FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNA HOOD; LYNN HOOD; RICHARD 

HOOD, No. 04-57007

Plaintiffs-Appellants, D.C. No.

v.  CV-03-00778-RTB

ENCINITAS UNION SCHOOL DISTRICT AMENDED

and DOES 1-10,* OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

November 17, 2006—Pasadena, California

Filed April 9, 2007

Amended May 11, 2007

Before: Cornelia G. Kennedy,** Cynthia Holcomb Hall, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Kennedy

*The complaint and notice of appeal list Does 1-10 as additional defendants in the case. However, the complaint does not identify harms committed by Does 1-10 with any specificity, the district court does not

include any individuals or any Does 1-10 in its case caption, and the briefs

before this court do not contain any reference to Does 1-10. Thus, the substance of this opinion pertains to the Hoods’ claims against the Encinitas

Union School District. 

** The Honorable Cornelia G. Kennedy, Senior Judge for the Sixth Circuit Court of Appeals, sitting by designation. 

5445
COUNSEL

Eric B. Freedus (briefed and argued), Frank and Freedus, A

P.C., San Diego, California, for the plaintiffs-appellants. 

Paul V. Carelli (briefed) and Jack M. Sleeth, Jr. (argued),

Stutz, Artiano, Shinoff & Holtz, A P.C., San Diego, California, for the defendant-appellee. 

5448 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
OPINION

KENNEDY, Senior Circuit Judge: 

Anna Hood and her parents (hereinafter “appellants” or

“the Hoods”) brought this claim alleging that the Encinitas

Union School District (hereinafter “appellee” or “the school

district”) violated the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. §§ 1400-1419 (2000), by refusing to

provide Anna with special education services. This claim

seeks reimbursement for private school education that the

Hoods obtained for Anna after withdrawing her from the public school system. A California special education hearing officer denied the Hoods relief, and the district court affirmed. 

On appeal, the Hoods offer two grounds under which Anna

should be categorized as a child with a disability per 20

U.S.C. § 1401(3) and is therefore entitled to special education. First, they assert that Anna has a “specific learning disability” because she exhibits a severe discrepancy between

her achievement and intellectual ability in one or more of the

academic areas enumerated in Cal. Educ. Code § 56337

(2002), as calculated per the formula provided in Cal. Code

Regs. tit. 5, § 3030(j)(4)(A) (2002), and the discrepancy cannot be corrected through other regular or categorical services

offered within the regular instructional program. Second, they

assert that Anna has “other health impairments” under 20

U.S.C. § 1401(3)(A) and Cal. Code Regs. tit. 5, § 3030(f).

The Hoods argue that Anna, by reason of either her “specific

learning disability” or her “other health impairments,” needs

special education and related services. They seek to obtain

reimbursement for the expenses they incurred for private

school education, which the Hoods commenced during

Anna’s fifth grade 2001-2002 school year following the

school district’s determination that Anna was ineligible for

special education, as well as recoupment of fees and costs

related to this action. 

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5449
After reviewing the evidence before the hearing officer and

additional evidence submitted to the district court, we find

that the district court’s acceptance of the hearing officer’s

determination that Anna was not legally entitled to receive

publically-funded special education was not in clear error. As

a result, we affirm. 

BACKGROUND

At the time the California special education hearing officer

issued a decision, Anna Hood was 10 years old and, according

to her report cards, was performing at grade-level appropriate/

average or above average levels in the public school classroom.1

While Anna’s second, third, fourth, and fifth grade reports

chronicle her consistent difficulties completing tasks, turning

in homework on time, and keeping her belongings organized,

Anna’s scores on the Stanford Achievement Test (SAT-9)

have placed her above the fiftieth percentile with near uniformity. 

Meanwhile, Anna’s performance on various intelligence

tests indicates high intellectual ability. Anna’s scores on the

Woodson-Johnson Test of Achievement-III, administered by

resource specialist Patricia Hotz, measured Anna’s achievement in eleven different areas, and in all but one area, Anna’s

scores were average or better. One (writing sample) was in

the “very superior” range, eight were in the “high average”

range, one (reading fluency) was in the “average” range, and

one (math fluency) was in the “low average” range. She

received a Wechsler Intelligence Scale for Children-III verbal

score of 127, performance score of 110, and full scale score

of 121, as reported by school psychologist Susan Jordan.

Anna’s consulting neuropsychologist Nancy Markel adminis1Anna did receive a “D+” academic score and an “S-” effort score in

spelling for her third term of the fourth grade, and her third grade report

card also indicates a “needs to improve” mark in cursive, but these

instances of low performance are anomalous. 

5450 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
tered the Comprehensive Test of Nonverbal Intelligence,

which produced a geometric I.Q. score of 136, a pictorial I.Q.

score of 121, and a nonverbal I.Q. score of 131. These scores

place her ability above average.

Anna has been the subject of a number of medical assessments. She was born following a difficult pregnancy and has

a significant medical history, which includes multiple ear

infections that required tube placement, as well as farsightedness and strabismus. In January 2001, Dr. Joseph

Gleeson, a pediatric neurologist, upon reviewing the results of

a previously administered electroencephalogram, interpreted

Anna’s condition as consistent with a possible seizure disorder and prescribed medication accordingly. His letter also

noted a significant family history of seizures. After examining

Anna, Dr. Gleeson suspected that Anna had the same condition as her older brother, though he expressed that it was “not

entirely clear” that Anna was having seizures. Dr. Gleeson

viewed such a seizure disorder as an explanation of Anna’s

apparent spells of distractibility and tendency to miss things

that had happened. 

After a subsequent visit with Anna in April 2001, Dr. Gleeson stated unequivocally that Anna “had an EEG that had significant abnormalities consistent with epilepsy” and observed

that Anna suffered from “increasing distractibility and difficulty staying on task that appeared to come in spells.” He recommended that Anna be evaluated for a possible attention

deficit disorder because of her reported difficulties staying on

task and her increased distractibility. Anna eventually began

taking medication for the attention problem.

Prompted by the receipt of Dr. Gleeson’s initial report, the

school district instituted an accommodation plan in accordance with Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, in February 2001.2 The plan included preferen2Appellants assert that “Anna was only able to achieve roughly average

grades” “[d]espite years of accommodations through a ‘504 Plan.’ ” HowHOOD v. ENCINITAS UNION SCHOOL DISTRICT 5451
tial seating in the classroom, use of a graphic organizer and

AlphaSmart keyboard, one-step directions, visual support for

instruction and concepts, frequent prompts and checks for

understanding, and daily teacher checks for homework assignments.

On May 15, 2001, Anna’s advocate, Sara Frampton, wrote

to the district to request a special education evaluation. In this

letter, Frampton acknowledged that “[Anna] ha[d] recently

been offered a 504 plan” but expressed her concern that the

plan had “not been based on a thorough assessment in all

areas of potential or suspected disability.” The district’s

psycho-educational assessment, performed by resource specialist Patricia Hotz and school psychologist Susan Jordan in

August and September 2001, included a battery of tests and

classroom observations. Jordan and Hotz ultimately issued a

report explicitly stating that “Anna has been diagnosed with

[a] Seizure Disorder . . . for which she takes medication” and

“[Anna’s] Seizure Disorder adversely affects her ability to

focus and pay attention in the regular classroom.” However,

Jordan and Hotz concluded that “[b]ased on State and Federal

guidelines, Anna does not qualify for Special Education services at this time, as she is performing at least in the average

range academically, both in the classroom and in one-on-one

testing.” Additionally, the report noted Anna’s eligibility for

a Section 504 accommodation plan to assist Anna’s functioning in the regular classroom and advised that the IEP team

consider all information when determining eligibility, class

placement, and goals for Anna. 

ever, February 12, 2001, marks the earliest documentation of a Section

504 plan contained within the record, indicating that the district only had

the benefit of eight months of experience with the Section 504 plan, interrupted by a summer break, prior to the Individualized Education Plan

(IEP) meeting, at which it denied Anna special education eligibility.

Appellants became convinced of the Section 504 plan’s insufficience and

removed Anna from school after the plan had been in place for only one

year and just two months after it had been modified at appellants’ request.

5452 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
On October 5, 2001, Jordan and Hotz convened with

Anna’s general education teacher, advocate, and mother for

an IEP meeting. The school district determined that Anna did

not qualify for special education services, specifically concluding that “Anna does not have a learning disability.”

In December 2001, the school district reevaluated the Section 504 plan in place and determined that it should be continued, changing it only to add an accommodation addressing

Anna’s mother’s concern about her daughter’s self-esteem.

Dissatisfied with the school district’s provision of services,

Anna’s parents withdrew their daughter from the school district in February 2002, enrolled her in The Winston School,

a private school for children with learning differences, and

appealed to the California Special Education Hearing Office,

seeking to recover the amounts expended for tuition and assessments.3

PROCEDURAL HISTORY

On February 25, 2003, a hearing commenced before an

officer of the California Special Education Hearing Office.

There, the officer placed the burden of proving compliance

with IDEA on the school district. Seattle Sch. Dist., No. 1 v.

B.S., 82 F.3d 1493, 1498 (9th Cir. 1996). After presiding over

four days of the presentation of oral and documentary evidence, the hearing officer was persuaded that Anna’s impairments did not necessitate special education or related services.

The officer determined that the school district did not violate

IDEA and denied reimbursement to Anna’s parents for their

child’s private placement. The hearing officer found that, in

general, the results of Anna’s testing did not reveal a discrepancy equal to or greater than 1.5 standard deviations, the regulatory measure of a discrepancy that is severe. See Cal. Code

3When Anna entered middle school in September 2003, she transitioned

from Encinitas Union to the San Dieguito Unified High School District,

where she was found to be eligible for special education. 

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5453
Regs. tit. 5, § 3030(j)(4)(A). While he did find that a particular math fluency score might support the finding of a severe

discrepancy, he dismissed the issue based on Section

3030(j)(4)(A)’s instructions that no single score or product of

scores shall be used as the sole criterion and that a discrepancy may only be considered a severe discrepancy when it is

corroborated by other assessment data. Ultimately, the hearing officer concluded that the totality of the evidence, including Anna’s work samples, scores from other tests, and

classroom observations, provided a reasonable basis for the

school district to determine that Anna’s specific learning disability did not require special education. The hearing officer

also found that Anna did not have any “other health impairments” to potentially qualify her for special education services under 20 U.S.C. § 1401(3)(A), concluding that Anna’s

evidence of seizure disorder or attention deficit disorder did

not bring her under the auspices of the statute. While the officer noted that Anna exhibited difficulty organizing and focusing on her work, he expressed that “[i]t was not clear from the

evidence whether Anna’s difficulties with attention and organization were due to the seizure disorder, an attention deficit

disorder, or something else.” Additionally, he felt he could

not conclude whether the seizure disorder and/or attention

deficit disorder “actually caused Anna to have limited

strength, vitality or alertness,” as required by regulation. See

Cal. Code Regs. tit. 5, § 3030(f). Based on these deficiencies,

the hearing officer determined that the district had met its burden of proving IDEA compliance because the evidence did

not establish that Anna met the eligibility criteria for possessing any “other health impairments,” and accordingly, he

denied relief. 

Pursuant to 20 U.S.C. § 1415(i)(2), the Hoods sought to

enforce their IDEA rights in federal court. The burden of

proof in the district court rested with the Hoods as the party

challenging the administrative decision. Clyde K. v. Puyallup

Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994), superseded by statute on other grounds, Individuals with Disabili5454 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
ties in Education Act, Pub. L. No. 105-17, 111 Stat. 37, as

recognized in M.L. v. Fed. Way Sch. Dist., 341 F.3d 1052,

1063 n.7 (9th Cir. 2003). The district court upheld the California Special Education Hearing Office’s decision that the

school district’s refusal to afford Anna special education did

not violate the law. The court based its decision on the conclusion that the Hoods had not shown that Anna’s discrepancy

“[could ]not be corrected through other regular or categorical

services offered within the regular instructional program,”

rejecting the Hoods’ argument that the hearing officer

employed the incorrect standard to determine whether the discrepancy could be corrected. See Cal. Educ. Code § 56337(c)

(2003). It found that the hearing officer explicitly cited Section 56337(c) and stated that he “was not convinced” that “the

discrepancies could not be corrected through the services

offered within the regular instruction program.” In deciding

the issue of the “specific learning disability” on those

grounds, the court refrained from determining whether Anna

exhibited a discrepancy between her ability and performance

that rose to the level of “severe” under the calculations prescribed in § 3030(j)(4)(A) and accepted appellee’s assertion

that Anna’s learning disability could be addressed with modifications to the regular classroom programming.

The district court also approved of the hearing officer’s

conclusion that the Hoods had not shown that Anna’s discrepancy, even if severe, was beyond correction in the normal

classroom. The district court emphasized that the language of

the statute necessitates measurement of the discrepancy

between ability and achievement over time, and thus an isolated assessment of the difference between Anna’s ability and

achievement could not suffice. 

The district court also rejected the argument that Anna

experienced some “other health impairment” that would qualify her for special education under 20 U.S.C. § 1401(3)(A). It

explained that the hearing officer’s conclusion that Anna was

not eligible under the “other health impairments” provision

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5455
was supported by record evidence and the testimony of witnesses.

STANDARD OF REVIEW

This court uses a clear error standard to review the district

court’s findings of fact even when they are based on the written record of administrative proceedings. Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). “A

finding of fact is clearly erroneous when the evidence in the

record supports the finding but the reviewing court is left with

a definite and firm conviction that a mistake has been committed.” Amanda J. v. Clark County Sch. Dist., 267 F.3d 877,

887 (9th Cir. 2001) (internal quotations omitted).

This court reviews questions of law and mixed questions of

fact and law de novo unless the mixed question is primarily

factual. Gregory K., 811 F.2d at 1310.4“Because Congress

intended states to have the primary responsibility of formulating each individual child’s education, this court must defer to

their ‘specialized knowledge and experience’ by giving ‘due

weight’ to the decisions of the states’ administrative bodies.”

Amanda J., 267 F.3d at 888 (quoting Bd. of Educ. v. Rowley,

458 U.S. 176, 206-08 (1982)). The “thorough and careful”

findings of a hearing officer are entitled to deference. Union

Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994). 

DISCUSSION

I. “Specific Learning Disability”

[1] Upon review of the record, hearing officer’s opinion,

and appellate briefs, we conclude that the district court did not

clearly err in determining that Anna was not legally entitled

4Although appellant argues for de novo review, the fact-intensive nature

of a special education eligibility determination coupled with considerations of judicial economy render a more deferential approach appropriate.

5456 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
to special education based on a “specific learning disability.”

IDEA provides qualified disabled children with access to a

free appropriate public education that includes an individualized education program tailored to the child’s unique needs.5

Section 1401(3) defines, in relevant part, a “child with a disability” to include a child “(i) with . . . other health impairments, or specific learning disabilities; and (ii) who, by reason

thereof, needs special education and related services.” Section

56337 of the California Education Code clarifies “specific

learning disability” as follows:6

A pupil shall be assessed as having a specific learning disability which makes him or her eligible for

special education and related services when it is

determined that all the following exist: 

(a) A severe discrepancy exists between the intellectual ability and achievements in one or more of the

following academic areas:

(1) Oral expression.

5

IDEA specifies that the term “specific learning disability . . . does not

include a learning problem that is primarily the result of visual, hearing,

or motor disabilities, of mental retardation, of emotional disturbance, or of

environmental, cultural, or economic disadvantage.” 20 U.S.C.

§ 1401(26)(2000) (to be re-codified at 20 U.S.C. § 1401(30)). 

6Subsequent to the hearing officer’s ruling, Congress passed a law,

effective July 1, 2005, stating that in determining whether a child has a

“specific learning disability,” a school district “shall not be required to

take into consideration whether a child has a severe discrepancy between

achievement and intellectual ability. . . .” Pub. L. No. 108-446,

§ 614(b)(6)(A), 118 Stat. 2647, 2706 (2004) (to be codified at 20 U.S.C.

§ 1414(b)(6)(A)). The California Education Code has also been revised to

mimic these changes. Cal. Educ. Code § 56337(b) (2006). However, as

there is no indication that retroactive application was intended, and the

district court applied the law as it was written prior to the amendment, we

do the same in the context of our review. 

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5457
(2) Learning comprehension.

(3) Written expression.

(4) Basic reading skills.

(5) Reading comprehension.

(6) Mathematics calculation.

(7) Mathematics reasoning. 

(b) The discrepancy is due to a disorder in one or

more of the basic psychological processes and is not

the result of environmental, cultural, or economic

disadvantages.

(c) The discrepancy cannot be corrected through

other regular or categorical services offered within

the regular instructional program. 

[2] Title 5, Section 3030(j)(4)(A) of the California Code of

Regulations provides the calculation relevant for determining

whether a discrepancy is severe: 

When standardized tests are considered to be valid

for a specific pupil, a severe discrepancy is demonstrated by: first, converting into common standard

scores, using a mean of 100 and standard deviation

of 15, the achievement test score and the ability test

score to be compared; second, computing the difference between these common standard scores; and

third, comparing this computed difference to the

standard criterion which is the product of 1.5 multiplied by the standard deviation of the distribution of

computed differences of students taking these

achievement and ability tests. A computed difference

which equals or exceeds the standard criterion,

5458 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
adjusted by one standard error of measurement, the

adjustment not to exceed 4 common standard score

points, indicates a severe discrepancy . . . .” 

However, Section 3030(j)(4)(A) avoids total reliance on a

mathematical calculation by immediately adding to the above

passage that the calculation indicates a severe discrepancy

only “when such discrepancy is corroborated by other assessment data which may include other tests, scales, instruments,

observations and work samples, as appropriate.” 

[3] The federal district court, the hearing officer, and the

school district itself each based its decision regarding the

severity of the discrepancy on factors other than the Section

3030 calculation. The district court expressly stated that

“[f]ortunately for this Court, this Court need not attempt to

assess the accuracy of either side’s § 3030(j) calculation . . .

because both sides ultimately focus on the last part of the

§ 56337 test[,]” that is, whether the discrepancy could be corrected in the general classroom. The hearing officer examined

the correctability issue and also looked to the need for corroborating evidence to support the raw mathematical data.

According to the hearing officer’s opinion, the school district’s denial of Anna’s eligibility for special education was

justified because “Anna’s overall performance, including

classroom achievement, grades and SAT-9 testing, not only

failed to provide the necessary corroboration, but also demonstrated that she did not require special education.”

The school district’s appellate brief takes issue with aspects

of the calculation, essentially arguing that the appellants oversimplified the regulation’s prescribed computation by failing

to consider the degree to which students’ scores generally differ between the ability and achievement tests employed, that

is, the success of the intelligence test at predicting actual performance. However, because the school district asserted

agreement at oral argument that Anna’s scores satisfied the

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5459
mathematical standard for a severe discrepancy, we will interpret their argument to concede this issue.

[4] We need not consider whether Anna satisfies the calculation. Our decision hinges upon appellants’ failure to satisfy

the second requirement of the “specific learning disability”

qualification for special education eligibility, that being

whether any existing severe discrepancy between ability and

achievement “[could] not be corrected through other regular

or categorical services offered within the regular instructional

program.” Cal. Educ. Code § 56337. Thus, even assuming the

existence of a severe discrepancy, the law does not entitle

Anna Hood to special education if we find that her discrepancy can be corrected in the regular classroom. 

The Hoods argue that the hearing officer employed the

wrong standard for assessing correctability and claim that the

district court “cherry-picked” language to justify a conclusion

that he applied the correct legal standard. On appeal, the

Hoods cite district court cases from other circuits to argue that

the ability to pass from grade to grade, or progress in the general curriculum, or exhibit average performance relative to

peers is not sufficient to render a child ineligible for IDEA

benefits. But these cases do not address California’s “correctability” prong and thus offer limited guidance regarding

whether a student’s severe discrepancy is correctable in the

regular classroom environment. Moreover, even the cases the

Hoods cite permit districts to consider a student’s relative performance as one factor in an eligibility inquiry. See, e.g., Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp.

2d 168, 176 (W.D.N.Y. 2000). However, the Hoods’ brief

offers no case law in support of the standard that it proposes

for judging correctability, that is, whether instruction offered

in the general classroom will narrow the mathematical discrepancy between the student’s own achievement and intellectual potential.

[5] Classic IDEA jurisprudence and administrative decisions prove useful when contemplating the standard appropri5460 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
ate to assess “correctability” and factors informative to the

determination of whether the standard is satisfied. For example, in Rowley, the paradigm IDEA case, the Supreme Court

determined that the state satisfies the requirement to provide

a handicapped child with a “free appropriate public education” by providing “personalized instruction with sufficient

support services to permit the child to benefit educationally

from that instruction.” Rowley, 458 U.S. at 203 (emphasis

added). While it is true that the Rowley case dealt with the

level of services that must be provided to a student already

deemed eligible for special education, rather than special education eligibility itself, “[the Ninth Circuit] ha[s] applied the

Rowley framework in numerous cases.” Van Duyn v. Baker

Sch. Dist. 5J, 481 F.3d 770, 776 (9th Cir. 2007). This court

has emphasized that “states are obligated to provide ‘a basic

floor of opportunity’ through a program ‘individually

designed to provide educational benefit to a handicapped

child,’ ” rather than “potential-maximizing” education. Ash v.

Lake Oswego Sch. Dist., No. 7J, 980 F.2d 585, 587 (9th Cir.

1991) (citing Gregory K., 811 F.2d at 314). The Supreme

Court explicitly stated in Rowley that IDEA does not contain

a requirement “that the services so provided be sufficient to

maximize each child’s potential commensurate with the

opportunity provided other children.” Rowley, 458 U.S. at 198

(internal quotations omitted). Just as courts look to the ability

of a disabled child to benefit from the services provided to

determine if that child is receiving an adequate special education, it is appropriate for courts to determine if a child classified as non-disabled is receiving adequate accommodations in

the general classroom—and thus is not entitled to special education services—using the benefit standard. Accordingly, the

district court used the correct standard of review when it considered the benefit Anna received in the regular classroom as

part of its eligibility analysis.

The Supreme Court in Rowley elaborated that “if the child

is being educated in the regular classrooms of the public education system, [an IEP] should be reasonably calculated to

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5461
enable the child to achieve passing marks and advance from

grade to grade.” Id. at 204. The Court was careful to provide

in a footnote that it did not intend to suggest that advancement

from grade to grade was always dispositive. Id. at 203 n.25.

However, in the case before it, the Court found “[the child]’s

academic progress, when considered with the special services

and professional consideration accorded by the . . . school

administrators, to be dispositive.” Id.

California Special Education Hearing Office opinions also

indicate the importance of grades and educators’ assessments

when determining whether a child with a severe discrepancy

between his ability and achievement is reaping some educational benefit in the general classroom. The hearing officer in

Student v. Sunnyvale Elementary School District examined as

evidence passing or average grades earned without the benefit

of special education and gave credence to the opinion the

resource specialist and school psychologist provided that any

weakness that the child exhibited could be corrected within

the regular education program. Student v. Sunnyvale Elementary Sch. Dist. (1998) SN 00-00092. Similarly, in Student v.

Long Beach Unified School District, the hearing officer considered the testimony of teachers and looked at the student’s

ability to continue maintaining grades sufficient to remain

enrolled in an accelerated program as indicative of his ability

to benefit from education in the regular classroom. Student v.

Long Beach Unified Sch. Dist. (1999) SN 00-00721.

[6] Application of this benefit standard to the facts presented in this case indicates that Anna does not qualify for special education due to a “specific learning disability” because

any existing severe discrepancy between ability and achievement appears correctable in the regular classroom. As the

hearing officer noted, “[i]t [is] virtually undisputed in this

case that Anna has been progressing in the general curriculum

along with her peers.” She received nearly uniformly average

or above average grades. At the hearing, Michelle Dennis,

Anna’s fourth grade teacher, testified that Anna was a highly

5462 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
proficient student. According to the hearing officer, Dennis

“was adamant that she would not have considered referring

Anna for special education because she was working at or

above grade level.” Sidney Sickels, Anna’s teacher for

approximately a month immediately preceding her withdrawal

from the school district, testified that Anna was capable of

producing work at grade level and that he did not believe that

Anna needed to be referred to special education. Dennis Rota,

Anna’s fifth grade science teacher, agreed. Dr. Beverly Barrett, director of pupil personnel services for the school district,

testified that the IEP team did not feel that Anna’s conditions

had a significant impact on her performance necessitating special education, as she was not performing below grade level.

According to this evidence, it appears that the hearing officer

was justified in concluding that Anna is receiving the requisite benefit from her education such that the school district is

in compliance with the law.

The school district acknowledges in its brief that “there will

always be some private school that can provide—perhaps at

great expense—an education that is better than the education

that can be provided by some other less expensive private

school, or perhaps the public school.” School districts must

function within budgetary constraints that are often quite burdensome. In essence, the Hoods assert that the law guarantees

a learning-disabled child of superior ability enough individualized attention and services—likely financed by the school’s

special education budget—to elicit optimum performance

from the child, when clearly no such requirement exists for

children without disabilities, gifted or not. As the school district points out, “[a]rguably, all children would perform better

with more services.” The Supreme Court has directed that

“we are not free ‘to substitute [our] own notions of sound

educational policy for those of the school authorities which

[we] review.’ ” Amanda J., 267 F.3d at 887 (quoting Rowley,

458 U.S. at 206).

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5463
[7] The school district asserts that the Section 504 accommodations plan was the appropriate way to meet Anna’s

needs. At the time when the Hoods withdrew Anna from the

school district, the record indicates that Anna had only been

in the general classroom with her Section 504 modification

plan for the latter portion of the fourth grade and the beginning portion of the fifth grade. Thus, it is difficult to judge its

success at meeting Anna’s unique needs.7 The Section 504

plan was directly tailored to address Anna’s weaknesses. In

her testimony before the hearing officer, Michelle Dennis,

Anna’s fourth grade teacher, acknowledged that Anna sometimes required additional guidance or extra time to complete

tasks. Similarly Sidney Sickels, Anna’s fifth grade teacher,

and Dennis Rota, Anna’s fifth grade science teacher, noted

that Anna had problems with missing assignments, completing work in a timely fashion, and organizing tasks. The hearing officer had sufficient reason to conclude that the

accommodations that the school district offered Anna via her

Section 504 plan, particularly the provisions for daily teacher

checks for homework assignments, one-step directions, and

use of a graphic organizer, would assist with Anna’s difficulties and allow her to excel in the regular classroom. It was

certainly not clear error for the district court to accept the

hearing officer’s judgment.

II. “Other Health Impairments” 

[8] In addition, we conclude that the district did not clearly

7The record does not support appellants’ assertion that Anna experienced “accommodations through a ‘504 Plan’ ” for “years.” The record

indicates the creation of a Section 504 plan in February 2001, and Frampton’s May 15, 2001 letter to the school district indicates her understanding

that “[Anna] ha[d] recently been offered a 504 plan” (emphasis added).

This would indicate that the Hoods withdrew Anna from her elementary

school, where she was exhibiting grade-level appropriate performance,

after approximately one year of schooling with modifications specifically

designed to meet her needs and about two months after the plan had been

modified at appellants’ request. 

5464 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
err in determining that Anna was not legally entitled to special

education based on an “other health impairment,” in the form

of a seizure disorder or attention deficit disorder. Section

1401(3)(A) of IDEA defines “child with a disability” to

include a student with “other health impairments” necessitating special education services. Section 3030(f) explains that

a pupil experiences such an impairment when she has “limited

strength, vitality or alertness, due to chronic or acute health

problems, including but not limited to . . . epilepsy . . . .” Cal.

Code Regs. tit. 5, § 3030(f). California Education Code

§ 56339 (2001) elaborates that an attention deficit disorder

can also constitute a chronic or acute health problem for the

purposes of Section 3030(f).

According to Cal. Educ. Code § 56339, in relevant part:

(a) A pupil whose educational performance is

adversely affected by a suspected or diagnosed attention deficit disorder or attention deficit hyperactivity

disorder and demonstrates a need for special education and related services by meeting eligibility

criteria specified in subdivision (f) . . . of Section

3030 of Title 5 of the California Code of Regulations

. . . for the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 and following) categor[y] of “other health impairments” . . . is entitled

to special education and related services.

(b) If a pupil with an attention deficit disorder or

attention deficit hyperactivity disorder is not found

to be eligible for special education and related services pursuant to subdivision (a), the pupil’s instructional program shall be provided in the regular

education program.

Additionally, as with all eligibility categories, the child’s

“other health impairment” must require instruction, services,

or both, which cannot be provided with modification of the

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5465
regular school program per California Education Code

§ 56026(b). The hearing officer found the evidence that Anna

had a seizure disorder and attention deficit disorder to be

inconclusive, and ultimately he concluded that “Anna did not

require special education to meet her educational needs[,]”

which “could be met with appropriate accommodations in the

regular education environment.” On appeal of the hearing

officer’s decision, the district court summarily accepted the

hearing officer’s findings and stated that, because “the evidence was inconclusive[,] . . . Anna did not meet the eligibility criteria specified in § 3030(f).” 

While the appendices do not appear to contain copies of

diagnoses for seizure or attention deficit disorders, other evidence indicates that Anna’s strength, vitality, or alertness had

a physiological explanation.8 However, neither the hearing

officer’s decision nor the district court’s holding was controlled by the decision that Anna did not suffer from an “other

health impairment.” Rather, the hearing officer rested his

decision that the school district did not need to provide special

education on the conclusion that “[Anna’s] needs could be

met with appropriate accommodations in the regular education environment.” Likewise, the district court seemed to base

its decision on the conclusion that any “other health impairment” that Anna did suffer from did not adversely affect her

performance to the extent that she required education outside

of the general classroom. In doing so, the district court

remarked that the hearing officer’s findings on the issue were

“carefully detailed [and] supported by the record evidence and

the testimony of hearing witnesses.” Similarly, we need not

determine whether Anna has an “other health impairment” in

the form of a seizure disorder or attention deficit disorder, as,

even assuming this to be true, we conclude that the law would

not entitle Anna to benefits because it was reasonable for the

hearing officer to conclude that any impairment can be

8

In the case of attention deficit disorder, Cal. Educ. Code § 56339 indicates that either a suspected or diagnosed disorder would suffice. 

5466 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
accommodated in the general classroom. The school district

determined that a Section 504 plan would be sufficient to

serve Anna’s special needs. To attempt to accommodate

Anna, in spite of her medical conditions, in the general classroom is consistent with the concept of mainstreaming, an

objective that the school district is legally bound to pursue.

See 20 U.S.C. § 1412(a)(5).9 Deference to the hearing officer

and the policy determination of the school district itself is

appropriate, and the district court did not clearly err in

upholding the hearing officer’s decision that Anna did not

qualify for special education due to an “other health impairment.”

CONCLUSION

For the reasons set forth above, the judgment of the court

below is AFFIRMED. 

9The Winston School is a non-public college preparatory school for

learning-disabled students. Because we deny reimbursement of the

school’s tuition, we need not decide whether placement in such a school

would constitute an education that comports with the 20 U.S.C.

§ 1412(a)(5), which requires that, “[t]o the maximum extent appropriate,

children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children

with disabilities from the regular educational environment occurs only

when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 

HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5467