Panicacci v. West Ada School District No. 2

• Court: District Court, D. Idaho
• Decided: May 28, 2025
• Docket: 1:21-cv-00329
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 ROBERT and AMIE PANICACCI, as No. 1:21-cv-00329 WBS legal guardians and parent of 13 G.P., a minor, 14 Plaintiffs, MEMORANDUM OF DECISION, FINDINGS OF FACT, AND 15 v. CONCLUSIONS OF LAW 16 WEST ADA SCHOOL DISTRICT #2, 17 Defendant. 18 19 ----oo0oo---- 20 Robert and Amie Panicacci (“plaintiffs”), as legal 21 guardians and parents of G.P., initiated this action against West 22 Ada School District #2 (“defendant”) alleging violations of the 23 Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §§ 1400, et 24 seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 25 12101, et seq.; and the Rehabilitation Act, 29 U.S.C. § 794. (See 26 First Am. Compl. (Docket No. 32).) The court conducted a jury 27 trial on the ADA and Rehabilitation Act claims, which resulted in 28 a jury verdict for defendant on both claims. 1 It was stipulated that the court may consider the 2 evidence at that trial, along with any additional evidence the 3 parties may submit, in ruling upon plaintiffs’ IDEA claim. The 4 court having considered such evidence, along with the parties’ 5 written submissions and oral argument, now rules on plaintiffs’ 6 IDEA claim as follows. This memorandum constitutes the court’s 7 findings of fact and conclusions of law pursuant to Federal Rule 8 of Civil Procedure 52(a). 9 I. Factual and Procedural History 10 In September 2020, plaintiffs and their child, G.P., 11 moved from California to Idaho. G.P. had been diagnosed with 12 autism and received special education services at his elementary 13 school in the Newhall School District in California (“Newhall”) 14 pursuant to an Individualized Education Plan (“IEP”). 15 G.P.’s most recent evaluation for an IEP occurred in 16 August 2017 and thus his IDEA-mandated triennial assessments were 17 due in 2020. The triennial assessments were not completed by 18 Newhall because of the COVID-19 pandemic school closures. 19 Further, G.P.’s 2019 IEP (the “2019 IEP”) had expired in May 20 2020. Newhall prepared a new “transfer” IEP dated August 20, 21 2020 (the “Transfer IEP”) to inform defendant what services G.P. 22 had been provided. The Transfer IEP was set to expire on October 23 13, 2020. The Transfer IEP did not contain any specific goals or 24 objectives nor any prescribed methodologies to be used for G.P.’s 25 behavior services. The Transfer IEP also did not contain any 26 specifics about who should provide, or any qualifications needed 27 in order to provide, G.P.’s behavior services. 28 On September 29, 2020, the parties met to discuss 1 G.P.’s special education needs. Shortly thereafter, G.P. began 2 the 2020-2021 school year at defendant’s elementary school. 3 Defendant used a paraprofessional to provide G.P. special 4 education services in the classroom. 5 On October 13, 2020 (the day the Transfer IEP was set 6 to expire), the parties held G.P.’s first IEP meeting since 7 plaintiffs relocated to Idaho. At this meeting, defendant 8 indicated that the Transfer IEP was insufficient because it did 9 not contain any goals or objectives. Further, the parties 10 discussed whether defendant’s use of a paraprofessional was 11 appropriate. Instead of a paraprofessional, G.P.’s school in 12 California had used a Board Certified Behavior Analyst (“BCBA”) 13 and a Registered Behavior Technician (“RBT”) who were certified 14 in the use of Applied Behavior Analysis (“ABA”). 15 In addition, the parties considered various goals for 16 G.P. and reviewed information obtained from G.P.’s previous 17 school and informal assessments collected by G.P.’s current 18 teachers. The parties used this information to develop an 19 interim IEP (the “Interim IEP”). The Interim IEP included goals 20 and objectives in areas of communications, mathematics, reading, 21 writing, and social-emotional needs. The Interim IEP also had an 22 attachment titled “Behavior Intervention Planning” which referred 23 to the Newhall 2019 IEP multiple times, stating that “on 8/20/20 24 CA decided to continue this plan until they could reconvene in 25 the fall due to COVID.” However, neither the 2019 IEP nor the 26 attached 2019 Behavior Intervention Plan stated that services 27 were to be provided by a BCBA or RBT. 28 Defendant then began providing G.P. with special 1 education services consistent with the Interim IEP. 2 Specifically, while attending defendant’s school, G.P. was 3 accompanied by a paraprofessional who provided one-on-one special 4 education services in G.P.’s general education classroom, during 5 lunch, and at recess. G.P. also began to receive other services, 6 including services from a special education teacher and a speech 7 pathologist. 8 On October 28, 2020, the parties held another IEP 9 meeting, at which defendant indicated that various assessments 10 were needed. On November 11, 2020, the parties held another IEP 11 meeting during which plaintiffs agreed to some of the assessments 12 requested by defendant. However, plaintiffs would not agree to 13 any behavior assessments. After the November 11 meeting, 14 plaintiffs were sent a consent form so defendant could proceed 15 with their requested assessments. Plaintiffs signed the consent 16 form but added a note explicitly denying consent for any behavior 17 assessment. Plaintiffs explained that their consent to any 18 behavioral assessment was conditioned on the assessment being 19 performed by an independent third party. Defendant did not agree 20 to a third-party assessment, noting that it had not yet conducted 21 its own assessment. 22 On March 2, 2021, plaintiffs submitted a Due Process 23 Complaint to the Idaho Department of Education. The complaint 24 alleged that defendant failed to provide G.P. with educational 25 benefits afforded to students with disabilities under the IDEA. 26 A due process hearing was held on May 26-27, 2021. The 27 hearing officer found that defendant’s use of a paraprofessional, 28 as opposed to an ABA therapist, to provide G.P. with his behavior 1 services did not deny him a “free appropriate public education” 2 (a “FAPE”) under the IDEA because: (1) methodology decisions are 3 left to school districts and therefore deciding to use a 4 paraprofessional was within defendant’s discretion; and (2) the 5 evidence presented at the hearing showed that the use of a 6 paraprofessional is comparable to the use of an ABA therapist. 7 (Hr’g Officer Dec. at 12-13.) Further, the hearing officer 8 concluded that, because plaintiffs refused to consent to behavior 9 assessments, they were precluded from claiming defendant had not 10 provided behavior related services. (Id. at 14.) 11 Since the due process hearing, G.P. has continued to 12 receive special education services, including one-on-one 13 assistance from a paraprofessional, services from a special 14 education teacher, and speech therapy. 15 The parties eventually agreed to a behavioral 16 assessment which was performed by Yrenka Lolli-Sunderlin on 17 December 20, 2023. Ms. Sunderlin reported, among other things, 18 concern with G.P. receiving excessive “prompts” from the 19 paraprofessional working with G.P. in the classroom, and she 20 provided recommendations in order to reduce prompt dependence. 21 Plaintiffs’ expert Allison Bickelman, a BCBA who had 22 previously worked with G.P., and defendant’s employee Andrea Cox, 23 also a BCBA, observed G.P. on October 7-8, 2024. Based on these 24 observations, the Sunderlin report, and concerns with G.P.’s 25 behavior outside the classroom, plaintiffs’ expert and plaintiffs 26 continue to assert that G.P. requires the assistance of an RBT 27 overseen by a BCBA. In contrast, defendant’s expert opined that 28 G.P. does not require an RBT directly supervised by a BCBA, and 1 she and district staff testified at trial that G.P., while not at 2 the same level of his non-disabled peers, has made significant 3 progress over the years and especially during the last school 4 year. 5 II. Analysis 6 “[J]udicial review in IDEA cases differs substantially 7 from judicial review of other agency actions, in which courts are 8 generally confined to the administrative record and held to a 9 highly deferential standard of review.” Ojai Unified Sch. Dist. 10 v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993) (citation omitted). 11 When reviewing a hearing officer’s determination in an IDEA case, 12 the district court should “read the administrative record, 13 consider new evidence, and make an independent judgment based on 14 the preponderance of evidence and giving due weight to the 15 hearing officer’s determinations.” Capistrano Unified Sch. Dist. 16 v. Wartenberg ex rel. Waternberg, 59 F.3d 884, 892 (9th Cir. 17 1995). Further, “the IDEA does not empower courts to ‘substitute 18 their own notions of sound educational policy for those of the 19 school authorities which they review.’” Ojai, 4 F.3d at 1472 20 (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 21 (9th Cir. 1987)) (additional citations and quotations omitted). 22 Because the court has heard the testimony of the 23 numerous witnesses and was able to examine all of the parties’ 24 exhibits and receive additional exhibits after trial, the court 25 makes its own findings and determinations independent of the 26 factual findings and legal determinations expressed by the 27 hearing officer. 28 Plaintiffs challenge the hearing officer’s 1 determinations that (1) defendant did not deny G.P. a FAPE by 2 using a paraprofessional to provide behavior services because 3 such services are “comparable” to those provided by an ABA 4 therapist; and (2) defendant’s failure to provide an independent 5 educational evaluation did not result in the denial of FAPE 6 because plaintiffs had refused to provide consent to behavior 7 analysis and assessments.1 (See Hr’g Officer Decision at 12-14.) 8 The court will address those determinations below. 9 A. Use of Paraprofessionals 10 Under the IDEA, “a child with a disability who 11 transfers school districts within the same academic year, who 12 enrolls in a new school, and who had an IEP that was in effect in 13 another State” must be provided “services comparable” to those 14 provided in the original district until a new IEP is developed. 15 See 20 U.S.C. § 1414(d)(2)(C)(i)(II). 16 The IDEA does not define the term “comparable,” and 17 neither the Department of Education nor the courts have given 18 much guidance regarding its meaning under the IDEA. In normal 19 usage, “comparable” could be defined as capable of being 20 compared. When two or more things have enough features in 21 common, it generally makes sense to compare them. This could 22 apply to anything from restaurants or automobiles to methods of 23 teaching autistic children. When two or more things do not have 24 enough features in common, they are generally understood not to

25 1 The court notes that the hearing officer did not make an explicit finding about whether plaintiffs were denied an IEE. 26 Rather, the hearing office made a related finding that plaintiffs could not assert a claim alleging that G.P. was denied a FAPE in 27 connection to the defendant’s provision of behavior services because plaintiffs had not provided consent to behavior 28 assessments. (See Hr’g Officer Decision at 14.) 1 be comparable. 2 The Department of Education has taken a somewhat 3 different approach in attempting to define what is comparable. It 4 has interpreted the term “to have the plain meaning of the word, 5 which is ‘similar’ or ‘equivalent.’” See Assistance to States 6 for the Educ. of Child. With Disabilities & Presch. Grants for 7 Child. With Disabilities, 71 Fed. Reg. 46540, 46681 (Aug. 14, 8 2006). Thus, “when used with respect to a child who transfers to 9 a new public agency . . . ‘comparable’ services means services 10 that are ‘similar’ or ‘equivalent’ to those that were described 11 in the child’s IEP from the previous public agency, as determined 12 by the child’s newly-designated IEP Team in the new public 13 agency.” Id. 14 In the court’s view, “similar” and “equivalent” have 15 slightly different meanings. Two things are similar when they 16 have a sufficient number of relevant features in common. Two 17 things are equivalent if they possess equal value -- in other 18 words, equal usefulness for a particular purpose, even if 19 achieved by different means. One thing is clear, however: in 20 order to be “similar” or “equivalent,” two things need not be 21 identical or the same. 22 Given the ambiguity of the term comparable, the court 23 looks holistically at the services in the prior school district 24 and the current school. This approach accords with that taken by 25 courts to compare the services and objectives as articulated in a 26 student’s IEP as well as within the school context as a whole. 27 See Sterling A. ex rel. Andrews v. Washoe Cnty. Sch. Dist., No. 28 3:07-cv-245-LRH-RJJ, 2008 WL 4865570, at *5-6 (D. Nev. Nov. 10, 1 2008) (finding services “comparable” where the only difference 2 was the location of the services being offered); W. Orange Bd. of 3 Educ. v. B.R. o/b/o B.R., No. 21-cv-13849, 2022 WL 2903341, at *5 4 (D.N.J. July 22, 2022) (finding services were not “comparable” 5 where there were “significant differences in class size, school 6 size, student-teacher ratio, and the proportion of classified 7 students per class”). 8 Here, plaintiffs contend that defendant’s use of a 9 paraprofessional to provide G.P. with behavior services under the 10 Interim IEP is not “comparable” to his California school’s use of 11 RBTs and BCBAs. However, the only description of “Behavior 12 Intervention Services” in the Transfer IEP are the general 13 statements relating to the duration and frequency of services -- 14 specifically, that (1) G.P. would receive services for a total of 15 1950 minutes per week in the regular classroom “plus monthly 16 clinic meeting attendance (1 hour),” and (2) there would be 420 17 minutes of “supervision for BI, consultation with school staff, 1 18 hour per month for clinic meeting.” 19 The Transfer IEP did not specify that behavior services 20 must be provided by a RBT or BCBA. Nor did it provide any 21 objectives that would have indicated that services provided by a 22 paraprofessional would not meet the requirements of the IEP. 23 Further, the court heard lengthy testimony from defendant’s staff 24 that they were provided ABA training and that staff applied ABA 25 principles in working with G.P., including paraprofessionals 26 overseen by qualified special education teachers.2

27 2 At trial, plaintiffs referred extensively to the expired 2019 IEP. However, as mentioned above, the 2019 IEP also 28 does not specify that services were to be provided by an RBT and 1 As the Ninth Circuit has articulated, methodology is a 2 discretionary decision left to school districts. See, e.g., 3 Crofts v. Issaquah Sch. Dist. No. 411, 22 F.4th 1048, 1056-57 4 (9th Cir. 2022). Therefore, absent the Transfer IEP’s 5 instructions to the contrary, it was within defendant’s 6 discretion to use a paraprofessional instead of an RBT or BCBA. 7 See R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 8 1117, 1122 (9th Cir. 2011) (“The IDEA accords educators 9 discretion to select from various methods for meeting the 10 individualized needs of a student, provided those practices are 11 reasonably calculated to provide him with educational benefit.”) 12 (citations omitted). While plaintiffs may have assumed that G.P. 13 should receive identical services at his new school, “the fact 14 that the IDEA is a federal statute does not mean that every state 15 must administer the act in the same way.” J.B. ex rel. B.B. v. 16 Lake Wash. Sch. Dist., No. C12--0574RSL, 2013 WL 195375, at *2 17 (W.D. Wash. Jan. 17, 2013) (because some “states have chosen to 18 provide evaluation and educations services that go beyond the 19 statutory requirement,” the fact that a student was receiving 20 services in one state “does not automatically mean that he is 21 eligible for services in” another state). 22 Likewise, even if plaintiffs are correct that RBTs and 23 BCBAs are better suited to provide G.P.’s behavior services, 24 defendant’s use of a paraprofessional does not deny G.P. a FAPE 25 where the evidence does not show that G.P. has been unable to 26 access his education. See Union Sch. Dist. v. Smith, 15 F.3d 27 1519, 1524 (9th Cir. 1994) (“An ‘appropriate’ public education

28 a BCBA. 1 does not mean the absolutely best or ‘potential-maximizing’ 2 education for the individual child . . . The states are obliged 3 to provide ‘a basic floor of opportunity’ through a program 4 individually designed to provide educational benefit to the 5 handicapped child.”) (citations and internal quotations omitted). 6 Plaintiffs have not persuaded the court that G.P.’s 7 educational experience would be meaningfully different if his 8 services were provided by an RBT supervised by a BCBA rather than 9 a paraprofessional. While the services he has received from 10 defendant are not identical to those in his prior school 11 district, they are, based on the court’s view of the evidence, 12 similar or equivalent, and thus comparable. Plaintiffs’ main 13 complaint about defendant’s use of paraprofessionals appears to 14 be that they gave G.P. prompts too quickly and too frequently. 15 Ms. Sunderlin and Ms. Bickelman expressed that concern at length 16 in their testimony based on their classroom observations in 2023 17 and 2024. While there may be room for improvement in the use of 18 prompts, the court nevertheless finds that defendant’s use of 19 paraprofessionals is similar or equivalent to the use of RBTs and 20 is therefore comparable under the IDEA. 21 The court was impressed with evidence at trial showing 22 the extensive resources and effort expended by defendant’s 23 teachers, aides, and other staff who have worked directly or 24 indirectly with G.P. throughout his time in the school district.3

25 3 Perhaps the most persuasive evidence of the dedication of the teachers and staff to G.P.’s education were the video 26 recordings which the court viewed of the various meetings with 27 Ms. Panicacci. These were not produced for litigation purposes, nor did it appear that any of the participants anticipated the 28 recordings would be used at trial. What they did demonstrate was 1 The court has no doubt that both sides in this case shared, and 2 continue to share, a common objective in providing G.P. with a 3 quality education. However, the teachers and staff were required 4 to exercise their own professional judgment in deciding how to 5 achieve that objective and were not required to defer to the 6 suggestions of G.P.’s parents. See, e.g., Crofts, 22 F.4th at 7 10156 (school districts are entitled to deference in deciding 8 what programming is appropriate as a matter of educational 9 policy). 10 Overall, the evidence shows that under the IDEA, 11 defendant’s use of paraprofessionals is “comparable” to the use 12 of an RBT supervised by a BCBA, and defendant’s use of a 13 paraprofessional to provide behavior services did not deny G.P. a 14 FAPE.4 15 B. Independent Educational Evaluation5 16 Federal regulations provide that parents of a child 17

18 the professionalism and sincere interest of the faculty in G.P.’s progress and in addressing Ms. Panicacci’s concerns. 19 4 The court also rejects plaintiffs’ implicit suggestion 20 that the Newhall School District’s provision of services via RBTs and a BCBA would require defendant to provide such services in 21 perpetuity. Even assuming the Transfer IEP explicitly prescribed such services, which it did not, the IDEA requires, at a minimum, 22 triennial assessments, and IEPs are valid for no longer than one year, and thus the services provided by the school district may 23 change from year to year based on the needs of the student. See 20 U.S.C. § 1414(d)(2)(C)(i)(II) (where child with an IEP 24 transfers to a school in a new state, the new school must provide comparable services until the new school develops a new IEP); see 25 also 34 C.F.R. § 300.323(f) (same).

26 5 Defendant contends that plaintiffs’ claim regarding an IEE is moot in light of the parties’ agreement that G.P. receive 27 a functional behavioral assessment from Ms. Sunderlin, which occurred on December 20, 2023. The court assumes, without 28 deciding, that the claim is not moot. 1 with a disability have the right to an IEE “at public expense if 2 the parent disagrees with an evaluation obtained by the public 3 agency.” 34 C.F.R. § 300.502(b)(1) (emphasis added). Plaintiffs 4 argue that defendant’s refusal to provide an IEE violated the 5 IDEA. 6 “A procedural violation of the IDEA constitutes a 7 denial of a FAPE if there are ‘procedural inadequacies that 8 result in the loss of educational opportunity, or seriously 9 infringe on the parents’ opportunity to participate in the IEP 10 formulation process, or cause a deprivation of educational 11 benefits.” D.O. ex rel. Walker v. Escondido Union Sch. Dist., 59 12 F.4th 394, 414 (9th Cir. 2023) (quoting Amanda J. ex rel. Annette 13 J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001)) 14 (cleaned up). “A loss of an educational opportunity occurs, for 15 example, when there is a ‘strong likelihood’ that, but for the 16 procedural error, an alternative placement ‘would have been 17 better considered.’” Id. at 417 (finding delay in IEP assessment 18 did not deprive student of an educational opportunity even if the 19 delay constituted a procedural violation of IDEA because “there 20 was no evidence that if the assessment had been conducted 21 earlier, an alternative placement would have occurred”) (cleaned 22 up). 23 Here, due to plaintiffs’ refusal to consent to the 24 school district’s requested behavioral assessment, there was no 25 evaluation of G.P. with which plaintiffs could disagree. Thus, 26 plaintiffs did not have the right to an IEE under the IDEA and 27 applicable federal regulations. See 34 C.F.R. § 300.502(b)(1); 28 see also G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1266 1 (11th Cir. 2012) (“[T]he right to a publicly funded independent 2 educational evaluation does not obtain until there is a 3 reevaluation with which the parents disagree.”); C.M.E. o/b/o 4 W.P.B. v. Shoreline Sch. Dist., No. 2:19-cv-02019-RAJ-BAT, 2020 5 WL 10141433, at *6 (W.D. Wash. Nov. 9, 2020) (consenting to only 6 a portion of a proposed assessment constitutes a complete refusal 7 to consent) (citations omitted). 8 In their November 11, 2020 meeting with defendant, and 9 at trial, plaintiffs expressed that they would not consent to a 10 behavior assessment because they believed that the district was 11 biased. Regardless of the validity of plaintiffs’ reasoning, 12 their refusal to consent to a behavior assessment meant that 13 there was no assessment with which they disagreed and thus there 14 was no right to an IEE. Cf. G.J., 668 F.3d at 1264-64 (“[I]f a 15 student’s parents want him to receive special education under 16 IDEA, they must allow the school itself to reevaluate the student 17 . . . .”) (citation and quotations omitted). 18 Plaintiffs argue that defendant’s review of G.P.’s 19 school record, including his prior IEPs, constitutes an 20 evaluation. The regulations upon which plaintiffs rely prescribe 21 what a public agency must do when conducting an evaluation. See 22 34 C.F.R. § 300.15 (“Evaluation means procedures used in 23 accordance with §§ 300.304 through 300.311 to determine whether a 24 child has a disability and the nature and extent of the special 25 education and related services that the child needs.”); 34 C.F.R. 26 § 300.304(b)(1) (“In conducting the evaluation, the public agency 27 must use a variety of assessment tools and strategies to gather 28 relevant functional, developmental, and academic information 1 about the child . . . .”). 2 The regulations do not provide, however, that reviewing 3 only a student’s school record sufficiently constitutes an 4 evaluation for purposes of the IDEA. Cf. 34 C.F.R. § 5 300.304(b)(2) (“[T]he public agency must . . . [n]ot use any 6 single measure or assessment as the sole criterion . . . for 7 determining an appropriate educational program for the child . . 8 . .”). Moreover, anything short of a formal evaluation does not 9 satisfy a school’s statutory evaluation obligation under the 10 IDEA. See Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 11 1105, 1122 (9th Cir. 2016) (finding a psychologist’s informal 12 observations of a student did not satisfy the school’s evaluation 13 obligation under the IDEA).6 Because it is undisputed that 14 plaintiffs did not consent to a behavior assessment, they were 15 not entitled to an IEE, and defendant’s refusal to provide one 16 did not violate the IDEA. 17 III. Conclusion 18 For all the foregoing reasons, because the court finds 19 that defendant has provided G.P. with a free appropriate public 20 education, judgment shall be entered in favor of defendant on 21 plaintiffs’ IDEA claim. Pursuant to this order and the jury’s 22 verdict for defendant on the ADA and Rehabilitation Act claims, 23 IT IS HEREBY ORDERED that judgment be entered in favor of 24 6 Plaintiffs also appear to argue that defendant should 25 have initiated a due process hearing in the face of plaintiffs’ failure to consent to a behavioral assessment. However, 26 plaintiffs have provided no authority, and the court is unaware of any, that required the school district to do so, or which 27 shows that this option has any relevance to the question of whether G.P. was entitled to an IEE where his parents refused 28 consent for the district’s own evaluation. 1 | defendant on all claims. 2 | Dated: May 28, 2025 he bloom HK Ad. hE 3 WILLIAM B. SHUBB , UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16