.A.-119, Dkt. 127 (D. Idaho July 26, 2013) (Special Verdict). Meridian Joint Sch. Dist. No.2 v. D.A. and J.A. ex rel. M.A., an appeal from the decision of HO Guy Price under the IDEA, presented the issue of whether M.A. was entitled to an Independent Education Evaluation ("IEE") at public expense after MSD denied M.A.'s Parents' request for such an evaluation. D. Idaho Case No. 1:11-cv-00320-CWD (hereinafter " D.A.-320 "). There, the Court affirmed HO Price's conclusion that M.A. was entitled to an IEE at public expense.

The issue in this administrative appeal is whether, based on the IEE and other evaluations, M.A. is eligible for special education services from MSD. In particular, the Court must determine whether MSD's ineligibility determination met the IDEA's procedural and substantive requirements. On the procedural side, the primary issue is whether MSD infringed on Parents' right to meaningfully participate in the eligibility evaluation. The substantive issues boil down to whether a preponderance of the evidence demonstrates M.A. does not qualify for special education under the IDEA and the 2009 Revision of Idaho's Special Education Manual ("Idaho Manual"). For reasons explained more fully below, the Court will affirm HO Litteneker.


In 2004, M.A.'s Parents moved from California to Idaho and enrolled M.A. at MSD. M.A. had received special education under the IDEA in California and his Parents provided MSD with information related to M.A.'s previous diagnoses of expressive-receptive language disorder, central auditory processing disorder, possibility of dyslexia and dysgraphia, and possibility of Asperger's disorder. M.A. received special education under the IDEA while enrolled in MSD from the fifth grade (2004-2005 school year) through the eighth grade (2007-2008 school year).

In April 2008, following M.A.'s three-year reevaluation by MSD pursuant to the IDEA, M.A.'s Individualized Educational Program ("IEP") team met and determined that M.A. was no longer eligible to receive special education services. In response, M.A.'s Parents, at their own expense, obtained an evaluation by Dr. Timothy Leavell, who diagnosed M.A. with Asperger's Disorder. M.A.'s Parents provided Dr. Leavell's report to MSD and requested that MSD conduct an evaluation of M.A. to reassess his eligibility for special education. MSD concluded that, rather than an IEP under the IDEA, M.A. would receive various accommodations at the start of his ninth grade year (Fall 2008) under Section 504 of the Rehabilitation Act.

In April 2009, M.A. was arrested and placed in the Ada County Juvenile Detention Center, where he remained incarcerated until September 2010 pursuant to a criminal sentence. During his incarceration, the Boise Independent School District No. 1 ("BSD"), the district in which the detention facility is located, assumed responsibility for educating M.A.. Following negotiations with M.A.'s Parents, BSD issued an eligibility report dated February 2010, which found M.A. had strong indications of Asperger's disorder (high-functioning autism). However, the report concluded M.A. was not eligible for special education services, because there was no evidence that M.A.'s disabilities adversely affected his educational performance. The report also noted that BSD conducted its evaluation in a setting (the detention facility) where students were able to work at their own pace with individualized support under a flexible curriculum.

In late September 2010, seven days after his release from the detention facility, M.A. returned to Centennial High School in MSD as an eleventh grade student. Prior to his return, M.A.'s mother requested MSD conduct a comprehensive IEP evaluation. MSD denied this request because BSD had already determined M.A.'s disability did not affect his educational performance and because there was no indication that a reevaluation was necessary. M.A.'s Parents disagreed with this assessment and, in January 2011, formally requested MSD provide an IEE at public expense. In making this request, M.A.'s Parents contended the BSD evaluation was conducted in a highly structured environment and was not adequately reflective of M.A.'s needs at Centennial High School. MSD denied the request and filed for a due process hearing, seeking confirmation from a hearing officer that the evaluation conducted by BSD, and adopted by MSD, was appropriate and that M.A. did not qualify for special education services.

The assigned HO, Guy Price, presided over a three-week due process hearing and entered a Memorandum Decision and Order dated June 6, 2011. HO Price determined MSD inappropriately relied on the BSD evaluation because the detention center and Centennial High School presented dissimilar educational settings. But HO Price did not reach the second issue raised by MSD: whether M.A. qualifies for special education under eligibility criteria set forth in the IDEA and the Idaho Special Education Manual. 8HO Price concluded a determination on the second issue was premature until MSD completed an appropriate evaluation with the benefit of the IEE. MSD appealed HO Price's decision in July 2011. In March 2013, the Court affirmed HO Price's decision, concluding that M.A. was entitled to an IEE at public expense. D.A.-320, Dkt. 63 (D. Idaho March 20, 2013). Final judgment in D.A.-320 was entered on November 25, 2013. Id. Dkt. 112.[1]

While D.A.-320 proceeded before the Court, Parent's obtained-at their expense-an IEE from Dr. Barbara Webb in August 2011.[2] Dr. Webb reviewed M.A.'s educational records and based her evaluation on assessments by several other professionals, including an occupational therapist, a speech-language pathologist, a neuropsychologist, and a behavioral specialist. On September 13, 2011, M.A.'s Parents delivered to MSD an Amended IEE that incorporated the evaluations noted above as well as comments from teachers and professionals employed by BSD and MSD. The next day, M.A.'s Parents formally requested an eligibility meeting.

After two follow-up meetings, MSD provided Parents with a referral for a special education evaluation, the plan for that evaluation, and a consent form. However, the eligibility evaluation did not begin until December 19, 2011, because MSD and M.A.'s Parents could not agree on the terms of Parents' consent to the evaluation or the plan for evaluation itself. By the time M.A.'s Parents filed a request for due process hearing with MSD in January 2012, the seventeen-member eligibility team[3] had yet to determine whether M.A. was eligible for special education services.

M.A.'s Parents' initial due process complaint alleged, inter alia, MSD had not timely evaluated M.A. pursuant to Parents' request for a special education eligibility evaluation in September 2011. In response, MSD moved to dismiss the due process complaint or, alternatively, stay the administrative proceeding until MSD completed its eligibility determination. But, before these motions could be resolved, MSD determined, in late February 2012, that M.A. was not eligible for special education. This determination, detailed in MSD's Eligibility Report, (Dkt. 12, Resp.'s Ex. 708), was based on an extensive record of assessments and observations of M.A., including those made by M.A.'s mother and the third-party professionals who contributed to the IEE. Shortly thereafter, M.A.'s Parents filed a second due process complaint, this time challenging MSD's ineligibility determination.

The two due process complaints were consolidated into a single case, involving eleven contested issues. M.A.'s Parents challenged the substantive bases for MSD's determination as well as procedural matters such as timeliness of the evaluation and the adequacy of Parents' participation. HO Litteneker presided over a hearing on the consolidated matter, which spanned ten days from late April through late June 2012, included testimony from twenty-two witnesses, and involved hundreds of exhibits.

Prior to the hearing, HO Litteneker ruled against Parents on several motions and maintained these rulings upon reconsideration. Specifically, the HO declined to admit prior testimony and reports by Dr. Craig Beaver and Dr. Barbara Webb from the administrative proceedings underlying D.A.-119 (the ADA and § 504 case) and D.A.-320 (the IEE case). HO Litteneker was "not persuaded that there is any link for the purposes of determining the relevancy of Dr. Webb and Dr. Beaver's testimony in connection with this particular question as to whether the student is eligible for Special Education."[4] (Dkt. 12, Tr. 26:17-24.) In addition, the HO excluded prior testimony from several other experts retained by Parents, finding that Parents did not show these witnesses were unavailable and noting that many of their opinions were incorporated into MSD's eligibility evaluation. M.A.'s Parents also contested the HO's exclusion of certain testimony by M.A.'s peer mentor, which related to events before August 2011. Finally, HO Litteneker declined to compel production of certain test protocols administered by the Centennial High School psychologist, because there was no showing of relevance.

HO Litteneker issued his Findings of Fact, Conclusions of Law and Decision on July 5, 2012.[5] The HO thoroughly reviewed the facts regarding M.A. and his disability; MSD's eligibility determination, including the IEE and input from M.A.'s mother; and M.A.'s participation in the general education curriculum at Centennial High School. He described the governing legal standards before making the following legal conclusions:

(1) MSD conducted a timely eligibility evaluation; (2) MSD complied with the IDEA's Child Find requirements; and (3) MSD conducted a sufficient eligibility evaluation. HO Litteneker concluded the eligibility evaluation was sufficient because the substantial record indicated MSD:

(a) considered the relationship between M.A.'s medical condition, however characterized, and his educational performance;
(b) used a variety of assessment techniques;
(c) considered the IEE results;
(d) allowed for parental participation and considered parental input;
(e) adequately assessed general skills; and
(f) did not predetermine M.A.'s ineligibility.

Accordingly, HO Litteneker found for MSD on every claim asserted and denied Parents' requested relief.

In August 2012, M.A.'s Parents timely appealed the HO's decision to the Court. (Dkt. 1.) The Complaint requests an order reversing HO Litteneker's decision, a declaration that MSD violated the IDEA, compensatory damages for parent-funded support and assessments of M.A., compensatory education, attorney fees, costs, and such other relief as the Court may deem appropriate. ( Id. ) MSD provided a copy of the administrative record to the Court on February 19, 2013.[6] Thereafter, the Court approved the parties' stipulated motion on a briefing schedule in this matter, (Dkt. ...

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