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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JACK P., a minor, by and

through JESSICA P., his 

Guardian ad Litem,

NO. CIV. S-04-896 LKK/PAN

Plaintiff,

v. O R D E R

AUBURN UNION ELEMENTARY

SCHOOL DISTRICT,

Defendant.

 /

Plaintiff, Jack P., through his Guardian Ad Litem, Jessica P.

(“parent” or “Ms. P.”), appeals an administrative due process

hearing decision by the California Special Education Hearing

Office. Plaintiff brings this action pursuant to the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et

seq., alleging that the Hearing Officer ignored substantial

evidence, failed to apply appropriate legal analysis, disregarded

law and fact, and was arbitrary and capricious when he reviewed

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plaintiff’s complaint against the defendant district’s proposed

individualized education program (“IEP”). This matter comes before

the court on the parties’ cross-motions for summary judgment. 

I. 

BACKGROUND

Plaintiff, an eight-year-old autistic minor, was enrolled as

a student at defendant district’s school during the 2002-2003,

2003-2004, and extended 2003 school year. During this time,

plaintiff’s parent and defendant district disagreed as to

plaintiff’s special education needs and services. Ms. P did not

agree that the District had assessed plaintiff in all areas of

suspected disability or had provided a free appropriate public

education (“FAPE”) for the relevant school year periods. 

On July 10, 2003, Ms. P filed a request for an administrative

due process hearing with the California Special Education Hearing

Office (“CSEHO”) pursuant to 20 U.S.C. § 1415. As provided by

IDEA, whenever a parent disagrees with a proposed individualized

education program (“IEP”), the parent may file a complaint and

receive an impartial due process hearing conducted by the state

education agency. 20 U.S.C. § 1415(b)(6),(f)(1). 

The due process hearing occurred in 2003 on November 20-21 and

December 2, 4, 5, 9-11, 16-18, and 23. In a written decision

issued on February 5, 2004, the CSEHO ruled for the defendant

district on all the issues regarding disability assessment and

defendant district’s provision of free appropriate public

education. The Hearing Officer also concluded that plaintiff was

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not entitled to compensatory education services and plaintiff’s

parent was not entitled to reimbursement for privately provided

educational services during the relevant period. 

Plaintiff now appeals the Hearing Officer’s decision asserting

a variety of grounds which are considered herein.

II. 

STANDARD OF REVIEW 

A. SUMMARY JUDGMENT STANDARDS UNDER FED. R. CIV. P. 56

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

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upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

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believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

B. STANDARD FOR IDEA CASES

“Congress intended judicial review in IDEA cases to differ

substantially from judicial review of other agency actions, in

which courts generally are confined to the administrative record

and are held to a highly deferential standard of review." Amanda

J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877, 887

(9th Cir. 2001) (citing Ojai Unified Sch. Dist. v. Jackson, 4 F.3d

1467, 1471 (9th Cir. 1993)). The questions of law and mixed

questions of fact are reviewed de novo, unless they are primarily

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factual. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310

(9th Cir. 1987). When reviewing an appeal of a hearing officer

decision in an IDEA case, the court is to hear additional evidence

outside that which was put before the hearing officer and base its

decision “on the preponderance of the evidence.” Capistrano

Unified School Dist. v. Wartenberg By and Through Wartenberg, 59

F.3d 884, 890 (9th Cir. 1995); 20 U.S.C. § 1415(e)(2). 

The Supreme Court in Rowley held that the preponderance of the

evidence standard in the statute "is by no means an invitation to

the courts to substitute their own notions of sound educational

policy for those of the school authorities which they review."

Board of Educ. of Hendrick Hudson Central School Dist., Westchester

County v. Rowley, 458 U.S. 176, 206 (1982). Rather, the court is

to review the hearing officer’s report with “due weight.” Id. How

much deference to give to the state agency is up to the court, but

the findings should not be ignored. Town of Burlington v. Dept.

of Ed., 736 F.2d 773, 792 (1st Cir. 1984), aff'd, 471 U.S. 359

(1985). The court must take into consideration the expertise of

the hearing officer, and after careful consideration the court is

free to make its own determination. Id. One criterion the Ninth

Circuit has found helpful in deciding how much weight to give to

the hearing officer’s decision is “the thoroughness of those

findings.” Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.

1994); Capistrano, 59 F.3d at 891. 

Finally, one Ninth Circuit panel said that: “Though the

parties may call the procedure a ‘motion for summary judgment’ [it]

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1 All facts listed herein are undisputed unless otherwise

noted. The facts submitted by plaintiff in the “Additional

Statement of Undisputed Material Facts” were inappropriately

submitted and have not been considered. See Local Rule 56-260(b).

8

is in substance an appeal from an administrative determination, not

a summary judgment.” Capistrano, 59 F.3d 884, 892 (9th Cir. 1995).

III.

UNDISPUTED FACTS1

A. BASIC INFORMATION ABOUT JACK

Jack was an eight year old child in second grade living within

the jurisdictional boundaries of the Auburn Union Elementary School

District (hereinafter “District”) at the time of the administrative

hearing. Pl.’s SUF 1, 5; Def.’s SUF 2. Jack has been diagnosed

as being on the autism spectrum with mild high-functioning

Pervasive Development Disorder. Pl.’s SUF 2; Def.’s SUF 3. As a

result of his autism, Jack has deficits in the areas of behavior,

academics, social skills, speech and language, and motor

development. Pl.’s SUF 3. Jack’s deficits adversely affect his

educational performance. Pl.’s SUF 4. 

Jack is entitled to receive special education and related

services pursuant to the federal IDEA and state special education

law as a child identified with autism. Pl.’s Compl. at ¶ 4; Def.’s

SUF 1. 

B. JACK’S ARRIVAL IN DISTRICT AND PREPARATION OF FIRST IED

The District was first notified that Jack resided in the

District’s boundaries and required special services by a letter

from Jack’s attorney, Bob Varma, on November 7, 2002. Def.’s SUF

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4, citing AR at 5000; Test. of C. Malin, at 55:4-22 of the Dec.

9, 2003 RT. Upon receipt of Mr. Varma’s letter, Claudia Malin,

Coordinator of Special Education, contacted Ms. P and scheduled a

meeting to visit various school sites and to develop an interim

IEP. Def.’s SUF 5, citing Test. of C. Malin, at 56:19-58:9 of the

Dec. 9, 2003 RT. The first interim IEP was developed on November

13, 2002, and provided Jack with: (1) full inclusion placement in

a regular education first grade classroom; (2) full-time assistance

by a 1:1 instructional aide; (3) speech and language therapy

(“SLT”) services 90 minutes each week; (4) occupational therapy

(“OT”) services 2 times each week for 45 minutes each session; and

(5) behaviorist services to be determined within 30 days. Def.’s

SUF 6, citing AR at 3058-3059. 

On November 19, 2002, another IEP meeting was convened where

the District offered Jack the same terms as the previous IEP, but

also included the goals and objectives developed by Jack’s previous

school district of attendance, the Fairfield-Suisun School

District. Def.’s SUF 7, citing AR at 3061-3098. At the November

13, 2002, IEP meeting, Ms. P informed the IEP team that she never

signed an IEP right away but took it home to consider it. Def.’s

SUF 8, citing Test. of C. Malin, at 60:10-13 of the Dec. 9, 2003

RT. On or about November 20, 2002, Ms. P signed, with partial

agreement, the IEPs developed on November 13, 2002, and November

19, 2002. AR at 3058, 3097. District staff began implementing the

IEP developed on November 19, 2002 and Jack enrolled in Skyridge

Elementary school in a first grade class taught by Susan Spence.

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2 Defendant disputes what date the District received the

report, but they do not seem to dispute that they actually had a

copy. 

10

Def.’s SUF 10, citing Test. of C. Malin, at 63:25-64:2 of the Dec.

9, 2003 RT; Test. of S. Spence, at 8:8-11 of Dec. 23, 2003 RT;

Test. of Ms. P, at 43:26-44:4 of Dec. 4, 2003 RT. 

The Auburn Union Elementary School District had in its

possession a report prepared by Fairfield-Suisun Unified School

District that identified Jack’s deficits in auditory processing.2

Pl.’s SUF 11, citing AR at 4056-62. The report demonstrates that

the prior school district conducted a psycho-educational assessment

of Jack’s central auditory processing needs on May 24, 2002 and

found that Jack had “significant delays in auditory processing,”

that the tests indicate “delays in auditory memory,” and that the

results were indicative of “deficits in auditory memory, auditory

discrimination, auditory sequencing and auditory attention.” AR

at 4056-62; Pl.’s SUF 14. The Hearing Officer found that “[w]hile

the results of that assessment were indicative of deficits in

auditory memory, auditory discrimination, auditory sequencing, and

auditory attention, no further testing was recommended.

Presumably, the assessors in Fairfield-Suisun would have

recommended additional testing by an audiologist had they deemed

it necessary or advisable.” Pl.’s SUF 15. 

On December 19, 2002, another IEP meeting was convened. AR

at 3100-3130. The purpose of this meeting was to review Jack’s

interim placement and services at Skyridge. The parties agree that

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the team discussed potential assessments for Jack in the areas of

Occupational Therapy (“OT”), and adaptive physical education

(“APE”), but dispute the extent to which central auditory

processing was discussed. AR at 3100-3130; Test. of H. Painter,

at 13:14-14:19 of the Dec. 18, 2003 RT; Test. of E. Aldrich,

131:23-132:9 of the Dec. 5, 2003 RT; Def. Resp. SUF 6 & 7, citing

Test. of C. Malin at 85:19-23 of the Dec. 9, 2003 RT, 167:3-8 of

the Dec. 11, 2003, RT. Ms. Malin testified that the central

auditory processing assessment was discussed at the team meeting,

but that Ms. P did not want to go ahead at that time. The

plaintiff disputes this characterization. Test. of C. Malin, at

85:19-23 of Dec. 9, 2003 RT; Pl.’s Resp. SUF 19. Ms. P testified

that Jack had been assessed in Fairfield and found to have auditory

deficits, and she wanted a further assessment in that area because

there were no goals and objectives developed to address the deficit

in the IEP. Pl.’s SUF 10. Following the meeting, Ms. P sent a

specific written request in a letter to the District on Jan. 8,

2003 for further assessment of Jack by someone qualified to assess

and treat his auditory integration issues and noted that she

understood that Carol Maher was commonly chosen by the District to

perform such assessment. Pl.’s SUF 6, citing AR at 5003-04. 

The District proposed an assessment plan for the OT and APE

assessments, but Ms. P never consented. AR at 4073; Test. of H.

Painter, at 14:5-9 of the Dec. 18, 2003 RT. In the letter dated

January 8, 2003, that was sent to Ms. Malin, Ms. P consented to the

December 19th IEP with the exception of (1) the re-written SLT

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3 The parties dispute whether it was mailed or handdelivered.

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goals; (2) SLT limited to only 30 minutes; (3) SLT being provided

during the school day, (4) OT being provided during the school day,

and (5) tardies being indicated on the IEP. AR at 5001-5004. 

Notably, Ms. P specifically consented to Ms. Chargin providing

Jack’s behavioral services and Discrete Trial Training (“DTT”) each

instructional day between 8:15 and 9:15 a.m. AR at 5003. 

Thereafter, the IEP team proposed modifications to Jack’s

goals and objectives; adding 1:1 instructional services for 50

minutes each instructional day; and reducing his OT to 20 minutes

each session. AR at 3100-3130. The District mailed or handdelivered3 an assessment plan on or about February 3, 2003. AR at

2015. The District’s plan called for an assessment of “Central

Auditory Processing” to be done by the speech therapist and the

school psychologist. Pl.’s SUF 9. 

Eleanor Ross Aldrich was the speech and language therapist

assigned to Jack’s case by the District. Pl.’s SUF 16. Ms.

Aldrich testified that it is pretty typical for children on the

autism spectrum of disorders to have concerns around auditory

processing. Pl.’s SUF 17. Ms. Aldrich testified that central

auditory processing disorders or auditory processing disorders are

diagnosed with the use of instrumentation that the District does

not own and that she is not trained to use. Pl.’s SUF 18-19. 

////

////

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While she has experience using the equipment, Ms. Aldrich testified

that because she is not an audiologist, she could not provide a

test that would diagnose auditory processing disorders. Pl.’s SUF

20. 

Ms. Aldrich testified that the assessment offered by the

District would have been a screening to determine the likelihood

of whether a central auditory processing deficit existed, and when

asked if what she described as her ability to screen was consistent

with what was identified as a central auditory processing

assessment by the plan, she replied that all she could do is check

to see the likelihood of central auditory processing deficit, but

that her screening would not identify the deficits. Pl.’s SUF 21-

23. Ms. Aldrich testified that her screening would not provide

information that would be adequate for remediation of a central

auditory processing deficit. Pl.’s SUF 24. Ms. Aldrich further

testified that an assessment conducted by Ms. Maier, an

audiologist, would be different from the one proposed by the

District in its assessment plan of February 3, 2003. Pl.’s SUF 25.

On February 3, 2003, the District received notice that Ms. P

had filed a compliance complaint with the California Department of

Education (“CDE”) regarding the implementation of Jack’s IEP. AR

at 2000-2009. Specifically, Ms. P complained that (1) the District

did not provide an assessment plan for auditory

integration/processing issues, (2) did not provide speech and

language data and notes from the pull-out sessions, (3) pulled Jack

out without Ms. P’s consent and (4) did not provide her with a copy

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of her son’s IEPs. AR at 2007. The California Department of

Education investigated a complaint by Ms. P and found that the

District had not timely submitted an assessment plan and delayed

in providing Jack records, but dismissed Ms. P’s other two

complaints. AR at 2025-34. 

The same day Ms. Malin was notified that a complaint was

filed, she sent Ms. P a letter (1) offering to provide Jack with

SLT and OT after school until the IEP meeting scheduled on February

26, 2003; (2) enclosing a copy of the December 19th IEP; and (3)

offering to assess Jack’s central auditory processing needs and

enclosing an assessment plan. AR at 2010-2016. It is disputed

whether Ms. P ever responded to this letter, but defendant cites

testimony that Ms. P refused the services in a phone call with Ms.

Painter. Test. of H. Painter, at 19:1-23 of the Dec. 18, 2003 RT.

The District convened a series of IEP meetings for Jack on

February 26, March 3, March 18, and March 26, 2003. AR at 3134-

3176. Over the course of these meetings, the team reviewed his

present levels of performance, progress, and goals and objectives.

AR at 3134-3176. The District continued to offer Jack the same

program, placement, and services, but modified his services to (1)

increase SLT to 40 minutes each pull-out session during the school

day; (2) increase OT to 30 minutes each pull-out session during the

school day; and (3) add team meetings twice each month. AR at

3134-3176. On April 30, 2003, more than one month after the IEP

was developed, Ms. P consented in full to the offered IEP,

including the goals and objectives, and pull-out related services.

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AR at 3175. Upon the parent’s consent, District staff began

implementing all components of Jack’s IEP. Test. of E. Chargin,

at 119:10-24 of Dec. 10, 2003 RT; Test. of H. Painter, at 24:9-17

of Dec. 18, 2003 RT; Test. of E. Aldrich, at 152:27-153:2 of Dec.

5, 2003. 

C. PROVISION OF ESY AND EXTENDED ESY

On May 20, 2003, the District convened another IEP meeting,

this time to develop a plan for the 2003 extended school year

(“ESY” or summer school). AR at 3177-3219. The IEP team reviewed

Jack’s progress on each of his goals and determined those which he

had met, made progress on, or not made head-way on. AR at 3177-

3219. Ms. Chargin testified that Jack made great progress on his

behaviors, however the parties dispute the extent of the progress

and the manner in which it was documented. AR at 4089; Pl.’s Resp.

SUF 38. The IEP offered an ESY program that consisted of a 4-week

program at Auburn Elementary School wherein Jack would have

received a continuation of the 2002-2003 school year program,

placement and services. AR at 3177-3219. The plan indicated that

Jack was to participate in an additional 4-week program, but did

not specify the exact nature of the program. AR at 3219. In a

letter to Ms. Malin dated June 1, 2003 (fax stamp shows received

June 11, 2003), Ms. P wrote that she had taken her son’s program

binder home to review and based upon her review she thought Jack

was regressing in all areas. AR at 5014. 

Claudia Malin testified as the Special Education Coordinator

for the Auburn Union Elementary School District and as the “School

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Administrator or Designee” for Jack’s IEP on May 20, 2003. Pl.’s

SUF 27, 28. Ms. Malin testified that the District’s offer of

placement and services for the ESY was contained on page one and

page 43b of the May 20, 2003 IEP document. Pl.’s SUF 29. The IEP

document of May 20, 2003, states that Jack is to spend 100% of his

time in general education with special education support and/or

services and has the box for ESY checked. Pl.’s SUF 30. The box

does not contain an explanation of the specific services in the

space provided, although the notes in subsequent pages do explain

that Jack will attend summer school at Auburn Elementary from June

23, 2003, to July 19, 2003 and extended ESY for “up to an

additional four weeks to maintain skills.” Id. The IEP notes do

not state the length of the school day for summer school. Pl.’s

SUF 33. However, Ms. P testified at one point that she understood

that ESY would include 3 hours of discrete trial training. See

Test. of Ms. P, at 157:8-19 of the Nov. 21, 2003 RT. The IEP notes

state that Jack will also attend an “extended” summer school, with

dates “to be determined up to 4 wks to maintain skills.” Pl.’s SUF

34. 

The May 20, 2003, IEP document contains a notation that the

next IEP team meeting for Jack would be held on September 30, 2003.

Pl.’s SUF 35. When asked whether the IEP of May 20, 2003 indicates

the amount of one-to-one instruction Jack would receive, Ms. Malin

testified that it does not note the time on the document. Test.

of C. Malin, at 175:27-176:5 of the Dec. 11, 2003 RT. Although Ms.

Malin also testified that the IEP indicated that one-to-one

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direction would be given five times weekly for 60 minutes during

the school year and that she believed the conversation of the IEP

team was that the summer school and extended summer school would

be similar to this if not the same. Test. of C. Malin, at 176:10-

24 of the Dec. 11, 2003 RT. Ms. Malin further testified that she

did not anticipate any changes to the amount of one-to-one

instruction except that it might look a little bit different during

the extended ESY because there were not going to be many other

students to work with during that period. Test. of C. Malin, at

177:1-8 of the Dec. 11, 2003 RT. However, Ms. Malin also testified

that she thought summer school ran for either four or four-and-ahalf hours, she was not quite sure. Pl.’s SUF 42, citing Test. of

C. Malin, at 180:17-27 of the Dec. 11, 2003 RT. It was going to

be up to Ms. Chargin to develop the exact period once they

determined the number of students, the teacher, etc. Test. of C.

Malin, at 193:4-15 of the Dec. 16, 2003 RT. She thought Ms.

Chargin was prepared to do one-to-one for up to four hours,

depending upon what was going to be best for Jack. Pl.’s SUF 42,

citing Test. of C. Malin, at 180:17-27 of the Dec. 11, 2003 RT. 

In response to whether the District was offering Jack one-toone services in the amount of up to four hours per day during ESY,

Ms. Malin testified “[i]t could have been if that was what was

appropriate.” Pl.’s SUF 43. Ms. Malin testified that she did not

write the specific details of what the program looked like on the

IEP because it was still evolving and the time and frequency of

services was the offer of a free appropriate public education.

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Pl.’s SUF 44-45. When asked about the services Jack would receive

in the extended ESY, Ms. Malin testified that he would have gotten

everything that was listed on the front page of his IEP. Test. of

C. Malin, at 181:24-27 of the Dec. 11, 2003 RT. Ms. Malin also

testified the extended ESY would have been the same duration as the

ESY, around four hours, but she did not have the exact time-frame

at the IEP meeting in May of 2003. Test. of C. Malin, at 182:1-8

of the Dec. 11, 2003 RT. Ms. Malin testified that Jack had not

attended the summer school or extended ESY program in the District

previously. Test. of C. Malin, at 182:11-12 of the Dec. 11, 2003

RT. 

When asked if the IEP of May 20, 2003, contained the full

offer for ESY or if there was going to be another IEP team meeting

Ms. Malin testified in response: “No, this is - uh - our offer 

. . . . it’s kind of confusing I think to even - uh - people here

at this table what that looked like.” Pl.’s SUF 40, citing Test.

of C. Malin, at 178:21-27 of the Dec. 11, 2003 RT. Ms. Malin

testified that team meetings would continue during ESY and the IEP

team would have reconvened if Jack’s program needed to be adjusted.

Test. of C. Malin, at 192:14-25 of the Dec. 16, 2003 RT. 

Ms. Chagrin testified that they were thinking of increasing

the one-to-one time to between 2-3 hours. Test. of E. Chargin, at

36:5-15 of Dec. 11, 2003 RT. At the time of the May 20, 2003 IEP

meeting, Ms. Chargin testified that she thought that Jack would

have a longer school day than the typical 8:30 am to 12:10 pm ESY

school day and that there was a consensus that the discrete trial

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training provided in the ESY to Jack would be longer than one hour

per day. Test. of E. Chargin, at 36:1-4, 36:18-22, 37:3-1 of Dec.

11, 2003 RT; Pl.’s SUF 53, citing Test. of E. Chargin, at

38:27-39:3 of Dec. 11, 2003 RT. 

Ms. Chargin was under the belief that the ESY program for Jack

would have been with regular education children who were behind in

academics such as reading and math. Pl.’s SUF 54, citing Test. of

E. Chargin, at 40:1-12 of Dec. 11, 2003 RT. As regular school was

not in session during the extended ESY, Ms. Chargin testified that

Jack would not have been with typically functioning peers during

the day. Test. of E. Chargin, at 42:9-17 of the Dec. 11, 2003 RT.

Ms. Chargin did not know what the length of Jack’s school day would

have been during the extended ESY. Pl.’s SUF 55, citing Test. of

E. Chargin, at 41:9-13 2 of Dec. 11, 2003 RT. During the extended

ESY, Jack’s entire day would have been one-to-one training

including OT and SLT. See Test. of H. Painter, at 27:12-22 of Dec.

18, 2003 RT; Test. of E. Aldrich, at 161:22-163:7 of the Dec. 5,

2003 RT. 

The team agreed that the aide, Ms. Hedenland, could bring her

12 year old daughter to the extended ESY with Jack. Test. of E.

Chargin, at 42:22-43:4 of the Dec. 11, 2003 RT. The Hearing

Officer found that, “the evidence presented at hearing demonstrates

that Lisa Hedenland was appropriately qualified to serve as Jack’s

one on one instructional aide and that Jack benefitted

educationally from his placement and her services during the

2002-2003 school year. Pl.’s SUF 68. 

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Pursuant to the IEP, Erin Chargin, owner and Director of

Learning Solutions, provided Jack with behavior consultation

services with the assistance of an instructional aide, overseeing

Jack’s behavioral intervention plans, positive reinforcement

systems, and direct instruction. Test. of E. Chargin, at 4:21-23,

at 30:22-31:11 of Dec. 10, 2003 RT; AR at 3061-3098. Ms. Chargin

is an experienced behavorist knowledgeable in Applied Behavior

Analysis and in working with children with Autism. Test. Of E.

Chargin, at 5:6-25, 7:26-8:5, 22:16-18 of the Dec. 10, 2003 RT. 

She has a Master’s Degree in special education and a teaching

degree in early intervention/early childhood special education; she

has a teaching credential for the state of Oregon which she was

working on transferring to California at the time of her testimony.

Pl.’s SUF 67; Test. of E. Chargin, at 11:25-26, 186:14-16 of the

Dec. 10, 2003 RT. 

Ms. Chargin trained school staff throughout the 2002-2003

school year through ongoing consultation and team meetings. Test.

of E. Chargin, at 6:18-30:17 of Dec. 10, 2003 RT; Test. of L.

Hedenland, at 19:25-22:11 of Dec. 17, 2003 RT; Test. of S. Spence,

at 16:24-18:24, 48:18-49:5 of Dec. 23, 2003 RT. Ms. Chargin

testified that she was experienced in tracking data and that it is

a necessary part of an autistic program for a child because it

tells if the interventions being used are working. Pl.’s SUF 65-

66. 

////

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Ms. Chargin was aware that each of Jack’s individual programs

had not been run every day during discrete trial training and

testified that it was her hope to address that in the ESY by

increasing the amount of discrete trial training he received.

Pl.’s SUF 59. Ms. P was unsure of how many hours of one-to-one

discrete training was to be given, she thought it would be either

two or three hours. See Test. of Ms. P, at 157:15 of Nov. 21, 2003

RT and 37:3-6 of Dec. 4, 2003 RT. Ms. Chargin testified that her

progress reports were based partly on data from DTT and also from

other observations or while working with Jack. Test. of E.

Chargin, at 56:11-58:3 of the Dec. 11, 2003 RT. Chargin also

testified that she learned that Jack could count up to 50 from

observing him in other environments where data was not recorded.

Test. of E. Chargin, at 49:12-26 of the Dec. 11, 2003 RT. Although

Ms. P had consented to Ms. Chargin’s continued services one month

prior, Ms. P complained that Ms. Chargin “had ensured failure” of

Jack’s program. AR at 5015. 

The Hearing Officer found that “[t]he fact that the

behaviorist might propose an increase in the amount of discrete

trial training, depending upon Jack’s ability to participate in the

full-inclusion setting, does not render the District’s offer

unclear, particularly in light of the fact that she had not had an

opportunity to observe him in that setting as of the May 20, 2003

IEP meeting.” Pl.’s SUF 26.

On June 23, 2003, the first day of the 2003 ESY, Jack’s

program, placement, and services were ready to begin but Ms. P had

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4 Defendant tries to point out that Bridges is/was a client

of Mr. Varma. It is disputed, however, as to whether this is true

or whether it is relevant. See SUF 47. 

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withdrawn Jack from the school. AR at 5014-16; Test. of C. Malin,

at 104:5-24 of Dec. 9, 2003 RT; Test. of H. Painter, at 28:13-15

of Dec. 18, 2003 RT; Test. of Ms. P, at 122:22-123:4 of Dec. 2,

2003 RT. On June 24, 2003, the District sent a letter to Ms. P

explaining that it was a “great concern” that the specialists were

waiting to serve Jack and that “he is missing out on the gains he

might be making . . . .” AR at 5016. In response to the

District’s letter, on June 25, 2003, Jack’s attorney, Bob Varma,

sent a letter requesting that within one week, the District remove

Ms. Chargin from Jack’s program and contract with Bridges

Behavioral Language Systems (“Bridges”) for an assessment and

services, or face a due process hearing. AR at 5017.4 On July 2,

2003, Anne Sherlock, attorney for the District, responded to Mr.

Varma’s letter and stated that the District believed Ms. Chargin

had been doing an excellent job with Jack and continued to be an

appropriate provider. AR at 5018-5019. However, in order to get

him back into school, the District agreed to change Jack’s

behaviorist to another non-public agency and agreed to contact Mr.

Varma once it selected an appropriate service provider. AR at

5018-5019.

A few days later, Ms. Sherlock notified Mr. Varma that the

District had contracted with Teaching Autistic Children (“TAC”) to

provide Jack’s behavioral services and offered an assessment plan.

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AR at 5023-5024. Mr. Varma requested a due process hearing on July

10, 2003. Pleadings and Correspondence 242-243. Jack did not

attend any of the offered 2003 ESY program and Ms. P did not

consent to the TAC services or assessment. AR at 5023-5025; Test.

of H. Painter, at 28:13-15 of Dec. 18, 2003 RT. 

D. THE 2003-2004 SCHOOL YEAR

The parties participated in mediation on August 22, 2003. AR

at 1000-1003. At the mediation the District agreed to contract

with Bridges5 to train Jack’s instructional aide, Lisa Hedenland.

AR at 1001. Bridges provided some training to Ms. Hedenland on

September 2, 3, and 4, 2003. AR at 1001; Test. of L. Hedenland,

at 63:14-18 of Dec. 17, 2003 RT. The training on September 2,

2003, occurred in Jack’s home, and included the training of a

Bridges in-home tutor. Test. of L. Hedenland, at 63:24-65:18 and

66:12-22 of Dec. 17, 2003 RT; Test. T. Mills, at 53:11-16 of Nov.

21, 2003 and 113:12-114:1 of the Nov. 20, 2003 RT. The parties

dispute whether the District knew this would occur. The training

was provided by Tara Mills and Danielle McClane, employees of

Bridges. Test. of T. Mills, at 94:19, 123:2-4 of the Nov. 20, 2003

RT; Test. of L. Hedenland, at 66:5-6, 67:3-14 of Dec. 17, 2003 RT.

Ms. Hedenland’s training from Bridges was general in nature and

occurred prior to the development of Jack’s behavior plan. AR at

4102-4108; Test. of L. Hedenland, at 63:14-18, 66:7-20, 67:14-20

of Dec. 17, 2003 RT.

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Ms. Malin testified that she signed a contract (that was not

ratified by the Board) or individual service agreement with Bridges

for services for Jack to be provided from September 1, 2003

onwards, in the rate of 20 hours per month by a Master’s level

consultant. December 11, 2003 RT at 193:1-197:1-28. Ms. Malin

testified that Bridges provided service to Jack on the District’s

school site pursuant to the mediation agreement, contract and/or

service agreement. December 11, 2003 RT at 193:1-197:1-28.

Bridges assigned Tara Mills as the Master’s level behavior

consultant to oversee Jack’s educational program at school. Test.

of A. Gifford, at 76:23-25 of Dec. 4, 2003 RT; Test. of C. Malin,

at 135:7-13 of Dec. 11, 2003 RT. Defendant disputes Ms. Mills’

qualifications, claiming that Ms. Mills received her degree from

an online unaccredited institution. Def.’s SUF 69, Test. of C.

Malin, at 135:7-16 of Dec. 11, 2003 RT. Ms. Malin testified that

her decision to hire Bridges to oversee Jack’s behavioral program

may have been affected if she had known about Ms. Mills’

qualifications. Test. of C. Malin, at 135:7-134:6 of Dec. 11, 2003

RT. 

Prior to Jack returning to school in the 2003-2004 school

year, Ms. P requested that Ms. Mills of Bridges conduct an

assessment which included recommendations for Jack in the school

environment, although Ms. Mills had not yet observed him in the

school setting or interviewed his teacher. AR at 4091-4101; Test.

of T. Mills, at 47:21-48:9, 51:4-6 of Nov. 21, 2003 RT. With

respect to the 2003-2004 school year, from September to November

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of 2003, the Hearing Officer found that, “Ms. Mills testified that

at the IEP meeting on October 9, 2003, the District requested that

she provide additional training regarding the implementation of the

behavior plan. Ms. Mills and Ms. Hedenland testified that Ms.

Hedenland needed more training. Ms. Mills further testified that

she and [Ms. P.] had discussed Ms. Hedenland and agreed that Ms.

Hedenland would be an appropriate aide with more training.” Pl.’s

SUF 69. 

Jack returned to school on September 4, 2003. Upon his

return, the District staff planned to implement his last agreed

upon IEP consented to by Ms. P on April 30, 2003. Test. of C.

Malin, at 117:3-18 of Dec. 9, 2003 RT. For the 2003-2004 school

year, Jack was placed at Skyridge in a second grade classroom

taught by Susan Quail, a qualified teacher who had prior experience

with full inclusion students. Test. of D. Chandler, at 23:23-25:11

of the Dec. 5, 2003 RT; Test. of S. Quail, at 64-68 of Dec. 18,

2003 RT. Ms. Hedenland continued as Jack’s instructional aide.

Test. of L. Hedenland, at 59:24-27 of Dec. 17, 2003 RT. Ms.

Hedenland was to be responsible for addressing his behaviors,

implementing multiple positive reinforcement systems, recording

several types of data, and assisting Jack with his class work.

Test. of L. Hedenland, at 6:11-16 , 24:17-26:27 and 33:5-34:6 of

Dec. 17, 2003 RT.

Once Jack returned to school, Ms. Aldrich and Ms. Painter

attempted to implement Jack’s SLT and OT. Test. of E. Aldrich, at

164:17-165:22 of Dec. 5, 2003 RT; Test. of H. Painter, at 29:3-30:5

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of Dec. 18, 2003 RT. However, Ms. P sent several letters to the

District demanding that such services not be provided until a time

for pull-out was determined by the team, which prevented

implementation of Jack’s SLT and OT. AR at 5033-5036. 

On October 9, 2003, the District convened an IEP meeting to

conduct an annual review of Jack’s IEP. AR at 3220-3223. During

the meeting on October 9, 2003, which lasted more than 3 hours, the

IEP team reviewed Jack’s present levels of performance, reports

from Bridges, academic testing by Ms. Quail, and his progress on

his previous goals and objectives. AR at 3220-3223; Test. of C.

Malin, at 124-129 and 147:1-12 of Dec. 9, 2003 RT. The District

team members discussed additional training on the behavior plan

that was drafted by Bridges, and it was agreed that such training

would occur for Ms. Hedenland and the substitute aides. AR at

5051-5052; Test. of C. Malin, at 149:3-23 of the Dec. 9, 2003 RT

and at 121:4-222:12 of the Dec. 11, 2003 RT. The parties dispute

what was agreed to at the end of the meeting -- plaintiff believes

that Ms. P wanted the goals to be completed by the end of the

meeting, while defendants state that the team agreed to meet again

to discuss the proposed goals and objectives on October 20th.

Test. of C. Malin, at 144:19-26, 145:17-21 of the Dec. 9, 2003 RT;

AR at 5051-5052. 

The parties dispute why, but the District claims it was not

able to conclude the IEP meeting commenced on October 9, 2003.

Test. of C. Malin, at 140:1-142:25 of the Dec. 11, 2003 RT. Ms.

P requested that the meeting continue that day until it was

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completed. Test. of C. Malin, at 146:18-147:12 of the Dec. 9, 2003

RT. The District requested that the meeting be reconvened. AR at

5051-5052 and 5059-5060; Test. of C. Malin, at 140:7-142:22 of the

Dec. 11, 2003 RT. The team discussed potential dates to reconvene

the IEP meeting to discuss program, placement, and services. Test.

of C. Malin, at 146:14-25 of the Dec. 9, 2003 RT. The parties

dispute whether Ms. P was available at a time earlier agreed upon.

Pl.’s Resp. SUF 71-75; Test. of C. Malin, at 146:18-25 of the Dec.

9, 2003 RT. 

On October 16, 2003, Ms. Sherlock sent Mr. Varma a letter

proposing that the IEP meeting continue on November 10, 13, or 14,

2003. AR at 5051-5052; Test. of C. Malin, at 140:14-27 of the Dec.

11, 2003 RT. Ms. P. testified that she did not receive the new IEP

team meeting dates until the weekend before the hearing, and that

the proposed dates fell on the date the hearing was scheduled to

begin. December 3, 2003 RT at 43:8-9. On October 24, 2003, Mr.

Varma requested that the due process hearing be put back on

calendar. Pleadings and Correspondence at 217. 

On October 20, 2003, Jack ceased attending Skyridge. AR at

5062; Test. of C. Malin, at 125:15-18 of the Dec. 11, 2003 RT. The

parties dispute whether Ms. P provided the District with notice

that she would be enrolling him in private services. Pl.’s Resp.

SUF 81. The District believed Jack was truant and sent letters to

Ms. P pursuant to Education Code section 48261, notifying her that

Jack had an attendance problem. AR at 5061; Test. of D. Chandler,

at 58:10-25 of the Dec. 5, 2003 RT. At 9:44 on the morning of

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October 20, 2003, Bridges cancelled the training session that was

to start at 8:00 a.m. that day, stating that their cancellation was

in response to the District’s request that only a portion of the

behavior plan they had prepared be used. AR at 5049, 5057; Test.

of C. Malin, at 121:8-122:22 of the Dec. 11, 2003 RT. 

On November 13, 2003, the District provided Ms. P with an

Administrative Offer of Placement (“Administrative Offer”). AR at

3224-27. Defendant district claims it essentially offered to

continue Jack’s then current program, placement, and services,

except that the behavioral services and instructional aide would

be provided by Advanced Kids, a state-certified non-public agency.

AR at 3224-3227; Test. of C. Malin, at 142:18-25 of the Dec. 11,

2003 RT. It also offered to continue implementing the previously

agreed-upon goals and objectives dated Dec. 12, 2002. AR at

3224-3227. 

With respect to the 2003-2004 school year, from September to

November of 2003, the Hearing Officer found that, “the evidence

demonstrates that Jack was receiving educational benefit from the

District’s program. Specifically, Jack continued to receive

behavior intervention services, a one to one aide, and speech and

language and occupational therapy while working on his goals and

objectives in his areas of need.” Pl.’s SUF 70. 

During the due process hearing, the District learned that on

or about December 8, 2003, Ms. P had enrolled Jack in Merryhill

School, a private school. Test. of Ms. P, at 137:17-138:5 of Dec.

2, 2003 RT and 76:18-77:4 of Dec. 23, 2003 RT. Merryhill School

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is not a non-public school certified by the State to provide

special education services to students with special needs.

See California Department of Education list of certified non-public

schools, Exhibit A to Decl. of Cannon. Ms. P testified that her

son was receiving services from Bridges while at Merryhill School.

Test. of Ms. P, at 78:16-79:21 of Dec. 23, 2003 RT. At the time

in dispute, Jack resided within District’s boundaries. Compl. at

¶ 12. Plaintiff has since moved from the District’s boundaries and

is no longer entitled to, nor receiving, any special education

services from District. Decl. of Cannon, ¶ 3.

VI. 

ANALYSIS

A. DID THE DISTRICT ASSESS JACK IN ALL AREAS RELATED TO THE

SUSPECTED DISABILITY?

Prior to becoming a student in the District, Jack was given

a psychoeducational evaluation by the Fairfield-Suisun School

District which assessed his auditory processing. AR at 4056. The

results from the tests given were found to be “indicative of

deficits in auditory memory, auditory discrimination, auditory

sequencing, and auditory attention.” AR at 4061. Upon arrival in

the District, Ms. P requested that a further assessment of his

“auditory integration issues” be conducted by a qualified

individual, such as Carol Maher. AR at 5001-5004. The District

responded with an assessment plan in a letter date February 3, 2003

which proposed an evaluation of Jack’s “Central Auditory

Processing” by a speech and language specialist and a school

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psychologist. AR at 2015, 2017. Eleanor Ross Aldrich was the

speech and language therapist assigned to Jack’s case by the

District, and she testified that the proposed test would involve

a screening process that would determine whether it was likely or

unlikely that Jack has a central auditory processing disorder, but

would not help to determine the proper remediation if the disorder

does exist. Dec. 9 Test. 15:23-27 - 16:1-4. 

Plaintiff argues that the proposed assessment by the District

would have just been a repeat of what was already done and would

not have provided the further information needed to decide what

action, if any, should be taken to remedy Jack’s deficits. While

this factual contention may be correct, it is not clear that the

legal standard requires that the District proceed immediately to

a test with an audiologist, especially since the test done by

Fairfield did not recommend any further testing. Pleadings ¶¶ 36-

37. The parties and the hearing officer argue that California

Education Code provides that a parent may request an assessment to

identify an individual with exceptional needs. Cal. Educ. Code 

§ 56029. The assessment shall be “conducted by persons

knowledgeable of that disability” and “not use any single procedure

as the sole criterion for determining whether a child is a child

with a disability or determining an appropriate educational program

for the child” and should “use technically sound instruments that

may assess the relative contribution of cognitive and behavioral

factors, in addition to physical or developmental factors.” Cal.

Educ. Code §§ 56320(g), 56302.5; 20 U.S.C. § 1414(b)(2)(B-C). 

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 There is also a duty to reassess in § 56381 “once every three

years or more frequently, if conditions warrant a reassessment.”

Cal. Educ. Code § 56381. The duty to reassess requires the

District to review existing assessment data and determine what

additional data, if any, is needed to determine whether the student

has a disability in that area and whether this warrants any changes

in the IEP of the student. Cal. Educ. Code § 56381(b)(2)(A-D). 

If the District is specifically asked by the parent, it must

conduct the assessment even if it determines that no further data

is required. Cal. Educ. Code § 56381(d). 

The District knew that Fairfield had already done an initial

screening and determined that Jack showed a likelihood of having

a problem. Thus it would be appropriate, after being asked to do

an assessment by Ms. P, to proceed with testing by someone who

could accurately analyze if Jack indeed had an auditory processing

deficit, and if so, to determine how to treat it. Nonetheless, it

appears that there is no statutory standard which requires the

District to do so. The cited statutory sections do require that

proper persons conduct the tests and that they be done using the

appropriate methods, but there is nothing that prohibits an initial

“screening” to be done first. In light of this uncertainty, the

court concludes that it is appropriate to give “due weight” to the

finding of the administrative officer that the District had done

its job in offering to assess Jack’s auditory processing. The

court is not to “substitute its own judgments of sound educational

policy” for those of the District, and thus should give due weight

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to the District and the hearing officer’s findings and hold that

the District met its obligation to assess Jack’s central auditory

processing. Rowley, 458 U.S. at 206 (1982). Since it seems that

Ms. P did not actively follow through after the proposed assessment

was offered (and continue to insist upon the type of assessment she

believed was appropriate), the court will not impose a greater

burden on the District by requiring it to consistently check in

with the parent after an offer is made. Accordingly, plaintiff’s

motion for summary judgment must be denied and summary judgment

must be entered for defendant. 

B. WAS JACK GIVEN A FAPE FOR THE 2002-2003 SCHOOL YEAR?

The District was notified that Jack was going to be enrolling

as a student in their district in the late fall of 2002. Def.’s

SUF 4, citing AR at 5000; Test. of C. Malin, at 55:4-22 of the Dec.

9, 2003 RT. The District then arranged to meet with Ms. P to go

over school sites and develop an interim IEP. Def.’s SUF 5, citing

Test. of C. Malin, at 56:19-58:9 of the Dec. 9, 2003 RT. They were

able to agree upon an initial IEP in November with an understanding

that they would meet again in a month to settle on a permanent IEP.

AR at 3058, 3097, 3100-3130. In December they met and the District

made an IEP offer. AR at 3100-3130. Ms. P consented to the

December IEP except in five areas which she expressed in a letter

to the District in January. Ms. P consented to Ms. Chargin

providing Jack’s behavioral services and Discrete Trial Training

each instructional day. AR at 5003. 

////

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Plaintiff contests whether the implementation of this IEP

constituted a FAPE for the 2002-2003 school year. Plaintiff argues

that the IDEA calls for accountability in the implementation of the

IEP and that the District violated this mandate by keeping poor

track of data which would have enabled Ms. P to properly monitor

Jack’s progress. The District argues that the Hearing Officer was

correct in finding that the District offered and provided Jack with

a FAPE for the 2003-2003 school year. They attempt to demonstrate

that Jack’s IEP was adequately designed to meet Jack’s needs and

to provide him with some educational benefit and that the IEP was

followed in the least restrictive environment such that Jack was

given a FAPE for the 2002-2003 school year.

While the IDEA provides detailed procedural requirements, it

is light on substantive requirements. Rowley, 458 U.S. at 205-206

(1982) (noting that “[c]ongress was rather sketchy in establishing

substantive requirements”). The Supreme Court has found that

“[c]ongress did not impose upon the States any greater substantive

educational standard than would be necessary” to make access to

public education “meaningful” and did not “guarantee any particular

level of education.” Id. at 192. Thus, when deciding whether the

District provided Jack with a FAPE, the court is limited to

ensuring that the District put in place the appropriate IEP as

required by the statute and that the District implemented it in

such a way as to be “meaningful.” 

////

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The requirements of a FAPE are that “such instruction and

services be provided at public expense and under public

supervision, [which] meet the State's educational standards,

approximate the grade levels used in the State's regular education,

and comport with the child's IEP.” Rowley, 458 U.S. at 188 (1982).

“If personalized instruction is being provided with sufficient

supportive services to permit the child to benefit from the

instruction, and the other items on the definitional checklist are

satisfied, the child is receiving a ‘free appropriate public

education’ as defined by the Act.” Id.

The Supreme Court has also concluded that the IEP must contain

the following: 

A written document containing ‘(A) a statement of the

present levels of educational performance of such child,

(B) a statement of annual goals, including short-term

instructional objectives, (C) a statement of the

specific educational services to be provided to such

child, and the extent to which such child will be able

to participate in regular educational programs, (D) the

projected date for initiation and anticipated duration

of such services, and (E) appropriate objective criteria

and evaluation procedures and schedules for determining,

on at least an annual basis, whether instructional

objectives are being achieved.’ 20 U.S.C. § 1401(19). 

Id. at 182.

While it appears that Ms. P is primarily contesting the

quality of education that Jack was given, she frames her response

as an objection to the manner in which Ms. Chargin (Jack’s

behavoralist) and Ms. Hedenland (his aide) kept track of the

progress that Jack was making and the manner in which they analyzed

their data to come to conclusions about his level of performance

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6 The plaintiff, and the Anaheim decision which they

reference (a hearing officer decision), cites 34 C.F.R. Pt. 300,

App. C., Question 39, but this section was actually removed from

the CFR in the 1998-1999. A similar discussion, however, appears

in the current Code of Federal Regulations at 34 C.F.R. Pt. 300,

App. A.

35

on the various goals and benchmarks that were set for him in his

IEP. 

The regulations adopted to help implement the IDEA require

that the IEP include “a statement of measurable annual goals,

including benchmarks or short term objectives” which address how

the child’s special educational needs will be met so that he can

engage in the regular curriculum. 34 C.F.R. Pt. 300.347(a)(2). 

The IEP must also include “a statement of how the child’s progress

towards the annual goals . . . will be measured and how the child’s

parents will be regularly informed” of “their child’s progress

towards the annual goals and the extent to which that progress is

sufficient to enable the child to achieve the goals by the end of

the year.” 34 C.F.R. Pt. 300.347(a)(7)(i-ii); see also 34 C.F.R.

Pt. 300, App. A.6 In order to meet the requirements of a FAPE, the

services must be “provided in conformity with the individualized

education program.” 20 U.S.C.A. § 1401(8)(D). The regulations

further specify that the District must “provide special education

and related services to a child with a disability in accordance

with the child’s IEP; and make a good effort to assist the child

to achieve the goals and objectives or benchmarks listed in the

////

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7 There is no requirement, however, that the District or any

other person be held accountable if the child does not achieve the

goals that are laid out. 34 C.F.R. Pt. 300.350(b). 

36

IEP.” 34 C.F.R. Pt. 300.350(a).7

Plaintiff does not appear to be challenging whether the IEP

included appropriate and sufficient short-term objectives or

benchmarks, but is alleging that the District failed to implement

these in a manner that would enable Ms. P (and presumably the

District itself) to monitor his progress towards meeting those

goals. It is clear from the statute that Congress intended the IEP

to provide a way for parents to track their child’s progress, it

does not, however, set out specific requirements as to how that

progress is to be monitored or provided. That is left up to the

IEP drafters. Under the “Reporting of Progress” section in the

December 2002 IEP, the box is checked which states that “Parent(s)

will be informed of the child’s progress toward annual goals and

short-term objectives/benchmarks on the general education gradereporting schedule used by the school of attendance.” AR at 3102.

Additionally, the “method(s) used to communicate progress to parent

will be . . . [through the] report card and IEP goals and

objectives/benchmarks page(s).” Id. 

It appears from the record that the District reviewed the

goals and benchmarks on one or two occasions following the

implementation of the IEP. The record contains a set of

goal/benchmark sheets which recite that the goals and objectives

were reviewed on March 26, 2003, though they do not contain any

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record of the actual progress in the boxes provided. AR at 3138-

3176. There is also a set that indicate they were reviewed on May

30, 2003 and these contain actual records of Jack’s progress on

that date. AR at 3177-3219 (this was the end of the quarter and

thus seems to have been the appropriate time to provide reporting).

The IEP team met a number of times during the semester and went

over Jack’s progress during the meetings. Plaintiff contends that

these reports were not fairly based upon the actual recorded data

found in the record, and that the data was not adequately kept. 

A review of the data and reports on Jack’s behavior and his

academic performance demonstrates that there are certainly some

areas where the data is unclear or where the analysis overall is

lacking. The record contains a number of “program check-lists”

which provide a list of the different academic areas that Jack was

to receive help with. AR at 7000-7016. There are fifteen

different programs and a box for each day of the week. Id. The

aide who ran the programs checked the boxes each day she ran them.

Every day a different number of programs would be run. It seems,

however, that some of the activities were conducted much more

frequently than others, for example, the “school rules” seem to

have been covered about 48 times, the who/what questions were done

about 22 times, while telling time seems to only have been covered

once. Id. The reporting in the May 20, 2003 IEP, however, shows

that Jack was “transitional” or made “substantial progress” towards

his short-term objective/benchmarks for telling time, which were

working towards the goal of being able to “identify time to the

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nearest half hour with 80% accuracy on 4 of 5 trials as measured

by student work samples.” AR at 3186 & 4085-86. The plaintiff

also points to numerous other asserted discrepancies such as that

“sound blends were interjected into the beginning/middle/end work

on individual words” and it appears that these trials may still

have been used in calculating his progress on the specific goal

relating only to beginning/middle/end words.

Beyond the academic goals is a list of areas where Jack had

behavioral problems. These do not show up as specific goals in the

IEP, but Ms. Chargin prepared a “Behavior Intervention Plan” for

Jack in February of 2003. AR at 4075-4089 (with what appears to

be an update on 5/25/03). Ms. Chargin provided a program

update on May 12, 2003 which addresses which behaviors have been

exhibited, and provides a description as to whether they have

ceased, decreased, etc. AR at 4089. This was presumably based

upon the Behavior Log which notes the behavior for each day and

records what was done to either reward or reprimand Jack in

response. AR at 7236-7295. 

The IEP does not provide a detailed discussion of the manner

in which the data will be taken or of how it will be analyzed. AR

at 3102. Since the IDEA only requires that the services must be

provided in accordance with the IEP, and the IEP was signed by Ms.

P, it is difficult to judge what should be required of the

District. The federal statute contains a rule of construction

which states that: “Nothing in this section shall be construed to

require--(I) that additional information be included in a child's

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IEP beyond what is explicitly required in this section.” 20 U.S.C.

§ 1414(d)(1)(A)(ii). The Hearing Officer found that the District

properly revised Jack’s behavioral program over the year as his

behaviors changed, and that the reports by Ms. Chargin and

Hendeland indicate that he was making progress. There is nothing

in the statute which holds the District accountable for the arrival

of new behaviors, there is only an expectation that the District

will properly respond to their arrival. It appears from the

revisions to the behavior plan and the occasional progress reports

that Ms. Chargin attempted to do that. See Chargin Reports,

February, April and May of 2003, at AR at 4075-4089. 

The Ninth Circuit has held that not every procedural violation

constitutes a finding that the child was denied a FAPE. Amanda J.,

267 F.3d at 892. Rather, these violations must rise to the level

that they “result in the loss of educational opportunity. . . or

seriously infringe the parent’s opportunity to participate in the

IEP formulation process.” Id. (internal quotations omitted).

Here, I conclude that the failure of the District to keep

meticulous records is a procedural violation that does not rise to

the required level. Plaintiff rightly points out that a failure

to keep good records could make it difficult to tell whether Jack

lost an educational opportunity, however, in this case the records

are sufficient to provide a decent picture of Jack’s performance.

It is clear that some of the goals were met, and it is also clear

that Jack made little to no progress on others. The record also

clearly demonstrates that Jack’s mother was heavily involved in the

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8 There is not detailed information in the record about what

occurred at these meetings, however, the court assumes that this

was their purpose. 

40

development of the IEP and participated in numerous meetings where

she was presumably informed of Jack’s behaviors and progress.8 She

took the time to carefully review what was proposed by the District

and participated in a series of meetings during the Spring of 2003

which discussed Jack’s progress. Accordingly, plaintiff’s motion

for summary judgment is denied and defendant’s cross-motion is

granted.

C. WAS AN ADEQUATE WRITTEN OFFER GIVEN FOR ESY FOR THE SUMMER OF

2003?

 The IEP dated May 20, 2003 provides that: “Jack will attend

AUSD summer school at Auburn Elementary June 23-July 19th. Jack

will also attend an extended summer school dates to be determined

up to an additional four weeks to maintain skills. Jack will not

have more than a two week break from services.” AR at 3219. The

front page of the IEP has the box for Extended School

Year/Intersession checked, but no explanation is provided. AR at

3177. The initial page also provides that the following Special

Education Services will be provided: Speech/Language three times

a week for 40 minutes, OT two times a week for 30 minutes,

behavioral 5 hours weekly, one-to-one direct instruction five times

weekly for 60 minutes, and that there will be a team meeting twice

a month for sixty minutes. AR at 3177. 

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Plaintiff argues that the District failed to make a formal

written offer of placement for special education services for Jack

for the summer of 2003. The IDEA requires that the District

provide “written prior notice to the parents of the child whenever

[it] – (A) proposes to initiate or change; or (B) refuses to

initiate or change the . . . educational placement of the child

. . . or the provision of free appropriate public education of the

child.” 20 U.S.C. § 1415(b)(3). The notice must contain the

following: 

(1) a description of the action proposed or refused by

the agency;

(2) an explanation of why the agency proposes or refuses

to take the action:

(3) a description of any other options that the agency

considered and the reasons why those options were

rejected;

(4) a description of each evaluation procedure, test,

record, or report the agency used as a basis for the

proposed or refused action;

(5) a description of any other factors that are relevant

to the agency's proposal or refusal;

(6) a statement that the parents of a child with a

disability have protection under the procedural

safeguards of this subchapter and, if this notice is not

an initial referral for evaluation, the means by which

a copy of a description of the procedural safeguards can

be obtained; and

(7) sources for parents to contact to obtain assistance

in understanding the provisions of this subchapter. 

20 U.S.C.A. § 1415(c)(1-7). 

In Union Sch. Dist. v. Smith, the Ninth Circuit reviewed to

what extent the District must follow through on this requirement

to provide a formal written offer. 15 F.3d 1519, 1526 (9th Cir.

1994). There, the District had discussions with the parents that

indicated that they were not willing to accept the placement offer

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that the District proposed, thus, the District considered it futile

to provide the offer. The court found, however, that the offer

should be provided even if the District is confident that the

parents will reject it, stating that: 

this formal requirement has an important purpose

that is not merely technical, and we therefore

believe it should be enforced rigorously. The

requirement of a formal, written offer creates a

clear record that will do much to eliminate

troublesome factual disputes many years later

about when placements were offered, what

placements were offered, and what additional

educational assistance was offered to supplement

a placement, if any. Furthermore, a formal,

specific offer from a school district will

greatly assist parents in presenting complaints

with respect to any matter relating to the . . .

educational placement of the child. Id.

The plaintiff challenges whether a Union offer was given on the

grounds that the District personnel were unsure of exactly what

would be provided during the ESY and extended ESY. Specifically,

plaintiff notes that the IEP does not set out the exact length of

the school day for either the ESY or the extended ESY. 

Additionally, they argue that although the IEP clearly provides

that there will be 60 minutes of one-to-one instruction five times

a week, none of the members of the IEP team were actually sure what

duration of service would be provided. There was conflicting

testimony by Ms. Chargin and Ms. Malin which indicated that Jack

might receive more one-to-one instruction. Ms. Malin stated that

the offer was for one hour a day, but that it might look a little

bit different during the extended ESY because there were not going

to be many other students at school during that period. Test. of

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C. Malin, at 177:1-8 of Dec. 11, 2003 RT. She said that it was

going to be up to Ms. Chargin to determine the exact amount of time

once they had determined the number of students, the teacher and

so on, and that they were prepared to do one-to-one for up to four

hours, “depending on what was going to be best for Jack.” Id. at

193:4-15; 180:17-27. It is clear from Ms. Malin’s testimony that

she was not entirely sure of the details of what would be provided

to Jack during the ESY and extended ESY, but that she was prepared

to offer, at a minimum, that which was indicated in the IEP. The

testimony of Ms. Chargin is similar in that she indicates that the

one-to-one time will be somewhere between two and three hours, and

that she was unsure of the exact length of the school day. Test.

of E. Chargin, at 36:1-4, 18-22, 37:3-1 of Dec. 11, 2003 RT. 

The court understands that there was some information that the

District would have had trouble providing at the time (for example,

they had not yet hired the teacher and were not sure of the number

of other students that would be enrolled in the summer program);

nonetheless, it appears there could have been more specifics

provided as to the exact terms of the time of day or the duration

of each of the types of instruction. That said, the IEP does lay

out a pretty basic offer and the District agrees that they were

ready to provide, at a minimum, that which was specifically

offered. As discussed in the previous section, the IDEA focuses

on procedure rather than substantive requirements, and thus there

does not seem to be a specific statutory duty that they provide the

exact times, the name of the teachers, etc. 

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9 Although it is not legally required, it is worth noting

that there is no record that the parent ever actually sought

clarification on the terms of the offer. Instead, it appears that

she rejected the Plan and did not try to work with the District

further to get the clarification she now says she needed. 

44

In the motion for summary judgment, the plaintiff focuses

exclusively on the fact that the District’s staff testified

differently about the amount of one-to-one instruction. Plaintiff

does not actually allege that the amount of services that were

offered in the IEP are inadequate. It is thus difficult for the

court to put much weight on the variations in testimony about what

the different District staff thought would be provided, since what

was offered in writing seems to have been at least minimally

adequate.9 The Act takes the procedure very seriously and the

Ninth Circuit has confirmed that this written requirement should

be taken seriously as well, but I cannot find that an offer was not

made because there was some background confusion, particularly

given that it does not appear that Ms. P believed that there would

have been an adverse effect on the quality of services provided to

Jack. See Rowley, 458 U.S. at 205-206 (1982) (“It seems to us no

exaggeration to say that Congress placed every bit as much emphasis

upon compliance with procedures giving parents and guardians a

large measure of participation at every stage of the administrative

process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement

of the resulting IEP against a substantive standard.”); Union, 15

F.3d at 1526; Amanda J., 267 F.3d at 882. (“Among the most

important procedural safeguards are those that protect the parents'

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10 I note in passing that: “To date, the Supreme Court has

not expressly determined whether a violation of the procedural

requirements of the IDEA is subject to harmless error review. That

issue was not properly before it in Rowley because the district

court had failed to rule on the respondents' contention that

petitioners had failed to comply with the IDEA's procedural

requirements.” M.L. v. Federal Way School Dist., 394 F.3d 634, 644

-645 (9th Cir. 2005); but see W.G. v. Board of Trustees of Target

Range School Dist., 960 F.2d 1479, 1484 (9th Cir. 1992)

(“Procedural flaws do not automatically require a finding of a

denial of a FAPE. However, procedural inadequacies that result in

the loss of educational opportunity, or seriously infringe the

parents' opportunity to participate in the IEP formulation process

clearly result in the denial of a FAPE.”)(internal citations

omitted). 

11 Initially, the District wanted to hire a different company

to provide the services, but plaintiff filed a request for a due

process hearing and agreed to participate in mediation. As part

of the mediation, the District consented to contract with Bridges

to train Jack’s instructional aide, Ms. Hedenland. 

45

right to be involved in the development of their child's

educational plan.”).10 

The Hearing Officer, who observed all of the testimony, found

that the offer was provided, concluding that “the fact that the

behaviorist might propose an increase in the amount of discrete

trial training, depending on Jack’s ability to participate in the

full-inclusion setting, does not render the District’s offer

unclear.” Pleadings and Correspondence at 26. The court agrees

with the Hearing Officer and thus denies plaintiff’s motion for

summary judgment on this claim and grants defendant’s cross-motion.

D. SHOULD THE COURT ORDER THE DISTRICT TO PAY BRIDGES?

At the plaintiff’s request, the District removed Ms. Chargin

from the role as Jack’s behavioralist and hired Bridges Behavioral

Language Systems. AR at 5017.11 The District contracted with

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12 Plaintiff’s brief appears to only challenge the provision

of the FAPE on the grounds that it was not “free” since Bridges is

purportedly now seeking payment from Ms. P. 

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Bridges to provide training to Jack’s aide, although there is

dispute as to whether this was a valid contract. See Test. of Ms.

Malin, at 193:1-197:1-28 of Dec. 11, 2003 RT).

Plaintiff claims that the District has not paid Bridges and

thus that Bridges is seeking payment from Ms. P. Plaintiff thus

asks the court to order the District to pay Bridges. However, the

court has not been provided with a copy of the contract, Bridges

is not a party to the dispute, nor does the court even know how

much Bridges is seeking from the District. Defendant argues that

this is a matter between them and Bridges and that it in no way

affects whether the District provided a FAPE to Jack.

The court finds that the matter of Bridge’s payment is not

properly before the court at this time as the correct parties have

not been joined nor has the appropriate information been provided

to enable the court to decide this matter. Plaintiff’s motion for

summary judgment is denied and defendant’s motion for summary

judgment is granted on the question of whether a FAPE was provided

for the start of the 2003-2004 school year.12

E. WAS THE ADMINISTRATIVE PLACEMENT OFFER A VALID UNION OFFER?

Upon the arrival of the Fall of 2003, the parties were once

again in the position of trying to decide how to provide the proper

service to Jack. Plaintiff had rejected the IEP for the ESY and

////

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13 It is worth noting that there is testimony in the record

that these long periods of time without instruction can be

detrimental to the development of autistic

children as it can cause them to regress in areas and to develop

new negative behaviors. 

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Jack was removed from the summer program altogether.13 At the

start of the new school year, the District planned to implement the

IEP that had last been signed by Ms. P in April of 2003. Test. of

C. Malin, at 117:3-18 of Dec. 9, 2003 RT. Ms. P asked the District

to not provide the OT and SLT until they were able to agree on an

appropriate pull-out time, thus preventing the District from

providing those services to Jack. AR at 5033-5036. 

On October 9, 2003, the parties met to perform an annual

review of Jack’s IEP. AR at 3220-3223. During this meeting a

dispute occurred over whether they would complete the IEP at the

meeting (which had run for three hours) or whether they would

exchange goals, etc. over e-mail and then meet again to final the

plan. Test. of C. Malin, at 144:19-26, 145:17-21 of the Dec. 9,

2003 RT; AR at 5051-5052 of District’s Exhibits. The parties

disagree on whether Ms. P was unable to attend further meetings or

whether she just did not want to continue in that manner. The

meeting ended without a resolution. 

The District’s lawyer sent a letter to the plaintiff’s lawyer

proposing three new meeting dates. AR at 5051-5052; Test. of C.

Malin, at 140:14-27 of the Dec. 11, 2003 RT. Ms. P. testified that

she did not receive the new IEP team meeting dates until the

weekend before the hearing and the dates fell on the date of the

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14 The regulations require that the District: (1) Notify the

parents of the meeting early enough to ensure that they will have

an opportunity to attend; and (2) Schedule the meeting at a

mutually agreed on time and place. 34 C.F.R. Pt. 300.345(a)(1-2).

It appears that Ms. P did not agree on the time of the later

meetings, but that may have been just because she was not planning

on attending at all. 

15 The regulations do not require that changes to the IEP be

consented to by the parent, but they are required to provide the

parents with notice and an opportunity to participate. 34 C.F.R.

Pt. 300.504(a-b). See Doe v. Alabama State Dept. of Educ., 915 F.2d

651, 660 (11th Cir. 1990).

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due process hearing she was pursuing. Dec. 3, 2003 RT at 43:8-9.

Plaintiff was withdrawn from school by Ms. P on October 20th. The

parties dispute whether Ms. P. informed the District that she would

be enrolling Jack in private services. The District responded by

drafting what they called an “Administrative Offer of Placement”

(“AOP”). AR at 3224-27. It states that it was designed to serve

as the formal Union offer of an IEP. It is disputed why the

parties could not come to agreement on an IEP and it is disputed

what the AOP actually offered. Plaintiff argues that the AOP is

invalid and not a written prior notice as required by Union and 20

U.S.C.A. § 1415(c)(1-7). 

In the preparation of an IEP, the regulations require the

District to go to great lengths to attempt to persuade the parent

to participate in the IEP meetings. 34 C.F.R. Pt. 300.345.14 If

the District is unable to convince the parent to attend, then they

may conduct the meeting without them but must provide the IEP and

other relevant information to the parent even though the parent

chooses not to participate.15 34 C.F.R. Pt. 300.345(d). Plaintiff

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16 The Hearing Officer found that the AOP constituted a

formal written offer of placement that “clearly sets forth the

identity of the behavioral consultant and the nature and the extent

of the services to be provided.” Hearing Officer decision at 33.

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alleges that she was not refusing to participate, but the record

appears otherwise. Ms. P did not agree to continue the IEP

meeting, she pulled Jack from school, and said she could not meet

any of the dates that the District proposed for continuation of the

meeting nor did she respond with dates that would better suit her

schedule. She also requested the due process hearing. 

There is no record that the IEP team did actually meet again,

but such a meeting seems like an exercise in futility in light of

the fact that Ms. P had already withdrawn Jack from school and

sought a due process hearing. It has been held that the failure

of the school to comply with all of the different steps mandated

in 34 C.F.R. Pt. 300.345 was not fatal if complying with those

steps seemed futile. Cordrey v. Euckert, 917 F.2d 1460, 1467 (6th

Cir. 1990). 

As noted above, the statute provides under what circumstances

an offer must be made and what it must contain. The proposed

Administrative Offer may not meet all the requirements of the

statute because it appears to lack items C, D, E and F.16

While the court is not satisfied that the AOP constituted a

valid notice as required by the statute, it cannot find that the

District failed to provide a FAPE for the 2003-2004 school year.

As noted, the record indicates that Ms. P pulled Jack from school

and did not respond to the District’s proposed dates for continued

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17 Keeping in mind that there also does not appear to be any

requirement for the District to have convened new IEP meetings in

the first place, as they are only required once a year and the

April 2003 IEP was still in place. 20 U.S.C. § 1414(d)(2)(a); 20

U.S.C.A. § 1414(d)(4).

18 As far as the court can tell, the April 2003 IEP remained

valid and in place. 

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IEP meetings. While the court understands that Ms. P may have been

frustrated with the slowness of the process, there does not appear

to be any legal requirement that the District complete the new IEP

in one meeting.17 Once Jack was pulled from school it would have

been futile for the school to have further continued with the IEP

drafting process. There was already an IEP in place from April of

2003 and the statute has a “stay-put” provision which requires that

the student “remain in the then-current educational placement of

such child” during the pendency of a due process proceeding. 20

U.S.C. § 1415(j). 

While Union requires that the District still formally offer

an appropriate educational placement even if the parent has

expressed unwillingness to accept that placement, it does not

impose a duty on the District to offer anything further if a valid

program is already in place. 15 F.3d at 1526.18 This court is

bound by the Ninth Circuit but is not required to extend Union’s

mandate that a new offer be given when a valid one is already in

place and the child in question has been pulled from school. Thus,

rather than viewing the AOP as a “retaliatory tactic” by the

defendant, it appears that this was a good-faith effort to put

something on the table for Ms. P to work with. The fact that the

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process of preparing an IEP was aborted due to the withdrawal of

Jack from school cannot be blamed upon the District. 

The court thus finds that the District did offer a FAPE to

Jack for the 2003-2004 school year and thus denies plaintiff’s

motion for summary judgment and grants summary judgment to

defendant. 

V.

CONCLUSION and ORDERS

For all the foregoing reasons, plaintiff’s motion for summary

judgment is DENIED on all claims and defendant’s motion for summary

judgment is GRANTED in all respects. The Clerk is directed to

CLOSE the case.

IT IS SO ORDERED. 

DATED: August 23, 2005

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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