ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[Re: ECF 45]
In this appeal pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., plaintiff Cupertino Union School District (“District”) seeks judicial review of adverse rulings rendered by Administrative Law Judge Margaret Broussard (“ALJ”) of the California Office of Administrative Hearings (“OAH”) on two of three issues presented at a five-day due process hearing. The District also appeals the ALJ’s award of compensatory services to student K.A. based on those adverse rulings. Defendant and counterclaimant S.A. is K.A.’s father (“S.A.” or “Father”), who is proceeding pro se to vindicate his independent right to a free appropriate public education (“FAPE”) for his child pursuant to the IDEA. Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). Father seeks judicial review of the ALJ’s ruling on the third issue, on which the ALJ ruled in the District’s favor.
Presently before the Court is the District’s Motion for Summary Judgment.
I. BACKGROUND
A. Statutory Background
This appeal concerns student K.A., a disabled child who is eligible for special education and related services under the IDEA. The IDEA provides state and local agencies with federal funding to assist
To achieve this purpose, the IDEA provides for a cooperative process between parents and schools that culminates in the creation of an Individualized Education Plan (“IEP”) for every disabled student. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). The IEP is developed by a team comprised of the parents, at least one regular education teacher and one special education teacher of the student, a representative of the local educational agency, and, at the district or parents’ discretion, others knowledgeable about the student. 20 U.S.C. § 1414(d)(1)(B). The IEP “must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide,” Schaf-fer, 546 U.S. at 53, 126 S.Ct. 528, and must be reasonably calculated to enable the child to receive “meaningful” education benefit. N.B. v. Hellgate Elementary Sch. Dist. ex rel. Bd. of Dirs., Missoula Cnty., Mont., 541 F.3d 1202, 1212-13 (9th Cir.2008); see U.S.C. § 1414(d)(1)(A).
A school district “must comply both procedurally and substantively with the IDEA.” M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th Cir.2005). The cooperative process between parents and schools is one such important procedural safeguard to which schools must adhere in developing an IEP. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); see also Ojai, 4 F.3d at 1469; Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 882 (9th Cir.2001). Not all violations of IDEA procedures result in a denial of a FAPE to a student. R.B., ex. rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir.2007). Thus, in considering whether a school district has denied a student a FAPE, courts must undertake a two-part inquiry: first “determine whether the school district ‘complied with the procedures set forth in the Act,’ ” and second, “determine whether ‘the individualized educational program developed through the Act’s procedures [was] reasonably calculated to enable the child to receive educational benefits.’” M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 852 (9th Cir.2014), as amended (Oct. 1, 2014) (quoting Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034). “However, the court need not reach the question of substantive compliance if the court finds procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents’ opportunity to participate in the IEP formulation process, or that caused a deprivation of educational benefits.” N.B., 541 F.3d at 1207 (quotlhg Amanda J., 267 F.3d at 892).
In the event a student’s parents believe that the district is not complying with the IDEA’S procedural or substantive requirements, statutory safeguards entitle the parents to “ ‘an impartial due process hearing’ conducted either by the state or local educational agency.” Ojai 4 F.3d at 1469. After a due process hearing, “any party aggrieved by the findings and decision” of the administrative proceedings may file a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A). The District invoked this right to judicial review after the ALJ ruled adversely to it on two of three issues presented during an
B. Factual Background
K.A. is a twelve year old boy with regressive autism who moved into the District at the beginning of the 2010-11 school year. Since February 2011, K.A. has been eligible for special education as a “student with autistic-like behaviors.” OAH Decision 4, ¶ 1.
(I)Did the District'unilaterally predetermine the Student’s individualized education program (IEP) in an IEP offer dated March 29, 2012, which denied Student a free appropriate public education (FAPE)?
(II) Did the District deny Student a FAPE at an IEP meeting on May 31, 2012, by denying Parents’ request for home-hospital instruction because of Student’s medication?
(III) Did the District deny Student a FAPE for the 2012-13 school year (SY) by not providing him with home-hospital instruction and related services following an August 29, 2012, agreement, that it would do so?
OAH Decision 2.
i. The February 16, 2012 to March 29, 2012 IEP Process
On February 16, 2012, the District convened K.A.’s annual IEP meeting for the 2012-13 school year with Parents, K.A.’s IEP team members, and an employee from Center for Autism and Related Disorders (“CARD”) in attendance.
The team did not finish discussing K.A.’s goals and the Korb report on February 16, 2012. As such, no placement offer was made, and the meeting was adjourned to be reconvened at a later date. OAH Dech sion at 8, ¶ 18. Father requested that the meeting be reconvened before the end of February, but due to a week-long school recess and the planned vacation of Mrs. Broumas, the District could not schedule a follow up meeting before March. Id. at 8, ¶¶ 18, 20.
Dissatisfied with the consideration given to the Korb assessment, and feeling that “the District was not interested in parental input,” Father filed a due process hearing complaint on February 22, 2012.
At the due process hearing underlying the present case, Ms. Porter, K.A.’s speech and language therapist since January 2011, testified that she incorporated some, but not all, of Parents’ proposed goals into her draft goals for the February 16, 2012 IEP meeting. Hr’g Tr. 46, ECF 39. She confirmed that these goals were the same as the ones in the March 29, 2012 IEP offer letter because the parents agreed to them verbally. Id. at 54. The AL J found credible Ms. Porter’s further testimony that she put her recommended service for K.A. into the IEP computer system in March 2012 at the request of Ms. Ota, the program coordinator, and that she had no other contact with anyone else from the District
In a similar vein, Ms. Chandru, K.A.’s occupational therapist, testified that at the February 16, 2012 meeting she added a fine motor skills goal of “being able to cut curved lines of one-fourth inch thickness” to her proposal at Mother’s request. Hr’g Tr. 92, 114. She considered the parents’ input and the Korb report but did not add any gross motor skills goals to the IEP because she determined that K.A. did not need any based on communications with his teacher and her personal observation. Id. at 104, 110, 136, 139. The ALJ found credible Ms. Chandru’s testimony that she was asked by someone at the District whether she agreed with the occupational therapy (OT) service offer to be placed in the March 29, 2012 letter and that she did agree. Id. at 147; OAH Decision at 10, ¶ 25.
Mrs. Broumas drafted K.A.’s other goals for the February 16, 2012 meeting and testified that the meeting was not completed on that date and that the team discussed convening a subsequent IEP meeting. Hr’g Tr. 16, 25. The ALJ found credible her testimony that she did not recall being consulted about the contents of the March 29, 2012 offer. OAH Decision 10, ¶ 25.
Finally, Ms. Ota testified that she considered the parents’ input at the February 16, 2012 meeting and then attempted to arrange a subsequent meeting to complete the IEP process on March 9 or 10. Hr’g Tr. at 124. After receiving the responses from Father requesting that the District cancel further meetings pending the outcome of the due process hearing, Ms. Ota testified that she asked each of the IEP team members for recommendations before making the March 29, 2012 offer. Id. at 150-55. The ALJ did not find credible Ms. Ota’s testimony that the placement offer was collectively created by the IEP team because her testimony was contradicted by that of Ms. Porter, Ms. Chandru, and Mrs. Broumas, and because Ms. Ota provided no email evidence to corroborate her testimony. OAH Decision at 10, ¶ 26.
Based on the foregoing facts and credibility findings, the ALJ found that the District had a duty to convene and complete an IEP team meeting even after Parents indicated that they would not participate. Id. at 11, ¶28. Because the March 29, 2012 offer was “not made through any collaborative effort with the rest of the IEP team,” id. the ALJ found that the District had “predetermined all parts of the IEP that were not discussed at the February 16, 2012, IEP team meeting when it sent Parents the take-it-or-leave-it offer of placement in the March 29, 2012 letter and accompanying IEP documents.” Id. at 29, ¶ 14. The ALJ found that this “procedural violation significantly impeded parental participation in the IEP process to the extent that parental participation was possible given Parents refusal to attend the continuation of the IEP team meeting” and also “denied [K.A.] an educational opportunity by causing Dr. Korb’s report, the goals and the placement offer to - receive insufficient consideration,” thereby denying K.A. a FAPE from March 29, 2012 to May 31, 2012. Id. at 29, ¶ 16; 30, ¶ 18.
ii. The District’s Response to K.A.’s Medical Condition After March 29, 2012
On April 9, 2012 K.A. had a seizure at school, and on April 23, 2012 K.A. suffered another seizure on the school bus ride
The District held another IEP meeting on June 8, 2012, which contained a different offer of placement and services from the May 31, 2012 IEP, including “increased OT services and different goals and objectives.” Id. at 14, ¶ 41. Because the June 8 offer was not before her, the ALJ did not decide the procedural or substantive appropriateness of that IEP, finding it “relevant in this matter only as it relates to the duration of the District’s May 31, 2012 IEP offer, which was superseded by the offer made at the June 8, 2012, IEP team meeting.” Id.. The ALJ did acknowledge that the June 8, 2012 meeting also included consideration of Dr. Eorb’s report, including his recommendations for ABA instruction.
K.A.’s seizures continued through the summer, and on August 27, 2012 Father sent a letter to the District stating his concerns regarding the inadequacy of the District’s placement offer. Father attached a letter from K.A.’s neurologist, Dr. Christopher Lee-Messer, which indicated that K.A. would likely need home instruction for another 2-3 months. Id. at 15, ¶ 44. The District subsequently offered an IEP “amendment” on August 29, 2012 offering “temporary” home-hospital instruction for 90 days from the date of the letter. The offer provided for five hours per week of instruction, speech and language therapy of 60 minutes per week, and 60 minutes of. OT consultation per month. The offered amendment was made without an IEP meeting, and Father signed the offer letter on September 10, 2012. Id. at 15, ¶ 45.
iii. Implementation of K.A.’s August 29, 2012 Home-Hospital Instruction IEP
Once Parents had accepted the District’s August 29, 2012 IEP “amendment,” special education director Jennifer Keicher sent a series of emails to District personnel looking for a teacher who could provide the offered special education services. Interested teachers were directed to contact Parents directly via email. Id. at 16, ¶ 49. It is undisputed that the District had difficulty implementing the IEP amendment, and the District readily admits that it did not deliver a portion of the services offered. Id. at 15, ¶ 47. The evidence developed at the hearing indicates that two special education teachers, Emily Kuglics and Lynn Membreno, contacted Parents but were available only during after-school hours. Id. at 16, ¶¶ 51, 52. Despite attempts on both sides to accommodate each other’s schedules — K.A., at the time, was
Likewise with the offered speech and OT services, the District staff providers, Zack Buffum and Smita Chandra, respectively, had scheduling constraints and other conflicts that impeded their ability to provide regular service to K.A. in his home. Id. at 17-18, ¶¶ 55-61; 21-22, ¶¶ 72-74. The ALJ found the District unreasonable for insisting, that services be provided outside of K.A.’s regular school day and credited Parents with a continual willingness to change K.A.’s schedule, which was admittedly “rather full with therapy,” to accommodate the teachers’ schedules. Id. at 19, ¶ 63. Finally, on November 1, 2012, Ashley Cheechoo, a special education teacher, contacted Parents and was able to agree to a schedule by which she provided the home-hospital teacher services in November and December, and until the winter break. Id. at 19, ¶ 64.
On November 13, 2012, Ms. Keicher wrote to Parents to inform them that the August 29, 2012 home-hospital offer would expire on November 29, 2012 unless Parents provided a new doctor’s note. Parents responded noting the delay in services and that Ms. Cheechoo had agreed to work with K.A. until the winter break. Id. at 19, ¶ 66. Although a doctor’s note was not forthcoming, Ms. Keicher decided to extend services through December in anticipation of a note. However, because Parents had difficulty making an appointment with K.A.’s neurologist, they did not secure a note until February 5, 2013. In the meantime, the District unilaterally discontinued services in January 2013 and resumed services on February 13, 2013 after receiving the new note from Dr. Lee-Mes-ser. All of this was done without convening a new IEP team meeting or making any amendment. Id. at 19-20, ¶ 67.
The District held an annual IEP meeting for K.A. on March 15, 2013 and generated an amendment on March 28, 2013 that Parents subsequently signed on April 3, 2013. The ALJ found that the March 28, 2013 offer constituted a new offer of placement that terminated any claim regarding the implementation of the August 29, 2012 IEP on March 28, 2013. Id. at ¶ 68. The ALJ further found that the District’s claim that the August 29, 2012 IEP was a temporary, automatically terminating offer of home-hospital instruction was inconsistent with the law, which requires an IEP meeting prior to the expiration of services. Id. at 20, ¶ 69; 30, ¶ 19 (citing Cal. Code Regs. tit. 5, § 3051.4(d)). The ALJ further noted the testimony of Katherine Waugh, the school nurse, who stated that a physician release is required before a student may return from home-hospital instruction. Id. at 20, ¶ 69. The ALJ also found that the District failed to comply with state regulations requiring that home-hospital instructors consult with the student’s previous teacher to determine the course work to be covered, as Mrs. Broumas testified that no one contacted her during the 2012-13 school year regarding K.A.’s educational program. Id. at 21, ¶ 71; 30, ¶ 20 (citing Cal. Code Regs, tit. 5, §. 3051.4(d)). Finally, the ALJ found that the District had provided only 12 weeks of teaching instruction and missed 13 weeks, provided less than 3 hours of speech therapy from September 10, 2012 through March 28, 2013, and very limited OT consultation. Id. at 21, ¶¶ 70-72. All
iv. ALJ’s Award of Remedies
Based on her conclusion that the District had denied K.A. a FAPE from March 29, 2012 to May 31, 2012 and from August 29, 2012 to March 28, 2013, the ALJ awarded compensatory education to be delivered during the summer. Specifically, the ALJ ordered the District to contract with Parents’ ABA provider for three hours a day for 167 days. The District was also ordered to provide one hour per day of home instruction from a credentialed special education teacher for 167 days, 68 hours of speech and language therapy, 15 minutes per week of OT consult for 34 weeks, and one hour a week of individual OT in the home for 34 weeks. All services were ordered provided during the summer of each school year until completed. OAH Decision 33-34.
In fashioning this remedy, the ALJ acknowledged that though Parents requested as compensatory remedies reimbursement of their out-of-pocket payments for K.A.’s ABA services from March 29, 2012 to the date of the hearing as well as placement at a non-public school, Father put on very “limited evidence” of these remedies. Id. at 23 ¶¶ 80-81; 32, ¶28. The ALJ noted the difficult question of “how to devise a remedy given [K.A.]’s failure to provide an evidentiary basis to award reimbursement for .the ABA services already provided or future placement with a nonpublic school or agency” but proceeded to create the afore-described remedy based on her review of the testimonial and documentary evidence. Id. at 32, ¶ 28.
C. Procedural Background
On October 17, 2013, the District filed the instant lawsuit appealing the ALJ’s adverse rulings on Issues 1 and 3 and her award of compensatory services. Father counterclaimed with a cross-appeal of the ALJ’s ruling in the District’s favor on Issue 2 along with other claims that are not addressed here. Both sides contest the appropriateness of the ALJ’s remedy.
A proceeding on the merits was unfortunately delayed by Father’s failure to comply with this Court’s order to obtain counsel to represent K.A.’s interests. See Order to Show Cause, ECF 22. On May 29, 2014, the undersigned ordered Father joined as an indispensible party to represent his own interests under the IDEA in-the education of his child and set a briefing schedule for cross-motions for summary judgment. See ECF 31. Father, proceeding pro se, did not seek summary judgment on his own claims but opposed the present Motion for Summary Judgment by the District. See Def.’s Opp., ECF 49. The parties appeared before the Court on September 4, 2014 for a hearing on the motion, and the Court requested supplemental briefing from the District, which was completed on September 15, 2014,
II. LEGAL STANDARD
In any action brought before the district court pursuant to § 1415, the IDEA provides that “the court shall receive the records of the administrative proceedings, shall hear additional evidence at
While the petitioning party bears the burden of proof at the administrative level, Schaffer, 546 U.S. at 57, 126 S.Ct. 528, the party challenging an administrative decision in federal district court has the burden of persuasion on his or her claim, Clyde K. v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396 (9th Cir.1994), superseded by statute on other grounds, as recognized in L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900 (9th Cir.2009). In exercising its power of independent review, the courts should not “substitute their own notions of sound educational policy for those of the school authorities'which they review.” Ojai, 4 F.3d at 1472.
III. DISCUSSION
The District’s motion for summary judgment challenges the ALJ’s adverse rulings on two of the three issues presented in the administrative due process hearing as well as her award of compensatory services.
A. Issue One: The ALJ Erred in Finding that the District Predetermined its March 29, 2012 Offer
The District urges as erroneous the ALJ’s conclusions that the District “unilaterally predetermined” the March 29, 2012 offer and that such predetermination resulted in a denial of FAPE to K.A. Pl.’s Mot. 13. Father’s brief, though ostensibly an opposition to summary judgment, does not address any of the District’s points substantively, instead arguing Father’s belief that “the decision of the administrative due process hearing was not the result of a fair hearing” and taking issue with the unavailability of documents at the due process hearing relating to the June 8, 2012 IEP. See Def.’s Opp. After independent review of the record, the Court agrees that the weight of the evidence does not support a finding of predetermination.
A school district violates the IDEA if it predetermines placement for a student before the IEP is developed or steers the IEP to the predetermined placement. W.G. v. Bd. of Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.1992) (“Target Range ”), superseded by statute on other grounds, as recognized in R.B., 496 F.3d 932. Predetermination is a species of procedural violation because the IDEA “requires that the placement be based on the IEP, and not vice versa.” K.D. ex rel. C.L. v. Dep’t of Educ., Hawaii, 665 F.3d 1110, 1123 (9th Cir.2011). More often than not, if a student is eligible under the IDEA, a procedural violation that causes “some defect” in the student’s IEP is a denial of a FAPE. See R.B., 496 F.3d at 940-41 (collecting cases and drawing distinction between cases involving eligible students and those seeking to establish eligibility). Even given this trend, not all IDEA procedural errors involving eligible students result in a finding of a denial of a FAPE, and some errors “may be held harmless.” M.L., 394 F.3d at 652; see J.L. v. Mercer Island Sch. Dist., 592 F.3d 938 (9th Cir.2009). As discussed above, a court must still consider whether the procedural error led to a substantive violation of the IDEA, or whether the procedural error caused the loss of educational opportunity, seriously infringed the parents’ opportunity to participate in the IEP formulation process, or caused a deprivation of educational benefits. N.B., 541 F.3d at 1207.
As an initial matter, the Court takes judicial notice of the unchallenged determination of ALJ Johnson that the District arrived at and left the February 16, 2012 IEP meeting with an open mind and willingness to discuss (and continue discussing) Parents’ goals and the Korb report. Pl.’s RJN, Exh. C at 23, ¶¶ 19, 21; Fed.R.Civ.P. 201(b). Thus, it is undisputed that the February 16, 2012 IEP draft was not predetermined. The ALJ in the present case was asked to decide whether the March 29, 2012 offer letter, which incorporated the draft goals from the February 16, 2012 meeting, was predetermined because no further IEP team meeting had been convened. A careful analysis of the offer letter, and of the events leading up to the letter indicates that the offer was not predetermined, nor did the District at any time adopt a “take-it-or-leave-it” position on the March 29, 2012 offer letter.
As the District correctly notes — and the ALJ ignored' — the March 29, 2012 offer letter expressly indicated that the District was willing to consider Parents’ input and to reconvene an IEP meeting at their convenience to adjust the offered placement:
*1100 Contrary to your assertions, the District did consider your privately procured assessment (Dr. Korb) at the February 16, 2012 IEP. Moreover, the District members of the IEP team would further consider this assessment and/or any other input to the IEP you would like to provide if you would attend an IEP, as requested by the District.
Be advised that the District stands ready, willing and able to hold an IEP meeting if you agree to attend such a meeting. If you have any questions, regarding this offer, or if you wish to meet in an IEP meeting, please do not hesitate to contact me.
Mar. 29, 2012 IEP Offer, ECF 38-6. Though the March 29, 2012 offer letter was based on an incomplete IEP team meeting, most of the goals had already been discussed on February 16, 2012, and any “predetermination” in the offer letter was only in the most technical sense, given the District’s expressed willingness to reevaluate its proposals with parental input.
The ALJ’s determination that the District’s only choice, when faced with Parents’ refusal to return to a continuation IEP meeting, was to proceed with a meeting with Parents in absentia is an unwarranted extrapolation of the law. OAH Decision 10, ¶ 24; 29, ¶ 15. In cases in which the Ninth Circuit has found predetermination or serious infringement on parental participation, the school district generally developed the entire IEP without any parental input, refused to accommodate the parents’ requests to reschedule, or committed other serious errors in conjunction with the failure to secure parental participation. In Anchorage School District v. M.P., 689 F.3d 1047 (9th Cir.2012) (“Anchorage”), for example, the parents refused to attend an annual IEP meeting and instead provided extensive written commentary on the school’s IEP draft. The school district then chose to revert to a two year-old IEP, rather than continue the IEP process to consider the parents’ input. The Ninth Circuit found this to be a substantive violation of the school district’s obligation to have a revised IEP in place every year. Id. at 1056. Similarly, in Target Range, the school district committed a number of procedural errors— e.g., not including a representative from the private school the student was attending at the time — at the IEP meeting, only one of which was the failure to bring the parents back to the table after they left the meeting in frustration. Target Range, 960 F.2d at 1484-85. Moreover, the present case was not a situation in which the District abjectly failed to accommodate the parents’ scheduling requests, as in Doug C. v. Hawaii Department of Education, 720 F.3d 1038 (9th Cir.2013). See also Shapiro, 317 F.3d at 1078 (school district seriously infringed on parental participation by prioritizing the schedule of district staff members over the parents’ request to reschedule).
Nor is this like the situation in K.D. v. Department of Education, Hawaii, on which the ALJ relies for the proposition that “[i]f a parent refuses to attend or is entirely unresponsive to the agency’s requests to meet, the agency has a duty to move forward with the IEP process.” OAH Decision 28, ¶ 8. In K.D., the plaintiffs mother consistently failed to respond to the school district’s repeated attempts to schedule an IEP meeting, whereupon the district proceeded with the meeting and developed an IEP without her. The court found no denial of FAPE from conducting an IEP meeting without the mother’s participation because the district’s numerous documented efforts to work with the mother to find a mutually agreeable time and place for meeting was sufficient to satisfy its duty under the IDEA to involve parents in the IEP process. K.D., 665 F.3d at 1125. Nothing in K.D. compels a district to conduct a follow-up IEP
The present situation is most similar to that presented in N.R. ex rel. B.R. v. San Ramon Valley Unified Sch. Dist., No. C 06-1987 MHP, 2007 WL 216328 (N.D.Cal. Jan. 25, 2007), wherein the parties had experienced a similar breakdown in communication resulting in numerous due process complaints and stay puts, all while the school district attempted to satisfy its annual legal obligation to provide an updated IEP and placement for the student. The court found that the school district’s unilateral revision of an IEP after the conclusion of the annual IEP meeting did not deny the student’s parents meaningful participation in the process because they had actively and extensively participated in pri- or meetings concerning the development of the challenged IEP. Id. at *12-16. The court also noted that the school district made every effort to include the parents in the process and that their exclusion from participation was due to their “conscious decision to stop cooperating with the District beginning in June 2005.” Id. at *12; see also E.P., 2007 WL 1795747, at *8-11 (no serious infringement of parental participation where parents participated in three out of four meetings to develop the challenged IEP and school district attempted in good faith to schedule the final meeting — that parents ultimately did not attend — at a mutually convenient time and place).
Likewise, here, any denial of K.A.’s parents’ ability to participate in the IEP process was caused by Parents’ conscious decision to stop cooperating with the District. Instead of requesting that the March 9, 2012 continuation IEP meeting be rescheduled or providing a reason for which Parents were unable to attend, Father simply asked Ms. Ota to cancel the proposed March 9, 2012 meeting indefinitely “until further notice by us.” See ECF 38-6, 2-3. In fact, the ALJ found that “[t]he evidence established that Parents were unwilling to attend an IEP team meeting until the scheduled [due process] hearing had taken place.” OAH Decision 9, ¶ 21. This finding is well founded in the record, as pursuant to governing regulations, the District documented its attempts to reach Parents and bring them to a mutually agreed upon place and time for meeting. 34 C.F.R. § 300.345(d); Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1078 (9th Cir.2003); E.P. v. San Ramon Valley Unified Sch. Dist., C05-01390 MJJ, 2007 WL 1795747 (N.D.Cal. June 21, 2007). Under such circumstances, holding a meeting without Parents present would have been as likely to draw another due process complaint as simply moving forward on the progress and goals that had already been discussed.
To be sure, K.A.’s parents are not lawyers, and there is no evidence in the record that their mistaken interpretation of the availability of a “stay put” was made in
The facts of this case are unlike the situation in Doug C., where the parent was willing to participate but requested an IEP team meeting be scheduled a few days after the expiration of the extant IEP. Faced with denying parental participation or missing the IEP deadline by a few days, the school district in Doug C. chose the former, and the Ninth Circuit found that the “Department’s decision to prioritize strict deadline compliance over parental participation was clearly not reasonable.” Id. at 1046. Here, although Parents were clearly invested in K.A.’s IEP, they affirmatively refused to return to the IEP meeting during the pendency of their premature due process complaint. Thus, rather than missing the deadline to have a new IEP in place by several days, the District had to choose between proceeding on an outdated IEP for an indefinite period of time — -an absolute denial of FAPE as outlined in Anchorage, 689 F.3d at 1056— or making an offer based on a partially completed IEP meeting where a substantial number of the proposed goals had already been discussed with Parents. The District reasonably determined that offering a placement based on an IEP partially completed with parental input was not so grave a procedural violation as to “seriously infringe” Parents’ opportunity to participate in the process, and was therefore the better option than proceeding with an outdated IEP. The ALJ erred in failing to afford the District “reasonable latitude” in making that determination. Id.
The ALJ’s finding that the procedural error in the March 29, 2012 offer letter denied K.A. educational opportunity because there was a “strong likelihood” that alternative educational possibilities for K.A. “would have been better considered” is similarly without evidentiary support.
At bottom, the preponderance of the evidence indicates that the ALJ’s ruling on Issue'1 was erroneous: the District conducted a meeting with parents on February 16, 2012 at which the IEP team was open to the parents’ input; the Korb report was read, considered, and at least minimally discussed at that meeting; the District attempted to convene a meeting to complete the IEP process, but parents refused to attend and requested that the District cancel the meeting until further notice; and the District, without ability to obtain further parental input, put together on March 29, 2012 an offer based on the draft that had been discussed at the February 16, 2012 meeting with the express reservation that the IEP could be altered if Parents would return to an IEP meeting. This evidence supports the more likely finding that the District’s March 29, 2012 offer letter set forth the agreed elements of the IEP and an offer of services and goals consistent with the professional assessment of the specialist members of the IEP team. In that the offer letter clearly invited continued parental input and that Parents steadfastly refused to return to the IEP meeting, the March 29, 2012 offer letter clearly was not a take it or leave it offer. The evidence therefore simply does not support the ALJ’s finding of predetermination. Based on the foregoing, it was error to conclude that the District’s March 29, 2012 offer was a predetermined placement that denied K.A. a FAPE from March 29, 2012 to May 31, 2012. The District’s Motion for Summary Judgment is accordingly GRANTED on Issue 1, and the ALJ’s ruling is REVERSED.
B. Issue Three: The ALJ Did Not Err in Finding that the District Failed to Materially Implement the August 29, 2012 and Thereby Deprived K.A. of a FAPE
The District challenges the ALJ’s determination that the District materially failed
As a preliminary matter, the District expressly acknowledges that it “did not provide all of the home-teaching services required during the 90-day placement period.” Pl.’s Mot. 19. Furthermore, in rejecting the District’s parental obstruction argument, the ALJ specifically identified the testimony on which she could not rely and found that Parents at no time' offered a “take-it-or-leave-it time period that [K.A.] was available” and that the scheduling constraints were those of the District’s staff. Id. at 17, ¶ 54. The District has not identified any testimony that the ALJ failed to consider and, as such, this Court will not disturb those findings. Thus properly framed, the District’s appeal of the ALJ’s ruling on Issue 3 is not about whether it failed to implement the offered home instruction services, but rather about how much compensatory education is owed.
As to the duration of the offered home-hospital instruction and the corresponding period in which K.A. was denied a FAPE, the District argues that the ALJ should only have considered a 90-day IEP period because the August 29, 2012 offer was self-terminating such that K.A.’s placement reverted to the June 8, 2012 offer at termination. Pl.’s Mot. 18-19. In her decision, the ALJ explained that a “temporary” home-hospital instruction IEP does not comport with California Code of Regulations Title 5, § 3051.4, which states that the IEP team shall “review, and revise, if appropriate the IEP whenever there is a significant change in the pupil’s current medical condition,” and “meet to reconsider the IEP prior to the projected calendar date for the pupil’s return to school.” OAH Decision 30, ¶ 19-20 (citing Cal. .Code Regs. tit. 5, § . 3051.4(c)-(d)). No IEP meeting was held for the August 29, 2012 home-hospital placement offer, and no IEP meeting was held in advance of terminating the home services.
The District’s argument does not address this regulatory requirement, instead pointing to cases from other circuits concluding that an expressly temporary placement is not the “stay put” placement when the “stay put” provisions of 20 U.S.C. § 1415(j) are invoked while the parties are in litigation. Pl.’s Mot. 19 (citing Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 7-8 (1st Cir.1999); Leonard v. McKenzie, 869 F.2d 1558, 1563-64 (D.C.Cir.1989). These cases are not binding authority, do not interpret the state regulation applied in the ALJ’s decision, and are not even applicable where, as here, there was no pending due process complaint at the time such that a “stay put” was in order pursuant to § 1415(j).
As to whether or not the District should get credit for any of the home-hospital instruction actually provided, in her decision, the ALJ again pointed to California Code of Regulations Title 5, § 3051.4, which requires, inter alia, that the teacher providing home instruction consult with the student’s previous school and teacher regarding the student’s coursework. Id. at (f). The ALJ found that the District’s implementation of the August 29, 2012 had failed to comply with this subdivision and accordingly amounted to a “wholesale failure to implement” the home-hospital teaching from September 10, 2012 through March 28, 2013. OAH Decision 21, ¶ 71; 31, ¶¶ 23, 27. The District does not challenge the applicability of this regulation, nor the ALJ’s findings that the home-hospital instructors had failed to comply with this regulation.
It cannot be gainsaid, however, the District did provide some home instruction through Ms. Cheechoo, who was not called to testify about her instruction. Id. at 19, ¶64. Furthermore, the requirement to consult with K.A.’s previous teacher does not extend to the provision of speech and OT services, for which the ALJ did not credit the District for services rendered. On balance, given the delayed and inconsistent provision of services, failure to consult with K.A.’s prior teacher, and automatic termination of the home-hospital instruction, the Court does not find fault with the ALJ’s conclusion that the District failed to materially implement the August 29, 2012 offer, thus denying K.A. a FAPE from August 29, 2012 to March 28, 2013. The degree to which the District should be credited for instruction already provided is a factor to consider in fashioning the appropriate compensatory remedy, as discussed below. The District’s Motion for Summary Judgment is accordingly DENIED on Issue 3, and the ALJ’s ruling is AFFIRMED.
C. Remedies: The ALJ Erred in Devising a Remedy With No Eviden-tiary Support
Both parties appeal the remedy ordered by the ALJ. Father contends that the only appropriate remedy is for K.A. to be placed in a private institution of the parents’ choice, with the cost of education and transportation to be reimbursed by the District.
Compensatory education is an equitable remedy that entails a fact-specif
Here, the Court agrees with the District that the ALJ’s award of compensatory education lacks evidentiary support, as even she struggled to develop the appropriate remedy in the face of Father’s failure to provide an evidentiary basis for his requested relief. OAH Decision 32, ¶28. The ALJ appears to have relied upon the 2011 evaluations performed by Dr. Korb and Patricia Strass, as a starting point, and on a March 15, 2013 IEP document with present levels of performance detailed by Ms. Cheechoo as an ending point. Id. at 22-23, ¶¶76-84. Based on that comparison, the ALJ determined that K.A. had regressed and required “intensive” compensatory education for 167 days in order to make “educational progress.” Id. at 24, ¶83. The ALJ ordered further ABA instruction on Dr. Korb’s and Ms. Strass’s recommendations from 2011, ignoring evidence that Parents had obtained intensive ABA intervention throughout the relevant time period and that Dr. Korb’s own report recommended only a six-month trial of ABA in order to see K.A.’s response to that therapy. Korb Report 8, EOF 38-5, 40. Moreover, the ALJ’s focus on K.A.’s status in the March 15, 2013 IEP to demonstrate regression since 2011 ignored other potential causes of regression, such as his physical seizure disorder or his lack of socialization from having been removed from the classroom environment. As such, based on an independent review of the administrative record, the ALJ’s award of essentially day-for-day compensatory education to achieve an undefined level of “educational progress” lacks support in the evidence presented at the due process hearing.
The District’s Motion for Summary Judgment is accordingly GRANTED on this issue, and the ALJ’s award of compensatory education is VACATED.
D. The Issue of Remedies Must be Remanded
Given the paucity of evidence developed at the due process hearing, the Court cannot fashion an appropriate remedy in a vacuum. As the IDEA permits the undersigned to “grant such relief as the court determines is appropriate,” this Court, in its discretion, finds it appropriate to remand the issue of compensatory services to the ALJ for further evidentiary development.
On remand, the Court urges the ALJ to consider exercising her discretion to order a new IEP meeting to develop further evidence to support an appropriate compensatory remedy. See Struble v. Fallbrook Union High Sch. Dist., No. 07CV2328-LAB CAB, 2008 WL 8215426, at *14 (S.D.Cal. Aug. 29, 2008) report and recommendation adopted as modified sub nom. Mary Struble v. Fallbrook Union High Sch. Dist., No. 07CV2328-LAB CAB, 2011 WL 291217 (S.D.Cal. Jan. 27, 2011) (reasoning that “[i]f it is appropriate for a district court to remand a compensatory education award to an IEP team, then there is no reason why an ALJ could not refer a matter back to an IEP team to devise an IEP consistent with the ALJ’s decision” and citing decisions).
Further, in its supplemental brief, the District recommended that compensatory education be assessed based upon K.A.’s present need and requested that the Court set specific parameters for the consideration of remedies on remand. Pl.’s Ltr. 1-2. While the Court does not agree with the District’s requested parameters, the Court agrees that some clarifications are in order.
As this Court has already determined, the ALJ erred in finding a denial of FAPE from March 29, 2012 to May 31, 2012, but is affirmed in finding a denial of FAPE from August 29, 2012 to March 28, 2013. As such, any remedy should be limited to compensating for the loss of educational benefit from August 29, 2012 to March 28, 2013. The compensatory education award should not be focused on day-for-day or hour-for-hour compensation, but rather on K.A.’s present needs and the degree to which those needs can be rectified by the District’s services. In other words, on remand, the ALJ can develop evidence of K.A.’s present needs and consider to what extent those needs were affected by the District’s actual provision of instruction services from August 29, 2012 to March 28, 2013, and to what extent any regression is attributable to the failure of implementation as opposed to other factors such as K.A.’s physical health or his removal from the school active learning environment. Thus, although the District should not be credited hour-for-hour for the instruction it did provide, the assessment of K.A.’s present need and regression during the FAPE denial period should take into consideration any positive effects that the District’s limited services provided, balanced against factors — such as physical considerations and removal from school — over which the District had no control. The compensatory education should thus bring K.A. to the level at which he could have reasonably been expected to be, in light of all circumstances, had the District complied with the August 29, 2012 IEP.
As to Father’s request for a private placement, the Court will not foreclose this option but notes only that it is unclear how prospective placement in a private institution, presumably for the foreseeable future, is an appropriate remedy to compensate for lost education opportunity and benefits from August 29, 2012 to March 28, 2013. Father has not challenged the substantive appropriateness of the August 29, 2012 IEP, only the District’s failure to materially implement it. As such, the Court leaves it to the ALJ’s discretion whether she will take and consider evi
Unfortunately, obstinance and over-litigation can cause the IEP process to break down, and the courts must necessarily intervene. Given that such a breakdown may have occurred here, the ALJ may consider referring the parties to mediation to address their communication problems. See Anchorage, 689 F.3d at 1052. Though the courts stand ready to remedy violations of the IDEA, the hope underlying the Act is that parents and schools — the parties who know a student best and are best able to assess his' educational needs — will be able to eollaboratively develop a placement that provides the student with a FAPE. This Court cannot order the parties to get along, but it may be that cooperation between the key stakeholders will result in a more appropriate plan for K.A. than anything an ALJ or this Court can fashion. If the parties cannot work it out, then a court-ordered remedy is the bitter pill that all sides must swallow.
IV. ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that the District’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The ALJ’s ruling on Issue 1, finding that the March 29, 2012 IEP offer was predetermined and denied K.A. a FAPE, is REVERSED. The ALJ’s ruling on Issue 3, finding that the District materially failed to implement the August 29, 2012 IEP offer and thereby denied K.A. a FAPE from August 29, 2012 to March 28, 2013 is AFFIRMED. The ALJ’s award of compensatory services is VACATED and REMANDED for further consideration consistent with this order.
IT IS SO ORDERED.
. Father did not move for summary judgment on his counterclaims against the District, though this Court set a briefing schedule for cross-motions for summary judgment on May 30, 2014. ECF 31. In view of Father's pro se status, the Court set a bench trial on Father’s counterclaims for December 12, 2014. ECF 56. As such, the present order addresses only the issues on which the District has moved for summary judgment.
. Available as part of the administrative record submitted by the District at ECF 38-4, pp. 55-114. The administrative record ("AR”) page numbers stamped at the top of each page are, for the most part, illegible in the version submitted by the District. As such, the Court's citations will be to the original page numbers, with appropriate cross-references to ECF page numbers.
. The ALJ’s factual findings indicate that the District “had not completed consideration of Dr. Korb’s report” on February 16, 2012 without any further analysis of whether and to what extent the report had already been considered on that date. See, e.g., OAH Decision at 8, ¶ 18; 9, ¶ 23; 10, ¶ 24.
. As noted by the ALJ, the February 22, 2012 due process complaint, OAH case number 2012020850, involved allegations that the District denied K.A. a FAPE by failing to implement a goal from his February 2011 IEP and by failing to consider the Korb report in advance of the February 2012 IEP meeting. The ALJ in that case — ALJ Deidre L. Johnson — denied K.A.’s requests for relief on all issues. OAH Decision at 4, ¶ 3. As discussed below, ALJ Johnson found that the issue of the February 16, 2012 IEP meeting was not ripe for decision because no offer had been made on that date and because the evidence indicated that the District did not come to that meeting with a predetermined offer and that the IEP team arrived with open minds, considered Dr. Korb’s report during the meeting, and were willing to continue to consider it at a continued IEP team meeting. Pl.’s Request for Judicial Notice ("RJN”), Exh. C at 23, ECF 46.
. The following facts pertain to Issue 2, on which the ALJ ruled in the District’s favor, and on which Father cross-appeals. This issue is not substantively addressed in this order, but the relevant facts are provided for context.
. Applied behavioral analysis (“ABA”) is a methodology for behavioral intervention that is frequently employed in special education settings.
. In its supplemental letter brief, the District also requested that the Court deny Father’s appeal on Issue 2 because he failed to file a motion for summary judgment. PL's Ltr. 3. Because Father is proceeding pro se, the Court declines to find that he defaulted on his claims and has set Father’s counterclaims for a limited bench trial consistent with 20 U.S.C. § 1415(i)(2) on December 12, 2014.
. The District asserts, as an initial matter, that the ALJ’s entire conduct and ruling were injected with bias against school districts owing to her 11 years as an advocate representing students in IDEA cases. Pl.’s Mol. 11. It appears that the ALJ disclosed this prior experience at the outset of the due process hearing and afforded the parties an opportunity to object to her presiding over the case. The school district did not object. Hr’g Tr. 6-7. Although the District now contends that this was the ALJ’s first case and that, in hindsight, her questions during the hearing demonstrate that she was biased against the District, Pl.’s Mot. 12, such contentions are not well taken given the District’s failure to object at the outset. The Court recognizes that it can be difficult for a new judge to withdraw from a prior -role as advocate, particularly when faced with a pm se party. However, the administrative record indicates that the ALJ appears to have conducted a thorough and fair hearing, and that her questions were largely directed at eliciting clarifying testimony in view of Father's pro se status.
. While there may, as a practical matter, be benefits to the student from a collaborative IEP process even in the absence of parental participation, the most important stakeholders are the parents. See M.M., 767 F.3d at 853-56 (9th Cir.2014), as amended (Oct. 1, 2014) (parents denied meaningful opportunity to participate when school district did not provide them with test data that all other members of the IEP team had seen). The ALJ identified no persuasive authority requiring the District to hold a continuation IEP meeting after Parents’ unequivocal refusal to attend.
. The ALJ correctly found that Father failed to meet his burden to show that K.A. had been deprived of educational benefit. Id. at 29, ¶ 17.
. Though the ALJ made no findings on this point, the record suggests that Parents may not have been satisfied with anything short of the District's adoption of Dr. Korb's recommendation in its entirety. Of particular concern is ALJ Johnson’s finding that "Father's disdain and lack of respect for District's educational program were evident” in the due process hearing before her. Pl.’s RJN, Exh. C, at 8-9, ¶ 20. The IDEA's encouragement of parental participation does not require the District to bend to every parental demand, only that the District give due consideration to the parents’ requests in developing an IEP' that meets an eligible student’s educational needs. Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1132 (9th Cir.2003) (school district under no obligation to grant parent "veto” over any individual IEP provision), superseded by statute on other grounds, as recognized in C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 575 Fed.Appx. 796, 799 (9th Cir.2014).
. ALJ Johnson rendered her decision on Parents’ due process complaint regarding the February 16, 2012 IEP meeting on July 21, 2012. See Pl.'s RJN Exh. C.
. The Court notes this regulation differs from the truly temporary home hospital instruction contemplated in California Education Code § 48206.3, which applies to students in general education and specifically excludes those special education students that require an individualized education program. Cal. Educ.Code § 48206.3(b)(2).
. Father argued at the September 4, 2014 hearing that the ALJ's compensatory remedy was "torture” for K.A., given his other educational and therapy requirements during the day.
. This Court could, alternatively remand the issue to an IEP team to develop an appropriate plan for compensatory services. Maine School Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 20 (1st Cir.2003); see also Mr. I ex rel. L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1, 26 (1st Cir.2007) (appellate court held it was "sensible” for district court to order the school district to convene an [IEP] meeting to develop an IEP for student with special needs, since [IEP team] could better assess the student’s special needs).