Panicacci v. West Ada School District No. 2

Opinion

----oo0oo---- ROBERT and AMIE PANICACCI, as No. 1:21-cv-00329 WBS legal guardians and parents of G.P., a minor, Plaintiffs, MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY v. JUDGMENT WEST ADA SCHOOL DISTRICT #2, Defendant. ----oo0oo---- Robert and Amie Panicacci (“plaintiffs”), as legal guardians and parents of G.P., initiated this action against West ADA School District #2 (“defendant”) alleging violations of the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 794. (See First Am. Compl. (Docket No. 32).) Before the court are defendant’s motion for summary judgment as to all claims and plaintiffs’ motion for partial summary judgment as to review of the hearing officer’s decision on plaintiff’s IDEA claim.1 (Docket Nos. 41, 43.) I. Background A. Undisputed Facts In September 2020, plaintiffs and their child, G.P., moved from California to Idaho. (Def.’s Statement of Undisputed Facts (“DSUF”) ¶ 9 (Docket No. 41-2).) G.P. had been diagnosed with autism and received special education services at his elementary school in California pursuant to an Individualized Education Program (“IEP”).2 (Id. ¶ 2.) G.P.’s most recent evaluation for an IEP occurred in August 2017 and thus his IDEA mandated triennial assessments were due.3 (DSUF ¶ 8.) The triennial assessments were not completed

1 Both sides also filed motions opposing the other party’s expert report. Plaintiffs moved to exclude the report of defendant’s expert, Andrea Cox (Docket No. 46), and defendant moved to strike the report of plaintiffs’ expert, Alison Bickelman (Docket No. 63). For the reasons discussed at oral argument, the court will consider the arguments advanced in these motions as going to the weight of the evidence, not admissibility, and will accordingly deny both motions. Plaintiffs also submitted a motion for leave requesting that the court accept various materials which were filed late. (Docket No. 55.) Because the delay did not result in any prejudice, the court will grant plaintiffs’ motion and accept the late filings.

2 An “IEP” is “a written statement for each child with a disability that is developed, reviewed, and revised,” which includes things such as: “a statement of the child’s present levels of academic achievement and functional performance”; “a statement of measurable annual goals, including academic and functional goals”; and “a description of how the child’s progress toward meeting the annual goals . . . will be measured.” 20 U.S.C. § 1414 (d)(1)(A).

3 Under the IDEA, a child with a disability must be reevaluated “at least once every 3 years, unless the parent and the local education agency agree that a reevaluation is unnecessary.” 20 U.S.C. § 1414(a)(2)(B)(ii). by the California school because of the COVID-19 pandemic school closures. (See Hansen Decl., Ex. A (“Hr’g Officer Decision”) at 6 (Docket No. 41-4).) Further, G.P.’s IEP had expired in May 2020 (the “Expired IEP”). (Id. at 4.) The California school prepared a new IEP dated August 20, 2020 (the “Transfer IEP”) to inform defendant what services G.P. had been provided. (DSUF ¶ 3.) The Transfer IEP was set to expire on October 13, 2020. (Id.) The Transfer IEP did not contain any specific goals or objectives nor any prescribed methodologies to be used for G.P.’s behavior services. (DSUF ¶¶ 6-7.) Neither the Transfer IEP nor the Expired IEP contained specifics about who should provide, or any qualifications needed in order to provide, G.P.’s behavior services. (DSUF ¶ 7; Hr’g Officer Decision at 5.) On September 28, 2020, the parties met to discuss G.P.’s special education needs. (DSUF ¶ 10.) Shortly thereafter, G.P. began the 2020-2021 school year at defendant’s elementary school. (Id. ¶ 11.) Defendant used a paraprofessional to provide G.P. special education services. (Id. ¶ 12.) On October 13, 2020 (the day the Transfer IEP was set to expire), the parties held G.P.’s first IEP meeting since plaintiffs relocated to Idaho. (Id. ¶ 14.) At this meeting, defendant indicated that the Transfer IEP was insufficient because it did not contain any goals or objectives.4 (Id.)

4 An IEP should contain academic and functional goals as well as describe how the child is progressing toward meeting these goals. See 20 U.S.C. § 1414(d)(1)(A). Further, the parties discussed whether defendant’s use of a paraprofessional was appropriate. (Id. ¶ 16.) Instead of a paraprofessional, G.P.’s school in California had used an Applied Behavior Analysis (“ABA”) therapist. (Id.) In addition, the parties considered various goals for G.P. as well as reviewed information obtained from G.P.’s previous school and informal assessments collected by G.P.’s current teachers. (Id. ¶ 15.) The parties used this information to develop an interim IEP (the “Interim IEP”). (Id.) The Interim IEP included goals and objectives in areas of communications, mathematics, reading, writing, and social- emotional needs. (Id. ¶ 17.) Defendant then began providing G.P. with special education services consistent with the Interim IEP. (Id.) Two weeks later, the parties held another IEP meeting. (Id. ¶ 18.) At this meeting, defendant indicated that various assessments were needed. (Id.) On November 11, 2020, the parties held yet another meeting during which plaintiffs agreed to some of the assessments requested by defendant. (Id. ¶ 19.) However, plaintiffs would not agree to any behavior assessments. (Id.) After the November meeting, plaintiffs were sent a consent form so defendant could proceed with their requested assessments. (Id. ¶ 20.) Plaintiffs signed the consent form, but specifically excluded the requested behavior assessment and added a note explicitly denying consent for any behavior assessment. (Id.) To date, plaintiffs have not authorized defendant to conduct any behavior assessments. (Id. ¶ 21.) While attending defendant’s school, G.P. has been accompanied by a paraprofessional for most, if not all, of his school day. (Id. ¶ 22.) The paraprofessional provides one-on- one special education services in G.P.’s general education classroom, during lunch, and at recess. (Id. ¶ 27.) B. Procedural History On March 2, 2021, plaintiffs submitted a Due Process Complaint to the Idaho Department of Education. (Hr’g Officer Decision at 1.) A due process hearing was held on May 26-27, 2021, and the hearing officer found that defendant did not deny G.P a “free appropriate public education” (a “FAPE”) under the IDEA. (Id., at 12-14.) Plaintiffs then filed this action seeking review of the hearing officer’s decision. (See Docket No. 1.) On May 5, 2022, this court granted plaintiffs’ motion to amend to add claims under the ADA and RA. (See Docket No. 30.) II. Legal Standard “Summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact.” Acosta v. City Nat’l Corp., 922 F.3d 880, 885 (9th Cir. 2019). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable trier of fact to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Alternatively, the movant can demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. The burden then shifts to the non-moving party to set forth specific facts to show that there is a genuine issue for trial. See id. at 324. Any inferences drawn from the underlying facts must, however, be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). III. IDEA (Claim 1) A. Statutory Framework The IDEA “was designed to reverse a history of educational neglect for disabled children.” Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1109 (9th Cir. 2016) (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005)). It seeks “‘to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs’ and ‘to ensure that the rights of children with disabilities and parents of such children are protected.’” Tamalpais Union High Sch. Dist. v. D.W., 271 F. Supp. 3d 1152, 1154 (N.D. Cal. 2017) (quoting 20 U.S.C. §§ 1400(d)(1)(A)-(B)). These goals are achieved through the development of an IEP.5 See Ojai Unified Sch. Dist. v. Jackson, 5 There are multiple requirements of an IEP and a failure to include such requirements constitutes a substantive violation 4 F.3d 1467, 1469 (9th Cir. 1993) (citing 20 U.S.C § 1401(a)(18)(D)). “When a party objects to the adequacy of the education provided . . . IDEA provides procedural recourse . . . .” Timothy O., 822 F.3d at 1155. “During a due process hearing, the hearing officer will decide whether the school district committed a substantive or procedural violation.” Id. (citing 20 U.S.C. § 1415(f)(3)(E)). “A substantive violation lies if a child was denied a FAPE.” Id. (citing 20 U.S.C. § 1415(f)(3)(E)(i)). For procedural violations, however, a hearing officer may find a child was denied a FAPE “only if the procedural violation ‘(I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.’” Id. at 1155-56 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). B. Standard of Review “[J]udicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts are generally confined to the administrative record and held to a of the IDEA. See id. at 1469. The IDEA also contains procedural safeguards. See id. For example, “the IDEA requires that parents be afforded a significant and collaborative role in the development of a child’s IEP” and “have sufficient information to understand and participate meaningfully in all aspects of that discussion.” Timothy O., 822 F.3d at 1111-12 (citing Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007); M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 851 (9th Cir. 2014)). highly deferential standard of review.”6 Ojai, 4 F.3d at 1471 (citation omitted). When reviewing a hearing officer’s determination in an IDEA case, the district court should “read the administrative record, consider new evidence, and make an independent judgement based on the preponderance of evidence and giving due weight to the hearing officer’s determinations.” Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Waternberg, 59 F.3d 884, 892 (9th Cir. 1995). Further, “the IDEA does not empower courts to ‘substitute their own notions of sound educational policy for those of the school authorities which they review.’” Ojai, 4 F.3d at 1472 (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (additional citations and quotations omitted). C. Discussion The parties’ cross-motions for summary judgment on plaintiffs’ IDEA claim focus on two issues: (1) whether defendant denied G.P a FAPE by using a paraprofessional instead of an ABA therapist to provide behavioral services; and (2) whether defendant denied plaintiffs the right to an Independent Educational Evaluation (“IEE”) at public expense under 34 C.F.R. § 300.502(b)(1). Because for the following reasons the court finds disputed questions of material fact on each of those issues, both motions must be denied. 1. Use of a Paraprofessional

6 Some courts have explained that a motion for summary judgment which seeks review of a hearing officer’s decision is “more accurately described as a judgment on the record.” G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1267 (11th Cir. 2012) (citation omitted). Under the IDEA, “a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another State” must be provided “services comparable” until a new IEP is developed. See 20 U.S.C. § 1414(d)(2)(C)(i)(II). Although the statute does not define “comparable” services, “comparable” is typically defined as “similar” or “equivalent.” See Assistance to States for the Educ. of Child. With Disabilities & Presch. Grants for Child. With Disabilities, 71 Fed. Reg. 46540, 46681 (Aug. 14, 2006) (“[T]he Department interprets ‘comparable’ to have the plain meaning of the word, which is ‘similar’ or ‘equivalent.’”). Thus, “when used with respect to a child who transfers to a new public agency . . . ‘comparable’ services means services that are ‘similar’ or ‘equivalent’ to those that were described in the child’s IEP from the previous public agency, as determined by the child’s newly- designated IEP Team in the new public agency.” Id. To determine whether services are “similar” or “equivalent,” courts compare the services and objectives as articulated on a student’s IEP as well as within the school context as a whole. See Sterling A. ex rel. Andrews v. Washoe Cnty. Sch. Dist., No. 3:07-cv-245, 2008 WL 4865570, at *5-6 (D. Nev. Nov. 10, 2008) (finding services “comparable” where the only difference was the location of the services being offered); West Orange Bd. of Educ. v. B.R. o/b/o B.R., No. 21-cv-13849, 2022 WL 2903341, at *5 (D. N.J. July 22, 2022) (finding services were not “comparable” where there was “significant differences in class size, school size, student-teacher ratio, and the proportion of classified students per class”). Here, the only description of “Behavior Intervention Services” in the Transfer IEP are the general statements relating to the duration and frequency of services. (Hr’g Officer Decision at 11.) The Transfer IEP stated that “Behavior Intervention Services” were to be provided by a “Nonpublic agency (NPA) under contract with SELPA7 or district” for 1950 minutes per week. (Id. at 5.) The Transfer IEP neither specified that behavior services must be provided by an ABA therapist nor provided any objectives that would have indicated that services provided by a paraprofessional would not meet the requirements of the IEP. (DSUF ¶¶ 6-7.) The Interim IEP’s description of behavior services is nearly identical. It stated that “Behavior Skill Services” are to be provided by a “special education teacher” for 1950 minutes per week. (Hr’g Officer Decision at 7.) Like the Transfer IEP, the Interim IEP did not describe or prescribe any methodologies to be used with the provision of these behavior services, including whether the services were to be provided by an ABA therapist or paraprofessional. (Id. at 5.) Although the use of an ABA therapist is not specified in G.P.’s IEPs, plaintiffs argue that defendant’s use of a paraprofessional to provide G.P. with behavior services under the Interim IEP is not “comparable” to his California school’s use of

7 A “SELPA” is an acronym for a Special Education Local Plan Area, which is a group of school districts, charter schools, and County Offices of Education which provide special education services to students with disabilities. See A Brief History of Special Education, SELPA Adm’rs of Cal., https://selpa.info/info/legal. ABA therapists. (Pls.’s Opp’n at 10-13 (Docket No. 53).) At the administrative hearing, testimony showed that ABA therapists differ from paraprofessionals because ABA therapists receive specific developmental-disorder training, are subject to direct oversight, and have more experience working with kids with autism. (Pls.’ Reply at 9 (Docket No. 60); see generally Hearing Transcript (Docket No. 41-5).) Further, plaintiffs’ expert witness described ABA therapists as “the gold standard for clients with autism” and having “more of a specialized experience and education with working with kids with autism.” (Hr’g Officer Decision at 13.) The hearing officer concluded that plaintiffs had not shown that “the behavior services [G.P.] received from paraprofessionals would be any different than the services that [G.P]. would receive from an ABA therapist.” (Id.) The hearing officer’s decision focused on the fact that the IEPs both provided for 1950 minutes per week of behavior services and did not specify that behavior services be provided by an ABA therapist. However, that ABA therapists and paraprofessionals receive different training and are subject to differing levels of oversight does not mean they may not provide “comparable” services. The most important question is what behavioral services the treating therapists in California were in fact providing to G.P. and whether the paraprofessionals in Idaho could offer comparable services. The record before the hearing officer and this court is insufficient to allow the court to answer that question. From the existing record, the court could draw either the inference that the hearing officer did or the contrary inference depending upon the court’s own assessment of whether the Idaho paraprofessionals are able to offer treatment sufficiently similar or equivalent to what the ABA therapists were able to provide and were actually providing in California. Summary judgment must therefore be denied on plaintiffs’ IDEA claim. 2. Independent Educational Evaluation (“IEE”)8 Federal regulations provide that parents of a child with a disability have the right to an IEE “at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 C.F.R. § 300.502(b)(1). Defendant takes the position that it had not yet made its evaluation because plaintiffs refused to allow defendant to conduct its own behavioral assessment. Plaintiffs’ position is apparently that they did not have to consent to defendant’s assessment, and that defendant was required to make its evaluation without the benefit of that assessment. It is unclear why plaintiffs would not consent to the behavioral assessment requested by defendant. The court can find no evidence in the record that plaintiffs had anything to lose by giving their consent. At the administrative hearing, plaintiffs stated that they would not allow defendant to conduct a behavior assessment because they “did not trust” that defendant “would be unbiased.” (Hr’g Officer Decision at 8.) Plaintiffs proffer no 8 An “IEE” is “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” 34 C.F.R. § 300.502(b)(1). coherent reason why they could not have consented to defendant’s assessment before concluding that it would be biased. “The right to a publicly funded independent educational evaluation does not obtain until there is a reevaluation with which the parents disagree.” G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1266 (11th Cir. 2012); V.M. v. North Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 118 (N.D. N.Y. 2013) (“Plaintiff’s repeated failure to provide [d]efendant with consent to perform updated evaluations precludes her from asserting that [student] was denied a FAPE . . . .”); D.Z. v. Bethlehem Area Sch. Dist., 2 A.3d 712, 729 (Pa. Commw. Ct. 2010) (“The statutory scheme makes clear that it is only after the [s]chool [d]istrict is granted permission to reevaluate and then completes that reevaluation that [plaintiff’s] parental right to request an IEE . . . vests.”). Plaintiffs argue to this court that defendant’s review of G.P.’s school record, including his prior IEPs, to create the Interim IEP constituted an evaluation with which they disagree and therefore their right to an IEE has vested. (Pls.’ Mot. at 3.) The regulations upon which plaintiffs rely prescribe what a public agency must do when conducting an evaluation. See 34 C.F.R. § 300.15 (“Evaluation means procedures used in accordance with §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.”); 34 C.F.R. § 300.304(b)(1) (“In conducting the evaluation, the public agency must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child”). These regulations do not prescribe exactly what type of evaluation is sufficient to trigger a parent’s right to an IEE. Further, at oral argument, the parties were unable to direct the court to any regulation or caselaw purporting to show the type of evaluation a school district must conduct before a parent has the right to an IEE. It is reasonable to read the record to suggest that defendant wanted to provide plaintiffs with an IEE but needed to gather more information by first conducting its behavior assessment of G.P. It is just as reasonable to read the record to suggest that plaintiffs presumed that defendant’s review of G.P.’s record, which was apparently sufficient to create the Interim IEP, constituted an evaluation and therefore plaintiffs’ right to an IEE had vested. Because reasonableness is characteristically a question of fact, the court cannot make that determination on summary judgment. IV. ADA and RA (Claims 2 and 3) Defendant also seeks summary judgment on plaintiffs’ claims under the ADA and RA.9 (See generally Def.’s Mot.) Because plaintiffs’ ADA and RA claims do not differ in any material sense, the court will address the claims together. See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) (“There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act . . . Thus, courts have applied the same analysis to claims brought under both statutes.”); see also A.G. 9 Plaintiffs did not move for summary judgment on their ADA and RA claims. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1203 (9th Cir. 2016) (analyzing ADA and RA claim together); Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135-36 (9th Cir. 2001) (same). “[T]o bring a suit under the ADA and Section 504 [of the RA] requires the same elements: (1) the child is a qualified individual with a disability; (2) she was denied a reasonable accommodation that she needs to enjoy meaningful access to the benefits of public services; and (3) the program providing the benefit receives federal financial assistance.” McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 912 (9th Cir. 2020) (citations omitted). Here, the first and third factors are undisputed and easily satisfied. Thus, these claims turn on whether G.P. was denied a reasonable accommodation. “To succeed on a failure-to-accommodate claim . . . a plaintiff must show that a public entity failed to make reasonable modifications that would accommodate plaintiff’s disability without fundamentally altering the nature of [the] program or activity, and that the accommodation would have enabled the plaintiff to meet the program’s essential eligibility requirements.” Selene v. Legislature of Idaho, 514 F. Supp. 3d 1243, 1256 (D. Idaho 2021). “Reasonableness ‘depends on the individual circumstances of each case, and requires a fact- specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow him to [enjoy meaningful access to the program.]’” Mark H. v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010) (quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)). Here, plaintiffs alleged that defendant failed to provide G.P. with accommodations that would allow him to access defendant’s “school, its activities[,] and its programs.” (First Am. Compl. ¶¶ 40, 50.) Plaintiffs make clear in their Opposition that the accommodation at issue is defendant’s use of a paraprofessional. (See Pls.’ Opp’n at 15-16.) As explained above, whether defendants’ use of a paraprofessional is “comparable” to an ABA therapist is a disputed question of fact. For similar reasons, whether defendants’ use of a paraprofessional, in lieu of an ABA therapist, was reasonable under the ADA and RA is a disputed question of fact. As part of their ADA and RA claims, plaintiffs allege that defendant acted “intentionally, with willful misconduct, or with deliberate indifference . . . .” (See First Am. Compl. ¶¶ 46, 54.) Under the ADA and RA, “[a] public entity can be liable for damages . . . if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.” McIntyre, 976 F.3d at 912 (quotation and citation omitted). A defendant “acted with deliberate indifference if it (1) had knowledge that a harm to a federally protected right is substantially likely, and (2) failed to act upon that likelihood.” Mark H., 620 F.3d at 1099 (quotation and citation omitted). Here, it is undisputed that defendant was aware of G.P.’s autism diagnosis and need for behavioral services. However, whether defendant had any knowledge that providing G.P. with paraprofessionals instead of ABA therapists would deny him access his education, and therefore acted with deliberate indifference towards G.P.’s needs for behavioral services, is a disputed question of fact. Accordingly, defendant’s motion for summary judgment on plaintiffs’ ADA and RA claims will be denied. IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Docket No. 41) and plaintiffs’ motion for partial summary judgment (Docket No. 43) be, and the same hereby are, DENIED. Dated: August 17, 2023 □□ tteom. Ad. bt—~ WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 17