BY AND THROUGH GOAN v. ALPINE UNION SCHOOL DISTRICT (2025)

ORDER: 1. GRANTING IN PART, DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 20); 2. GRANTING IN PART, DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 21)

The Individuals with Disabilities Education Act (“IDEA”) is a federal law crafted so that children with disabilities have access to a “free appropriate public education.” 20 U.S.C. §§ 1400, et seq. To this end, the IDEA establishes a comprehensive scheme for identifying children who may have disabilities, rigorously assessing them in all related areas, and then deploying a team of educators, along with the child's parents, to develop a program that supports the student in accessing this free appropriate public education. To comply with the IDEA, this team must meet at least annually, if not more frequently, to review the student's progress and create an individualized educational program (“IEP”)¹ with specific goals for the student for the upcoming year. Where it is required, a local educational agency must also offer summer school, or “extended school year,” as part of this program. Moving forward, the student must be reassessed at least once every three years. Failure to comply with the IDEA's procedural requirements regarding assessment and parental involvement in the development of the IEP may deny a student a free appropriate public education and therefore violate the IDEA.

Plaintiff D.G. (“Plaintiff,” “D.G.,” or “Student”) is a young child diagnosed with cerebral palsy and a speech or language impairment. (AR 965.) Under the IDEA, her parents (“Parents”) sought to have her educated within the Alpine School District (“Alpine,” “District,” or “Defendant”). When D.G. transitioned from kindergarten to first grade, Alpine placed her at Shadow Hills Elementary (“Shadow Hills”). There, D.G. attended first grade (the 2021–2022 school year), two days of the June 2022 extended school year, and nearly three months of second grade (the 2022–2023 school year) before Parents withdrew her from Shadow Hills and enrolled her at a nonpublic school, Sierra School (“Sierra”) in early November 2022. Parents sought reimbursement from District for Sierra tuition and District refused. A few months later, in the May 2023 IEP, District refused to offer placement at Sierra. (AR 1198.) Then, in June 2023 Plaintiff filed a due process complaint and initiated this case. (AR 1.) After an eight-day hearing before an Administrative Law Judge (“ALJ”) in September 2023, which resulted in the ALJ finding for Defendant on nearly every issue, Plaintiff has appealed the ALJ's decision to this court. (ECF No. 1.)

This case principally confronts the legitimacy of a niche legal practice: how ALJs at the Office of Administrative Hearings revise IDEA plaintiffs' issues prior to hearing. Plaintiff claims that the ALJ who conducted the hearing on her due process complaint so revised her issues that Plaintiff was barred from fully litigating her case. Accordingly, Plaintiff seeks vacature and remand of most of her appealed issues on the grounds they were prejudicially rephrased. Plaintiff also seeks reversal of the ALJ's decision on two issues that primarily confront the question of whether District should have assessed for and/or provided a one-to-one aide to D.G. as part of her IEP.

Plaintiff and Defendant now each move for summary judgment, (ECF Nos. 20, 21), and, having had the benefit of oral argument on August 12, 2025, (ECF No. 41), the Court finds the Motions suitable for determination. For the reasons stated below, each Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The issues on which Plaintiff prevails are VACATED and REMANDED to the ALJ.

BACKGROUND

I. The IDEA

The IDEA is a federal law that works by tying federal funding for educating children with disabilities to a list of statutory conditions. Critical among them: provision of a free appropriate education, or “FAPE,” to all eligible children. 20 U.S.C. § 1412(a)(1). To guarantee a child a FAPE, the IDEA requires students be assessed in “all areas of suspected disability” and then have a team consisting of educators and the child's parents create an IEP to address any identified disability. Id. §§ 1414(b)(2)(A)(ii), 1414(b)(3)(B).

These initial “assessments” are tests that use a variety of methods and tools to gauge the child's cognitive, functional, and behavioral abilities, and identify whether the child has a qualifying disability under the IDEA. Id. §§ 1414(a)(1), (b)(2)–(3). A child found to have a qualifying disability under these assessments must be reevaluated at least once every three years. Alternatively, they may be reevaluated whenever the student's parent or teacher requests it, or if the district determines it is required. Id. § 1414(a)(2)(B)(ii).

If a child qualifies for special education, the district must construct an IEP. The contents of the IEP are mandated by statute and include such things as measurable “academic and functional goals,” methodologies for measuring the child's progress toward the annual goals laid out in the report, the child's strengths, the supplementary aids and related services to be provided to the child, as well as what program modifications or supports for school personnel will be provided for the child. Id. §§ 1414(d)(1)(A)(i), 1414(d)(3). This plan may include extended school year services (“ESY”), which is essentially summer school, if the student is at risk of significantly regressing over the summer break.

These IEPs may only be evaluated by the courts in the context of the information available to the meeting participants at the time the meeting was held. Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1187 (9th Cir. 2016). Later-learned information may not be used to determine if the IEP substantively violated the IDEA.

To ensure the IEP is as effective as it can be, the IDEA employs rigorous procedural rules. If these procedures are violated, that violation alone may be enough to constitute denial of a free appropriate public education to a student. These procedural rules govern the processes by which school districts must (1) identify children with suspected disabilities, (2) conduct assessments (tests designed to evaluate children's disabilities), (3) evaluate their eligibility for special education, (4) confer with parents, (5) design IEPs, and (5) resolve disputes. 34 C.F.R. §§ 300.111, 300.304, 300.320, 300.322, 300.504, 300.510. To ensure that the child's interests are served throughout this process, the IDEA also establishes certain protections for parents such as the right to participate in IEP meetings and review educational records. 20 U.S.C. § 1415(d)(1). Parental participation and setting appropriate goals are central to these IEPs so that the student may make progress “appropriate in light of her circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). Accordingly, Alpine District must follow the IDEA's procedural requirements and standards, as these serve to ensure that every child with disabilities has “meaningful access” to education. Cedar Rapids Cmty. Sch. Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999). If a student's parents believe that the District has failed to meet the substantive or procedural requirements of the IDEA, they have the right to file a due process complaint against the District before the California Office of Administrative Hearings (“OAH”). 34 C.F.R. § 300.508; Cal. Educ. Code § 56501.

The statute of limitations for an IDEA complaint is two years, 20 U.S.C. §§ 1415(b)(6)(B), (f)(3)(D), and the IDEA does not recognize a “continuing violation” exception to this rule, E.F. v. Newport Mesa Unified Sch. Dist., No. SACV 14-00455-CJC(RNBx), 2015 WL 3867982, at *8 n.6 (C.D. Cal. June 23, 2015), aff'd, 684 F. App'x 629 (9th Cir. 2017), cert. granted, judgment vacated sub nom. E.F. ex rel. Fulsang v. Newport Mesa Unified Sch. Dist., 583 U.S. 801, 138 S.Ct. 169, 199 L.Ed.2d 1 (2017), and aff'd sub nom. E.F. by & through Fulsang v. Newport Mesa Unified Sch. Dist., 726 F. App'x 535 (9th Cir. 2018).

A school district may violate the IDEA in two different ways. “First, a school district, in creating and implementing the IEP, can run afoul of the Act's procedural requirements.” J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 432 (E.D. Cal. 2010), aff'g and adopting by reference, 611 F. Supp. 2d 1097 (E.D. Cal. 2009) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). “Second, a school district can be liable for a substantive violation by drafting an IEP that is not reasonably calculated to enable the child to receive educational benefits.” J.W. ex rel. J.E.W., 626 F.3d at 432 (citing Rowley, 458 U.S. at 206, 102 S.Ct. 3034 (1982)); see also Endrew F., 580 U.S. at 399, 137 S.Ct. 988 (“[T]he question is whether the IEP is reasonable, not whether the court regards it as ideal.”).

II. Factual Background

D.G. is a small child and was diagnosed with cerebral palsy at an early age. Her condition, caused by a number of strokes that occurred when she was a baby, means she has very little to no use of the left side of her body. This condition means she cannot do things both big and small. She cannot, for instance, use her left hand to brace herself if she falls. She cannot use her left hand to anchor her paper as she writes with her right. Further, her left leg catches easily on things as she is moving around and causes falls. She also has a speech issue (the severity of which varies depending on whom you ask) and cannot say her “Rs.” The parties agree D.G.'s speech issue and orthopedic impairment each qualify D.G. for special education under the IDEA.² They also agree that D.G. has exhibited developmental delays in all areas of development during the time period at issue in this case.

The issues precipitating this dispute began when D.G. transitioned from kindergarten to first grade. D.G. entered first grade in the fall of 2021, attending a public school in Alpine District called Shadow Hills Elementary. D.G. attended Shadow Hills for the entirety of her first-grade year (2021–2022). She then entered second grade in fall of 2022 at Shadow Hills until her parents withdrew her in November 2022 and enrolled her at a nonpublic school, Sierra School, where D.G. remained through the May 2023 IEP meeting. Alpine never agreed to disenrolling D.G. from Shadow Hills, or to enrolling D.G. at Sierra School.

A. Kindergarten: 2020–2021

1. January 2021 IEP

Plaintiff filed her initial due process complaint on June 14, 2023, meaning any claim regarding something occurring prior to June 14, 2021, was time-barred by the statute of limitations.³ Until March 2022, though, the January 2021 IEP was the operative IEP. So, for the majority of the 2021–2022 school year, an IEP that fell outside of the statute of limitations period directed Student's educational placement.

The contents of this IEP (see AR 865–90), created while D.G. was in kindergarten, are summarized in the parties' Joint Statement of Undisputed Material Facts (ECF No. 22). The January 2021 IEP provided for occupational therapy, speech therapy, and specialized academic instruction. (Id. at 3.) D.G. spent about half of the school day in general education and the remainder of the day in a separate special education classroom. (Id. at 6.)

In this IEP, Parent noted that D.G. is a strong advocate for herself, that she is very social, that Parent was concerned D.G. was not getting enough support for two-handed tasks, and that D.G. was falling behind academically. (Id. at 3.)

2. Spring 2021 Assessments.

While in kindergarten and as part of her upcoming transition to first grade, District assessed D.G. in a number of areas with Parents' consent during the spring of 2021 to determine whether D.G. had “any additional handicapping conditions.” (AR 559.) Parents signed off on this March 2021 assessment plan. (AR 558.) In the conducted assessments, D.G. was evaluated for academic achievement, health, intellectual development, language/speech communication development, motor development, social emotional/behavior, and “Other,” which specified that a school psychologist “SAI, SLP, OT” would conduct a “Review of Records, Observations, Parent/Teacher Interview & Questionnaires, Attention measures, Auditory/Visual Processing Measures, Visual Motor Integration; Speech.” (AR 560.)

Based on these assessments, the IEP team reconvened in May 2021 and came up with an IEP for the 2021–2022 school year that increased the amount of time D.G. would spend in a special education classroom. (AR 927–28.) However, D.G.'s parents did not agree to the District's offer of FAPE. (ECF No. 22 at 6.) Later, Parents consented to the District's offer of extended school year services only. (Id.) Therefore, the operative IEP for the 2021–2022 school year was Student's January 2021 IEP, the last IEP Parents consented to.

B. First Grade: The 2021–2022 School Year

D.G. began at Shadow Hills in the fall of 2021 for her first-grade year. In this school year, D.G.'s special education teacher was Jeff Beyoghlow (frequently referred to in the record as “Mr. Jeff”) and her general education teacher was Brianna Watson.

D.G. received her occupational therapy as well as her speech and language therapy during her special education time either one-to-one or in small groups. Her specialized academic instruction took place in a small group class with other students with “mild to moderate” disabilities. During the 2021–2022 school year, this class had approximately ten students in it, one special education teacher (Mr. Beyoghlow), and two aides. D.G. also spent a few hours a week in the general education classroom. The general education classroom had one general education teacher (Ms. Watson) and no aides in it.

A former aide for the special education classroom, Maribel Valdez, testified at the hearing that this classroom was terrible. She accused Mr. Beyoghlow of verbally and physically abusing students and throwing them out of the classroom. (AR 2248.) She also claimed that the students in the class had a lot of behavioral problems (“tantrum behaviors, throwing items, kicking, hitting, screaming, crying. What else? And just eloping from the classroom.”). (AR 2246, 2253.) The ALJ's decision gave this testimony no credit because Ms. Valdez was terminated before the end of the year and appeared to initially lie about the circumstances of it. (AR 2253–54, 2266–68.) Further, her testimony about Mr. Beyoghlow's conduct conflicted with the testimony of every other witness (AR 1329).

Father testified that during this time D.G. was refusing to go to school and to get her to go they would “almost have to bribe her.” (AR 2764.) He testified that D.G. would say that some of the kids were not fair or nice to her. (AR 2763–64.)

On June 1, 2022, Father sent District an email that D.G. was intentionally tripped by another student, fell to the ground and hit her back and head. He informed District that this was not the first such occurrence and that D.G. told Parents that the same student had previously “taken the swing from her, physically pulled [D.G.] off the swing, closed [a] classroom door on [D.G.'s] fingers to prevent [D.G.] from coming into the classroom, yelled at her, and called her names.” (AR 1024.) He noted that D.G. was “showing signs of not wanting to go to school because of the bullying.” (Id.) In his email, Father also noted that D.G. wet herself at school that day after asking to go to the bathroom but was told “to wait until after the instruction was completed which resulted in an accident.” (Id.)

1. November 2021 Dr. Gray Evaluation

In or about November 2021, D.G.'s parents obtained a neuropsychological evaluation of D.G. by Dr. Robert Gray, a licensed psychologist, board-certified clinical neuropsychologist, and subspecialist in pediatric neuropsychology. (ECF No. 22 at 6.)⁴

Dr. Gray made a variety of recommendations in his report, and the relevant ones are as follows. He noted that D.G. would require “individualized intervention to maintain and continue to progress that may often be at a slow or sporadic rate.” (AR 592.) He recommended core instruction be “provided in a one-to-one or small group instruction setting;” separately, D.G. needed a one-to-one aide for “her significant difficulties with self-care (i.e., toileting), language, attention, behavioral regulation, navigation, and ongoing safety risk.” (AR 592–93.) This aide would not be a teacher but would assist D.G. by maintaining a safe environment for her as well as helping to “implement language, motor, behavioral, and self-care goals and prompt her to utilize appropriate compensatory skills and strategies.” (Id.) Dr. Gray's report also shared “a recent incident noted by [D.G.'s] mother during which she was reportedly pushed by some boys on the playground and injured her knees with subsequent resistance to attending school for a few days.” (AR 595.) Finally, Dr. Gray recommended an assistive technology evaluation and an adaptive physical education assessment. (AR 594.)

2. March 2022 IEP Meeting

Testimony at the hearing conflicted as to when District received Dr. Gray's report, but the very latest District could have notice of the report was at the March 2022 IEP meeting. Dr. Gray presented his report at this meeting and indicated in an email afterward that he believed the District staff present were considering his recommendations. (AR 1256.)

The District did not offer a one-to-one aide in this IEP meeting. The District's offer of FAPE in the March 2022 IEP had D.G. spending 13% of her school day in the general education classroom and 87% in the special education classroom. (AR 986.) She would additionally receive some amount of time per year in small group speech services and in small group occupational therapy services. (AR 984.) The offer did not include an Assistive Technology, Adaptive Physical Education, or Special Circumstances Instructional Assistance (“SCIA”) Assessment. Further, District did not offer to provide D.G. with a one-to-one aide. (ECF No. 22 at 7.) However, it did note that D.G.,

requires access to specialized/adapted equipment (e.g., slant board; adaptive scissors; specialized writing implements, e.g., “Rocket Pencil”; grab rails she can access with her right hand installed in bathrooms) and materials, as identified, to access her educational environment and program, and to meet educational goals. Consultation services to personnel by the Orthopedic Impairment Teacher will be provided.

(Id.) At this IEP, District noted that D.G. had only met four out of eleven goals from the prior IEP. (Compl. ¶ 17; AR 986.)

Narratively, the March 2022 IEP paints the picture of a student who struggles with the academic side of school but enjoys physical activity and socializing with other students. The IEP notes that D.G. does well in small group settings and can attend to small group instruction with reminders from the teacher to stay on task. She can engage in class activity and follow routine directions as well as classroom procedures. She is largely independent in the classroom except where she needs to use both hands. In those cases, D.G. can advocate assistance from a classmate or teacher. She can feed herself, drink from a cup, and clean up after herself. Although she can use the bathroom on her own, she sometimes needs help adjusting her clothes. D.G. is very social, popular and makes friends easily. She is athletic and plays ball with older kids. She walks independently throughout her educational environment and participates in general physical education with her peers. (ECF No. 22 at 8–9.)

Under parent comments, the IEP notes Mother has concerns “with another student in class that is having issues with [D.G.]” and that Mother is rethinking mainstreaming D.G. in the general education classroom due to D.G.'s academic needs; she is concerned one of D.G.'s modifications, the slant board, is not being used in the classroom. (AR 987) At the hearing, Mother testified that District told her they would investigate the alleged bullying, but Mother did not receive any follow-up. (AR 2643.) The IEP meeting notes do not state that Mother requested a one-to-one aide in this meeting, but Plaintiff states that she did make such a request. This is supported by Ms. Watson's testimony that Mother made such a request, (AR 2307, 2311), and Yvette Maier's testimony that they did not discuss an SCIA assessment in the meeting but “discussed a special ed one-to-one aide,” (AR 2017). No one testified at the hearing that Mother did not make such a request. Mother also sent a follow-up email after the meeting indicating she made such a request. The email reads as follows:

Good afternoon,

I had a question about the IEP. Could you explain to me what you meant when you were talking about the one on one aide when you said [D.G.] is only getting 50% of her services so it would be hard to know if she required an aide and that there would need to be some assessments done before determining if that was needed or no. It's confusing. Als [sic] could I please have a copy of all the notes taken at the IEP meeting? [Mother]

(AR 992.)

District personnel responded that Student would not receive a one-to-one aide until after District conducted an SCIA assessment and that such an assessment would not be conducted unless and until all other measures failed. (Id.) Ultimately, Parents consented to the March 2022 IEP. (ECF No. 22 at 9.)

3. Extended School Year 2022

That summer, D.G. attended two days of ESY. (ECF No. 22 at 9.) Parent reported that on the morning of the second day of ESY Student was “melting down and I could barely get her out the door and she missed the bus.” (AR 600.) Parent reported that D.G. had come home the previous day having fallen on the playground and required ice, but that no one had contacted Parent about it. (Id.)

Parent also expressed concerns about D.G.'s ESY classroom. She conveyed to District that after the first day she heard from D.G. that the class had a lot of free time and that a classmate was really loud, making it difficult for D.G. to work. (Id.) Parent expressed dissatisfaction that D.G., who was typically in a “mild moderate” classroom, was in a classroom with both “mild moderate” and “moderate severe” students. In response, Ms. Maier stated that ESY is always a mix of grade levels and students. As an alternative, Ms. Maier offered to have D.G. work on her assignments in an adjoining room with an aide. (Id.)

C. Second Grade: The 2022–2023 School Year

D.G. started second grade in August 2022, attending Shadow Hills Elementary in conformance with her March 2022 IEP. After escalating instances of D.G. being injured or harassed by other students at Shadow Hills, and instances of D.G. struggling to use the bathroom properly, leading to increasing occasions of D.G. refusing to go to school, her parents withdrew her from Shadow Hills and enrolled her in Sierra School, a nonpublic school, in early November 2022. At Sierra School, Parents stopped reporting that D.G. refused to go to school and neither party introduced any evidence that D.G. suffered further harm.

1. August 2022–November 2022: Shadow Hills

At Shadow Hills, D.G. got all her academic education in her special education class and only spent a small amount of time in a general education class for socialization. Her special education teacher was Cora Long and her general education teacher was Lisa Stone. The record establishes that during this time at Shadow Hills, D.G. struggled.

Between August 18, 2022, and October 4, 2022, a period of six weeks, D.G.'s parents sent at least six communications to the District about D.G.'s anxiety, behavior issues, toileting problems, and safety incidents that had occurred between D.G. and other students. (ECF No. 22 at 9.)

On August 19, 2022, Mother emailed D.G.'s special education teacher, Ms. Long, to say that a boy in D.G.'s classroom had grabbed D.G. by the arm and pushed her to the ground, pretending to punch her in the face with his fist. (AR 602–03.) Mother expressed concern over this given D.G.'s physical disability: “[D.G.] has balance issues so if she gets knocked off balance she can go flying to the ground. With her having no way to put her left hand out and brace for a fall we have been to the ER many times for broken bones, fractures and sprains.” (AR 603.) Ms. Long responded saying she had not seen the incident but that she would keep her eye on things moving forward. (AR 602.) Mother also relayed that D.G. did not want to go to school that day. (AR 603)

On August 23, 2022, Mother emailed Ms. Long again, saying that D.G. was having meltdowns and a lot of anxiety about school, saying she did not want to go. (AR 602.) Mother also relayed that D.G. came home from the first day of school wearing just her shorts instead of the shorts and skirt she had left home wearing. D.G. said that she had pulled down the skirt to go to the bathroom but could not get it back on. (AR 602.)

On August 25, 2022, Mother sent another email to Ms. Long, informing her that D.G. had wet her pants that day. (AR 786.) Ms. Long replied that D.G. told her that she had been on her way to the bathroom but did not make it in time. (Id.)

On August 31, 2022, Ms. Long emailed Mother with an update that she is checking D.G. after almost every bathroom trip and there have been no more accidents or clothing issues. (AR 785.)

On September 6, 2022, Mother emailed Ms. Long to share that when D.G. came home from school that day she had had a bowel movement in her underwear and D.G. had said she was too embarrassed to tell anyone. (AR 782–83.) Ms. Long responded, hypothesizing that it must have happened on the bus because Ms. Long smelled nothing when she had been close to D.G. just before the end of the school day. (AR 782.) She also shared that D.G. proactively informed her that she would need help with her skirt and the bathroom that day. (Id.)

On September 14, 2022, Mother sent another email to Ms. Long describing D.G. coming home with band-aids on her knees the week prior and that D.G. had informed her that “she was running with a boy and she said he tripped her on purpose, when she fell down he started mocking her. [D.G.] said staff told the boy to stop and that it was not funny.” (AR 781.) Mother also shared that the boy who did it was known to them, older, and that they “had similar problems with him in the past.” (Id.) Mother expressed concern that “it could become a regular occurrence.” (Id.)

On October 3, 2022, D.G.'s mother emailed Ms. Long again with more stories of incidents of harassment. She heard from D.G. that kids on the bus “have been making fun of her” and D.G. asked what the word “retarded” meant. (AR 617.) Mother also informed Ms. Long of an alleged incident where a boy in D.G.'s classroom “told her to lay down on the ground she said her [sic] grabbed her feet and started dragging her across the carpet.” (AR 617.) The email included photos of the rugburn on D.G.'s back. Ms. Long responded on the same day that she spoke with the principal, Meghan Meris,⁵ and that Ms. Meris informed her the incident had already been investigated and handled. (AR 616.) No such report of an investigation was produced for the hearing.

The District offered another explanation for the origins of the rugburn on D.G.'s back. At the hearing, Ms. Maier testified that Ms. Meris told her that D.G. and another child were playing “dogcatcher” and D.G. was the dogcatcher while the other child was the dog. (AR 2042.) Ms. Maier had no direct knowledge of the incident, though, beyond what she heard from Ms. Meris, who did not testify at the hearing. An email regarding the incident from Ms. Meris to Mother does not state what the students were doing but apologizes and states that she “notified the other student's family, and communicated the appropriate consequences.” (AR 622.) Ms. Meris also asked about Mother's availability for an IEP meeting in mid-October. (Id.)

On November 2, 2022, D.G.'s parents announced to District via email that they were withdrawing D.G. from Shadow Hills and placing her at Sierra School, a nonpublic school. (ECF No. 22 at 10.) D.G. started at Sierra School on November 3, 2022, and stayed there for the remainder of the school year. (Id.) District did not agree to fund D.G.'s placement at or reimburse Parents for Sierra School. (Id.)

In spring 2023 a behavioral analyst, Crystal Ruse, observed Ms. Long's classroom over three days as she conducted a functional behavioral assessment of another student. (AR 712–31.) At this point, D.G. was no longer in Ms. Long's class and was at Sierra School. Nonetheless, the ALJ heard Ms. Ruse's testimony that Ms. Long's classroom was disruptive, louder than expected, and that Ms. Long lacked instructional control. (AR 2513.)

2. November 2022–May 2023: Sierra School

After enrolling D.G. at Sierra School, it appears D.G. had very little contact with District staff apart from several staff coming to observe and evaluate D.G. ahead of the spring 2023 IEP meetings. Initially, Parents consented to District staff coming to Sierra School. (AR 2575.) However, Parents withdrew their consent when they learned District staff had pulled D.G. from class for approximately 30 minutes per person (two staff did this) and had tested her and asked her how she liked Sierra School. (AR 2978.) Mother testified that she changed the consent form to “specifically say observation only,” (id.), but her email to Sierra School indicates she revoked her consent for Alpine staff to either observe or evaluate D.G., (AR 1290). Accordingly, District did not have complete notes on D.G. ahead of its March and May 2023 IEP meetings regarding D.G.'s progress.

Father testified that with attendance at Sierra School, Student's behavior improved and that “she then wanted to start going to school,” and was interested in picking out words when reading at story time each night. (AR 2764–65.) D.G. was generally no longer upset. (AR 2765.)

3. March/May 2023 IEPs

An IEP amendment team meeting was held on March 9, 2023, when D.G. was attending Sierra School, to review an independent speech and language evaluation. (AR 1162.) This evaluation was conducted by Christy Himstreet, a licensed speech and language pathologist. (AR 749–51.) The team also held the March 2023 IEP to schedule the annual IEP review.⁶ No changes to D.G.'s IEP were made at that time. (ECF No. 22 at 10.)

An IEP meeting was held on May 18, 2023, to review D.G.'s annual IEP. At this time, D.G. had been attending Sierra School for approximately six months. (ECF No. 22 at 10.) At this May 2023 IEP meeting District offered D.G. placement at Shadow Hills, spending 70%⁷ of her school day in the special education classroom and 30% in the general education classroom in addition to the same number of minutes per year in small group speech sessions as were offered in the March 2022 IEP. (Id. at 6, 10.) The District also offered ESY services. A month later, Plaintiff initiated this case.

III. Procedural Background

Plaintiff initiated this case before the Office of Administrative Hearings by filing a Due Process Complaint on June 14, 2023. (AR 1.) After an ALJ deemed the Due Process Complaint to be insufficient in part (AR 85), Plaintiff filed an Amended Due Process Complaint (AR 95), which the ALJ then deemed to be sufficient (AR 178).

D.G.'s claims on appeal principally seek remand of five issues to a new ALJ on the grounds the original ALJ prejudicially rephrased Plaintiff's issues before trial. Additionally, D.G. seeks reversal of the ALJ's decision on several of the Rendered Issues.⁸

LEGAL STANDARD

“Judicial review under the IDEA is an odd creature in administrative law.” Los Angeles Unified Sch. Dist. v. A.O. by & through Owens, 92 F.4th 1159, 1168 (9th Cir. 2024). The IDEA instructs a reviewing court to (1) receive and review the record of the administrative proceeding; (2) if requested by either party, hear additional evidence; and (3) grant appropriate relief based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(c). Reviewing decisions under the IDEA, the deference federal courts grant to the underlying state administrative proceeding is much less than that applied in most other administrative proceedings, which employ a highly deferential standard of review. E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of Admin. Hearings, 652 F.3d 999, 1005 (9th Cir. 2011).

While less deferential, the general standard of review, is not de novo. Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001) (“Complete de novo review, however, is inappropriate.”); see also Los Angeles Unified Sch. Dist. v. A.O. by & through Owens, 92 F.4th 1159, 1168 (9th Cir. 2024) (“[T]he court [does not] try factual issues de novo.”). Where it comes to the state's judgments of education policy the court must give “due weight” to such judgments, A.O., 92 F.4th at 1168 (citation modified), and may not “ ‘substitute [its] own notions of sound educational policy for those of the school authorities which they review,’ ” id. (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034). Purely legal questions arising under the IDEA, however, are reviewed de novo. See Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9 (1st Cir. 2002).

Therefore, a court's analysis of an ALJ's findings under the IDEA proceeds in effectively two parts. First, the court determines if the administrative findings are “thorough and careful”; if they are, the findings are entitled to “particular deference.” A.O., 92 F.4th at 1168. Then, the court reviews the administrative decision, laying the burden of persuasion at the feet of the party challenging the administrative decision. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir. 2009).

Ensuring that an ALJ's decision is thorough and careful requires more than considering the duration of the hearing and the ALJ's active involvement in it. M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1194 (9th Cir. 2017). Where an ALJ fails to address all of the issues and disregards evidence presented at the hearing, the ALJ's decision is “neither thorough nor careful.” Id. at 1195.

ANALYSIS

Plaintiff D.G. has been diagnosed with cerebral palsy due to a stroke on the right side of her brain. (AR 563.) Relatedly, she has left-sided hemiplegia marked by difficulty using her left arm and with doing things like opening her left fist. (Id.) She qualifies for benefits under the IDEA as a “child with a disability” because she has an orthopedic impairment, and a speech and/or language impairment. (ECF No. 22 at 2); 34 C.F.R. §§ 300.8(c)(8), (11).

I. Remand on Plaintiff's Rephrased Issues

Plaintiff argues that the ALJ rephrased several of her issues and that these alterations were consequential because they prejudiced her in the presentation of her case during the hearing. She consequently seeks vacature and remand ⁹ of the ALJ's decisions on Rendered Issues 1(g), 2(c), 2(g), 2(h), and 2(j). She also makes rephrasing arguments regarding Rendered Issue 1(h) and the Court thus addresses those arguments in this section.

During the prehearing conference and the first two days of the hearing, the ALJ rephrased Plaintiff's issues on the basis that as written they were too broad when compared with the facts alleged in the due process complaint and the law required the issues be narrowed before hearing. The Court finds that by and large the issues as Plaintiff originally phrased them were adequately supported by the facts as required by the IDEA's pleading standard and the law. Thus, where the ALJ's rephrasing was prejudicial to Plaintiff, the Court vacates and remands the issues for rehearing as Plaintiff originally pled them.

The pleading standard for a due process complaint under the IDEA is “minimal.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 54, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). It requires a due process complaint to include:

(III) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and

(IV) a proposed resolution of the problem to the extent known and available to the party at the time.

20 U.S.C. §§ 1415(b)(7)(A)(ii)(III)–(IV). The statute does not require a plaintiff to allege all facts or all theories of liability, nor does it require a due process complaint that survives initial scrutiny to be further narrowed prior to hearing.

In interpreting the IDEA's pleading requirement, at least one other federal court has persuasively held that just because the IDEA requires a plaintiff to include facts relating to the problem alleged does not mean that the plaintiff must plead “all facts ․ much less that every legal theory must be set forth in painstaking detail at that time to avoid waiver.” Escambia Cnty. Bd. of Educ. v. Benton, 406 F. Supp. 2d 1248, 1259–60 (S.D. Ala. 2005). In Escambia, the student had initially stated in his request for a due process hearing that the school board violated the IDEA by failing to provide an IEP that complies with the IDEA. Id. at 1258–59. The hearing officer requested counsel specify what about the IEP was inadequate, and counsel for the plaintiff enumerated a number of reasons. Id. at 1259. Then, at the hearing, the student put on evidence demonstrating and the hearing officer concluded that the IEP violated the IDEA for a reason the student did not raise in either the request for a due process hearing or in response to the hearing officer's request for clarification. Id. When, on appeal, the school board argued that it had had no prior notice of this new reason the IEP violated the IDEA, the district judge persuasively held that the IDEA does not prevent a plaintiff from raising new theories of liability at the hearing related to an issue originally broadly pleaded. Id. at 1260–61. In dicta, the Third Circuit approvingly cited to this exact holding. M.S.-G v. Lenape Reg'l High Sch. Dist. Bd. of Educ., 306 F. App'x 772, 775 n.2 (3d Cir. 2009).

This Court is likewise persuaded by the court's reasoning in Escambia that the IDEA's procedural requirements for a hearing are satisfied even where the due process complaint generally challenges an IEP on several enumerated grounds and then the hearing later provides new grounds for challenging that same IEP. Escambia, 406 F. Supp. 2d at 1259–60. The Court sees no need to reorganize or narrow issues prior to hearing where a plaintiff should instead be allowed to raise new theories of liability as they materialize during the hearing.

At odd with the IDEA's minimal pleading requirement, the Office of Administrative Hearings employs a “common practice in IDEA cases for ALJs to restate and reorganize the issues presented by the parties.” M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1196 n.2 (9th Cir. 2017) (citations omitted). In accordance with this practice, the ALJ in this case narrowed Plaintiff's issues prior to the hearing. As he did so, he reasoned that the practice is mandated by California Education Code § 56505(e)(6),¹⁰ which reads:

(e) A party to the hearing held pursuant to this section shall be afforded the following rights consistent with state and federal statutes and regulations:

․

(6) The right to be informed by the other parties to the hearing, at least 10 days before the hearing, as to what those parties believe are the issues to be decided at the hearing and their proposed resolution of those issues.

Upon review of the plain language of this statute, though, this Court does not perceive where the statute mandates that the plaintiff's issues be further narrowed beyond those alleged in the due process complaint. The language does not preclude a party from deciding to stand on its issues and proposed resolutions as originally asserted in its due process complaint. The Court does not comprehend the ALJ's interpretation imposing additional requirements that do not appear on the statute's face. Further, nothing in the IDEA requires the issues addressed in the hearing be narrowed from those of the due process complaint.

Indeed, the Ninth Circuit has raised an eyebrow at the OAH practice of reorganizing and rephrasing plaintiffs' issues before hearing:

We question the wisdom of such a procedure where the parents are represented by counsel and the complaint states the issues intelligibly ․ A party bringing a due process complaint is entitled to frame the issues it wishes to present and should not be put in the difficult position of contradicting the presiding official who will soon be the trier of fact.

M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist., 858 F.3d 1189, 1196 n.2 (9th Cir. 2017) (citations omitted). In other contexts, the Ninth Circuit has held that an ALJ abuses her discretion where she sua sponte adjudicates theories of recovery independent from those raised directly or indirectly by the complainants, especially where the parties are represented by counsel, as Plaintiff was here. Morris v. Commodity Futures Trading Comm'n, 980 F.2d 1289, 1294 (9th Cir. 1992). This is because whatever happens at the hearing cannot be unmoored from the due process complaint. That which is not “fairly encompassed in the complaint” cannot be litigated at the hearing. See M.C., 858 F.3d at 1196 n.2.

Within this circuit, ALJs do not possess carte blanche to rephrase plaintiffs' issues. Where such a rephrasing is consequential, leading the ALJ to fail to consider a student's issue, the student is prejudiced and the rephrasing impermissible. See J.W. ex rel. J.E.W., 626 F.3d at 442–43; see also Capisistrano Unified Sch. Dist. v. S.W. et al., No. SACV 18-01896JVS(DFMx), 2020 WL 5540186, at *8 (C.D. Cal. Aug. 19, 2020), aff'd in part, rev'd in part and remanded sub nom. Capistrano Unified Sch. Dist. v. S.W., No. 20-55961, 2021 WL 6196698 (9th Cir. Dec. 30, 2021), and aff'd and remanded sub nom. Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125 (9th Cir. 2021) (“An ALJ has authority to reorganize and revise issues for clarity so long as it is substantively inconsequential.”). Restatement and reorganization are not per se prejudicial, though. Where the ALJ permits evidence on, and addresses the merits of, all of the issues as they were originally presented by the student, the student is not prejudiced. See Ford ex rel. Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086, 1090 (9th Cir. 2002).

Looking at the process as a whole, this minimal pleading standard makes sense for a proceeding where the parties have little chance at discovery prior to the hearing and are frequently learning as they go during the hearing. In such a context, the ALJ's insistence the issues be narrowly tailored to the exact facts as raised in the due process complaint is draconian. It also ignores that the IDEA already provides a remedy for when a prevailing party filed a complaint with insufficient information—the remedy is to reduce the award of attorney's fees, not limit the issues. See 20 U.S.C. § 1415(i)(3)(F)(iv).

Here, Plaintiff encountered exactly the issue envisioned by M.C. when Plaintiff's counsel disagreed with the ALJ on the rephrasing of her issues. As the ALJ stated that the California Education Code § 56505 required the issues be narrowed ten days before the hearing (AR 1510), Plaintiff's counsel argued in vain that her issues should be permitted to stand (AR 1541). The ALJ stated that permitting the issues to go forward as pled to the hearing would constitute a fishing expedition (AR 1819), despaired at the amount of time spent on rephrasing the issues (AR 1820), and eventually rejected first Plaintiff's Motion to Correct the Issues and then Plaintiff's Motion for Reconsideration (AR 378, 1509–64; ECF No. 24-2 ¹¹ ).

To this Court's view, the issues as pled by Plaintiff in her Amended Due Process Complaint passed muster under the IDEA's standard that the complaint describe the nature of the problem and a proposed resolution of the problem “to the extent known and available to [plaintiff] at the time.” 20 U.S.C. §§ 1415(b)(7)(A)(ii)(III)–(IV).

Nowhere does the IDEA require the issues as pled be narrowed prior to the hearing, and the referenced California Education Code section similarly does not mandate these issues be rephrased or reorganized ten days prior to the hearing. This makes sense in a process without pre-trial discovery and in a context where the plaintiff is represented by counsel, as Plaintiff was here.

Accordingly, where the ALJ's significant rephrasing of Plaintiff's Issues prejudiced Plaintiff's presentation of her case, the Court vacates the ALJ's decision and remands the issue, as Plaintiff originally pled it, to the ALJ.

A. The Safety Issue: Rendered Issues 1(g) and 2(c), Plaintiff's Issues 2(h) and 3(c)

Plaintiff argues the ALJ materially and prejudicially rephrased Plaintiff's Issues 2(h), “District denied [Student] FAPE during the 2021-2022 school year, including ESY 2022, by: Failing to provide a safe educational environment,” and 3(c), which made the same claim for the 2022–23 school year. The ALJ reshaped them into Rendered Issues 1(g), “Did Alpine deny Student a FAPE during the 2021–2022 school year and extended school year by failing to provide a safe educational environment in that Alpine did not appropriately address bullying of Student and classroom disruption, which prevented Student from accessing her education?”, and 2(c), which asked the same question for the 2022–2023 school year. Plaintiff asserts that this rephrasing caused the ALJ to exclude evidence relating to the safety of the Shadow Hills campus at the hearing.

The ALJ eliminated consideration of the physical safety of the school environment even though Plaintiff's attorney raised at the prehearing conference that the Amended Due Process Complaint mentioned things like falls. (AR 1439–43.) It appears from the transcript that the ALJ zeroed in on bullying and forgot to address this point during the prehearing conference. (Id.) To the extent the ALJ rephrased the issue because he ultimately found physical safety was not raised in the Amended Due Process Complaint, this Court respectfully disagrees with that reading. Plaintiff's Amended Due Process Complaint noted that Student is at an increased risk of falling and is unable to brace herself with her left arm, which can result in injuries. (AR 96.) It also mentions that an outside expert report recommended Student have a one-to-one aide to help with maintaining a safe environment for Student. (AR 99.) It further mentions a time Student fell on the playground and required ice for an injury. (AR 101.) A plaintiff filing an Amended Due Process Complaint in an IDEA case need not plead every single legal theory and every fact that might vindicate her issues, but here Plaintiff pled more than enough to support retaining the term “safe educational environment” in her issues. See Escambia, 406 F. Supp. 2d at 1259–60.

In briefing, District contends the issue was addressed regardless of the rephrasing because the ALJ “specifically discusses safety issues at least 14 times in his decision (AR 1349[,] 1351, 1353, 1361, 1364, 1366, 1373, 1377, 1379–80).” (Dist. Resp. at 9.) District's citations to the record are unavailing. While the portions of the record District directs the Court to mentions the word “safety,” none of them analyzes or engages with the concept of the physical safety of the campus. The topic simply was not analyzed in the ALJ's decision; this is not surprising given that he wrote it out of the issue.

At oral argument, District pointed the Court to times during the hearing when the ALJ permitted testimony related to Student's ability to get around the campus, and directed the Court to AR 2198, 2760–63, 3017, and 3019. Indeed, at these points, the ALJ permitted testimony regarding the physical safety of the Shadow Hills campus and Student's ability to get around there. Nonetheless, the ALJ was inconsistent in his admission of evidence regarding the safety of the campus. While the ALJ was liberal in hearing Father's testimony about uneven pavement, at another point the ALJ cited to the physical safety of the campus not being an issue as a reason to exclude similar evidence. (AR 2786.) The ALJ prevented Plaintiff's counsel from questioning a District employee about potential safety issues at the Shadow Hills campus, such as broken pavement, finding that questions about the physical safety of the campus were not in Plaintiff's complaint. (Id.) And, again, whether the ALJ permitted the evidence or not, he did not ultimately consider it in his decision on his rephrased issues because this issue no longer encompassed such questions.

Here, Plaintiff's safety issues as originally pled would have required the ALJ to include and consider the question of whether the physical safety of the campus denied Student a FAPE. While it is true the ALJ at times during the hearing permitted evidence regarding Student's ability to get around campus, the ALJ did not permit all such evidence to be admitted, and for the evidence he did permit, it was only analyzed in the context of whether District was on notice that Student required a one-to-one aide. At oral argument, Plaintiff's counsel represented that the rephrasing of the issues had a chilling effect on how Plaintiff presented her case at the hearing. (ECF No. 41.) All of this demonstrates that Plaintiff was prejudiced by the ALJ's rephrasing of her safety issues. Further, even though he narrowed the issue to a question of appropriately addressing bullying or classroom disruption, the ALJ's decision did not anywhere analyze the level of bullying or classroom disruption D.G. experienced while at Shadow Hills. The ALJ failed even to address the issue as rephrased, only concluding at the end of the decision that District prevailed on the safety issues (Rendered Issues 1(g) and 2(c)).¹²

Given that the facts on the safety issue have not been fully introduced or analyzed, the Court VACATES the ALJ's decision on Rendered Issues 1(g) and 2(c), originally Plaintiff's Issues 2(h) and 3(c), and ORDERS Plaintiff's Issues 2(h) and 3(c) be remanded to the ALJ for hearing.¹³

B. Parental Participation: Rendered Issue 2(g), Plaintiff's Issue 3(h)

Plaintiff claims her counsel had to rewrite witness exams after the ALJ changed her original Issue 3(h), failing to allow parental participation at the May 2023 IEP meeting, to Rendered Issue 2(g), refusing to answer parent questions regarding the March 28, 2023, and May 15, 2023, assessments. (Pl. Mot. at 14.)

The Ninth Circuit has held that parents' role in the IEP and educational placement “is critical to the organization of the IDEA.” Doug C. v. Hawaii Dep't of Educ., 720 F.3d 1038, 1043 (9th Cir. 2013) (citing 20 U.S.C. § 1414(d)(1)(B)(i); 34 C.F.R. § 300.321(a)(1); 20 U.S.C. § 1415(b)(1)). The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child. 34 C.F.R. § 300.501; Cal. Educ. Code § 56304; 20 U.S.C. § 1414(d)(C). Accordingly, “parental participation safeguards are among the most important procedural safeguards in the IDEA and [ ] procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA.” Doug C., 720 F.3d at 1043 (citation modified).

In her briefing, Plaintiff asserts that had the issue remained as she originally worded it, she would have litigated the “full breadth” of the issue; but she does not state what that “full breadth” litigation would entail. (ECF No. 20 at 15.) At oral argument, Plaintiff's counsel clarified that as they had originally conceived of the issue, District made parental participation in the IEP impossible because Parent sought to raise a number of issues at the March and May 2023 IEP meetings, but District refused to engage on them. (ECF No. 41.) Counsel stated that at those meetings Parent raised the issues of D.G.'s safety if she were to return to Shadow Hills, a recent diagnosis of dyslexia, and the appropriateness of D.G.'s academic goals as well as speech and language goals. (Id.) Plaintiff's counsel further represented that District refused to engage on those topics at those meetings, thus denying Parent's participation in the IEP. (Id.)

Counsel for District responded that she did not recall any of those issues being raised at those meetings and that she did not believe there was a basis for bringing the claims based on what Student included in her Amended Due Process Complaint. (Id.)

While the notes from the IEP meeting clearly show that Parent raised issues of safety as well as the speech and language program at the meeting, they do not reflect that Parent raised concerns about Student's academic goals or any recent diagnosis of dyslexia. (AR 1181, 1200, 1202.) More importantly, though, these issues are not raised anywhere in Student's Amended Due Process Complaint. (AR 103.)

In the Amended Due Process Complaint, Student mentions District counsel refusing to allow District staff to comment on the evaluations of D.G. at Sierra School, but the complaint does not mention District refusing to engage with Plaintiff on any other issues. (Id.) Nowhere does Plaintiff state that District refused to engage with Parent on those issues Plaintiff's counsel raised at oral argument. Nowhere does the Amended Due Process Complaint state that District failed to engage with Parent at that IEP meeting on any topic other than District staff's evaluations of D.G. at Sierra School. Plaintiff could not have discovered this new theory of liability at the hearing—both Parent and counsel were present at the IEP meetings in question and thus had full knowledge of any potential claim when the due process complaint was drafted.

While the Court is sympathetic to Plaintiff's desire to litigate the full breadth of this issue, what is not “fairly encompassed in the complaint” cannot be litigated at the hearing. See M.C., 858 F.3d at 1196 n.2. Under the IDEA, the due process complaint must include facts relating to the problem described in the complaint, 20 U.S.C. § 1415(b)(7)(A)(ii)(III), and without these facts, Plaintiff's Amended Due Process Complaint on these issues failed to surmount even the IDEA's “minimal” pleading standard, see Schaffer, 546 U.S. at 54, 126 S.Ct. 528.

As to Rendered Issue 2(g), summary judgment will be GRANTED for District and DENIED for Plaintiff.

C. The Appropriateness of What Was Provided: Rendered Issue 2(h), Plaintiff's Issue 3(i)

Counsel clarified Plaintiff's arguments regarding the rephrasing of this issue at oral argument. (ECF No. 41.) Plaintiff argues that this rephrasing caused the ALJ's decision to focus on what was offered, and whether that offering was implemented, rather than focusing on the appropriateness of D.G.'s placement as implemented in the 2022–2023 school year. (Pl. Resp. at 14; ECF No. 41.)

The ALJ rephrased Plaintiff's Issue 3(i), “District denied [Student] FAPE during the 2022–2023 school year by: Failing to offer or provide her with an appropriate educational placement,” (AR 106 (emphasis added)), to Rendered Issue 2(h), “Did Alpine deny Student a FAPE during the 2022–2023 school year, by: failing to offer an appropriate special day class in the March 9, 2023 and May 18, 2023 IEPs?” (AR 1303 (emphasis added)).

While the ALJ limited the issue to just “offer” instead of “offer or provide,” the material change came with the ALJ's failure to analyze whether what District provided during the 2022–2023 school year was appropriate, even if, on paper, it matched the IEP perfectly.

This distinction is akin to Person A agreeing to make a nutritious sandwich for Person B. These two people agree the sandwich must contain bread, lettuce, tomatoes, turkey. Person A makes the sandwich and gives it to Person B. On paper, Person A provides a perfect sandwich. It contains all of the agreed-upon ingredients, but each ingredient has gone rancid and moldy. Person A offered and provided the sandwich as agreed, but while they complied on paper, what was provided was not appropriate for what was agreed. It was not nutritious.

The ALJ's decision similarly addressed only the question of whether each of the agreed-upon ingredients of the IEP was there for the 2022–2023 school year but did not address whether they were appropriate as provided. (AR 1347–51.) The decision instead appeared to relitigate the phrasing of the issues in Student's Amended Due Process Complaint. (See, e.g., AR 1332 (“Student's complaint does not allege facts regarding a failure to materially implement educational instruction during the 2022–2023 school year.”).) As Plaintiff argues the issue, though, and as presented in her Amended Due Process Complaint, Plaintiff did in fact raise a specific issue regarding the appropriateness of the placement offered and provided during the period between August 2022 and March 9, 2023. In her Amended Due Process Complaint, Plaintiff raised the issue that Student was being bullied in the classroom during the 2022–2023 school year. (AR 101.) Plaintiff also alleged that Parent sought placement in another classroom at Shadow Hills for this school year and that “District continued to refuse to provide appropriate placement or services, and denied FAPE to [D.G.].” (AR 101.)

Despite this, the ALJ's decision specifically disclaimed the need to address the appropriateness of what was provided. The ALJ wrote, “Student did not raise a specific issue regarding the appropriateness of Alpine's placement offer in the March 7, 2022 IEP for the period between August 2022 and March 9, 2023.” (AR 1347.) Therefore, the ALJ's decision missed addressing questions like whether D.G.'s second-grade special education classroom as it operated was appropriate. Or whether the speech and language specialized instruction D.G. received as provided was appropriate. The decision examined only whether the ingredients were there, and not their quality.

District presented a harmless error argument on this topic at oral argument. District argued that the rephrasing of the issue from “offer or provide” to just “offer” was not prejudicial because the ALJ's decision elsewhere, in Rendered Issue 2(a), analyzed the appropriateness of what District provided. (ECF No. 41.) Indeed, the ALJ's decision on Rendered Issue 2(a), which addressed whether District materially implemented each of the ingredients of the March 2022 IEP during the 2022–2023 school year, ran through the provision of Student's accommodations during the 2022–2023 school year. (AR 1325–27, 1332–33.) The analysis, however, focused on the on-paper provision of the promised accommodations and supports, such as the supplies available and the minutes spent in each setting. (See id.) For instance, it analyzed the provision of occupational therapy and speech and language therapy by comparing what the IEP offered on paper in terms of minutes of therapy, with what District provided on paper, also in terms of minutes of therapy. (AR 1319–22.) However, as discussed above, whether all of the ingredients were there is not the missing question. The missing question is whether the ingredients, as provided, were appropriate and, if not, whether they were inappropriate to the point of denying Student a FAPE. That was not discussed. Accordingly, the ALJ's decision did not ultimately analyze whether the educational placement as provided was appropriate, even though the issue was raised in Plaintiff's Amended Due Process Complaint.

Thus, the Court GRANTS Plaintiff's Motion on Rendered Issue 2(h) and REMANDS the issue for reconsideration as originally phrased in Plaintiff's Issue 3(i).

D. Appropriate Education Setting: Rendered Issue 2(j), Plaintiff's Issue 3(k)

The ALJ rephrased Plaintiff's Issue 3(k), “District denied [Student] FAPE during the 2022–2023 school year by: Failing to offer or provide [D.G.] with an appropriate education setting in the May 2023 IEP,” (AR 58), to become Rendered Issue 2(j): “Did Alpine deny Student a FAPE during the 2022–2023 school year, by: failing to offer placement at any school other than Shadow Hills Elementary School in the May 2023 IEP?” (AR 1303).

Plaintiff challenges this rephrasing as prejudicial because the ALJ changed the issue from the proposed program to the physical location of that proposed program. (Pl. Mot. at 17.) When Plaintiff raised the issue “education setting” in her Amended Due Process Complaint, she intended to use the term “setting” as “a term of art that includes ‘placement.’ ” (Id. at 17.) Plaintiff then goes on to point to California's definition of “specific educational placement” to make her argument. (Id. at 17–18.)

Plaintiff fails to distinguish for the Court, then, how this issue differs from Plaintiff's Issue 3(i), discussed above, which sought to challenge D.G.'s educational placement as offered and provided during the same time period. If Plaintiff sees “educational setting” as identical to “educational placement,” then the Court cannot comprehend how these are separate issues. Given that this issue as Plaintiff conceived of it entirely overlaps with Plaintiff's Issue 3(i), which the Court is vacating and remanding, the Court will also VACATE and REMAND the ALJ's decision on Plaintiff's Issue 3(k)/Rendered Issue 2(j).

E. “Offer or Provide” to “Offer” for Adapted Physical Education: Plaintiff's Issue 3(i), Rendered Issue 1(h)

Plaintiff seeks reversal of the ALJ's decision on Rendered Issue 1(h), which deals with whether District denied Student a FAPE during the relevant time period by failing to offer adapted physical education or a one-to-one aide for the 2021–2022 school year. In her argument for reversal, though, Plaintiff makes an argument based on the rephrasing of this issue. Her argument is as follows:

the ALJ found that issue 1(h) was time-barred because “Alpine's offer of FAPE governing the 2021–2022 school year was made more than two years before the filing of student's original complaint on June 14, 2023.” A.R. 1379. However, the ALJ changed this issue from “offer or provide” to “offer.” The provision of such services could have begun at any point during the school year, after the District had notice of D.G.'s needs. Due to the ALJ's failure to fully analyze the issue, misstatement of the issue as pled, and reliance on misapplied law, he incorrectly held that D.G. failed to meet her burden of proof on this issue.

(Pl. Mot. at 24–25.) On this issue, the Court does not find the ALJ's rephrasing ultimately prejudiced Plaintiff's presentation of her case.

Plaintiff originally raised this issue as Plaintiff's Issue 2(i), where she sought to show District denied D.G. a FAPE in the 2021–2022 school year by failing to offer or provide her with appropriate services or supports in the areas of one-to-one support, adapted physical education, and safety. (AR 114.) The question of one-to-one support is addressed and remanded below, (see infra Section II.A.2.), accordingly, it shall not be addressed here. Additionally, Plaintiff's Issue 2(i) as it went to safety has already been addressed, (see supra Section I.A.), and likewise shall not be addressed here. That leaves the question of adapted physical education.

The ALJ's decision found that analysis of what was offered for the 2021–2022 school year was time-barred because it was based on the January 2021 IEP, which was outside the statute of limitations period. (AR 1306–11.) This may have prejudiced Plaintiff, except Plaintiff does not show that her issue went unaddressed; she does not direct the Court to where in the record the ALJ excluded evidence on Student's need for adapted physical education.

To the contrary, the ALJ's decision analyzed this question when it analyzed District's duty (or lack thereof) to assess for adapted physical education. (AR 1354–58.) His analysis of Student's potential need for adapted physical education was thorough and careful and due substantial deference. The decision considered Dr. Gray's recommendation for adapted physical education, but rejected the recommendation because Dr. Gray was not knowledgeable of the modifications Alpine already provided, and Dr. Gray demonstrated no ability to distinguish between adapted physical education and a modified regular physical education program. (AR 1357.) Further, Alpine was under no obligation to incorporate the recommendation of an expert; Alpine needed only to consider it.

Accordingly, Plaintiff's Motion for Summary Judgment is DENIED and District's is GRANTED on this Rendered Issue 1(h) as it relates to adapted physical education.

II. Reversal

As discussed above, where a plaintiff seeks reversal of an ALJ's findings, the court first considers the level of deference to apply to the ALJ's decision and then reviews the decision itself. However, the Court does not reverse on any issues upon which it has already remanded, given their intertwined nature with the issues already analyzed.

A. The Duty to Assess: Reversal of the ALJ Decision on Rendered Issues 1(c) and 2(b)

Plaintiff argues the ALJ's decision misapplied the law relating to District's failure to assess and consequently the ALJ's decision on Rendered Issues 1(c) and 2(b) should be reversed. (Pl. Mot. at 18.) Questions of law are reviewed de novo. Rendered Issues 1(c) and 2(b) asked if District denied D.G. FAPE by failing to assess her in all areas of suspected disability, specifically in the areas of academics, speech and language, occupational therapy, adapted physical education, assistive technology, and for special circumstance instructional assistance. (AR 1301–02.) Rendered Issue 1(c) poses this question for the 2021–2022 school year and Rendered Issue 2(b) poses the same question for the 2022–2023 school year.

1. The Applicable Standard

The applicable standard for when a district must assess a child differs depending on whether it is an initial assessment or a reassessment. An initial assessment is essentially an eligibility determination to understand whether the child is one covered by the IDEA.¹⁴ Before an IEP team can even convene, before a district can provide special education and related services, a district must perform this initial assessment, which must be as comprehensive as possible. All assessments after this initial assessment are reassessments. Plaintiff introduced nothing in the record to indicate, and made no arguments, that an initial eligibility assessment for D.G. did not take place.¹⁵ Indeed, Parent signed an assessment plan on March 15, 2021, for “additional assessments” that would determine if D.G. had “any additional handicapping conditions.” (AR 559.) D.G. had already been determined as eligible under the IDEA. Thus, the ALJ's decision appropriately exclusively applied the standard for reassessment when analyzing whether District's duty to assess D.G. was triggered during these years.

The standard for when reassessment of a student is triggered is quite clear. By law, a child must be reassessed at least once every three years. Id. § 1414(a)(2)(B)(ii). Otherwise, reassessment requires a request by the child's parents or teacher, or a determination by the district that a reassessment is necessary. Id. § 1414(a)(2)(A). Where none of these conditions is met, the district has no duty to conduct a reevaluation of a child. M.S. by & through Sartin v. Lake Elsinore Unified Sch. Dist., 678 F. App'x 543, 544 (9th Cir. 2017).¹⁶

From this Court's reading of the relevant statutes, it follows that even though District did not include some of the specific evaluations named in the Rendered Issues when it initially assessed D.G., if District were to conduct evaluations in these new areas later, such evaluations would be part of a reassessment under the IDEA because they followed after D.G.'s initial assessment for eligibility.

The Court finds the ALJ's opinion as to each of the assessments laid out in Rendered Issues 1(c) and 2(b) is due substantial deference and affirms all but one of the ALJ's determinations that neither Parents nor a teacher requested these assessments during this period, nor did District determine the need for any of them. However, the Court vacates and remands the ALJ's decision finding District did not deny Student a FAPE when it failed to conduct an SCIA assessment.

2. The SCIA Assessment

The ALJ's decision on Rendered Issues 1(c) and 2(b), whether District denied D.G. FAPE by failing to assess her in the area of special circumstance instructional assistance, among other assessments, did not consider evidence that Parent had requested an aide during the March 2022 IEP meeting. The ALJ treated Dr. Gray's recommendation for one-to-one or small group instruction and Dr. Gray's separate recommendation that D.G. have an aide to assist her with accessing the educational environment as though they were the same thing. (AR 1363.) Accordingly, the Court affords this part of the opinion little deference, finding it not as thorough and careful as other sections.

The record shows that Parents requested an SCIA assessment at least as late as the March 2022 IEP meeting and therefore Student was denied FAPE because the failure to assess for SCIA meant the IEP team failed to better consider an alternate placement—provision of a one-to-one aide. Timothy O., 822 F.3d at 1124.

District has a policy that for District to provide a child with a one-to-one aide, the child must first go through an SCIA assessment. (AR 1201.) By District's own admission, though, no law requires such an assessment before a school district may provide an aide to a child. (Dist. Mot. at 6.)

At the March 2022 IEP meeting Mother was without counsel and was unaware that an SCIA assessment was a prerequisite for a one-to-one aide. (AR 986, 992.) During this meeting and armed with the recommendation of a Dr. Gray's independent neuropsychological evaluation,¹⁷ Mother asked about Student being provided with a one-to-one aide. (See AR 2017 (containing testimony from Ms. Maier stating that they did not discuss an SCIA assessment in the meeting but “discussed a special ed one-to-one aide”); see also AR 2307, 2311 (containing testimony from Ms. Watson that Mother requested an aide during the meeting)). Given District's unpublicized policy that an SCIA assessment is a prerequisite for a one-to-one aide, Parents' requests for an aide, accompanied by the recommendation of Dr. Gray, must be understood as requests for an SCIA assessment. However, District stated it would not conduct an SCIA assessment until “after other site interventions have proven unsuccessful.” (AR 992.) To say that because Parents were requesting an aide, rather than the assessment to get an aide, meant Parents were not requesting an assessment, is a specious argument. The law is clear that a reassessment is performed when a parent requests one and not when a district has determined all other options have been exhausted. 20 U.S.C. § 1414(a)(2)(A).

That District began the process of obtaining an SCIA assessment in September 2022 does not pardon its failure to engage with Parent's request in March 2022. Thus, the Court VACATES the ALJ's decision on this issue and REMANDS Rendered Issues 1(c) and 2(b) to the ALJ for determination of whether District denied Student a FAPE by failing to conduct an SCIA assessment when Parents requested one.

B. Provision of a One-to-One Aide and Adapted Physical Education: Remand of the ALJ Decision on Rendered Issues 1(h) and 2(d)

In her Motion for Summary Judgement, Plaintiff seeks reversal of the ALJ's Decision on Rendered Issues 1(h) and 2(d). Rendered Issue 1(h) deals with the provision of a one-to-one aide and adapted physical education during the 2021–2022 school year. Rendered Issue 2(d) deals with the failure to offer an aide for school and transportation, as well as whether District failed to offer individual and increased frequency and duration for speech and language services in the March 2022 IEP. (AR 115.) The Court takes each of these questions in turn.

1. Offering a One-to-One Aide, Rendered Issues 1(h) and 2(d)

Because the Court is remanding the assessment issues, Rendered Issues 1(c) and 2(b), regarding District's failure to conduct an SCIA assessment for an aide, the Court must therefore likewise VACATE and REMAND the portions of Rendered Issues 1(c) and 2(b) that ask whether District denied D.G. a FAPE by failing to offer D.G. an aide.

2. Offering Increased Speech and Language Services, Rendered Issue 2(d)

While Plaintiff appealed Rendered Issue 2(d), which in part concerns the question of whether District denied D.G. a FAPE by failing to offer individual and increased frequency and duration of speech and language services in the March 2022 IEP, Plaintiff makes no arguments on this part of Rendered Issue 2(d) in her Motion for Summary Judgment. (See generally ECF No. 20.) Accordingly, having confirmed at oral argument that any issue not raised in the summary judgment motion has been dropped from Plaintiff's appeal, the Court GRANTS summary judgment for District and AFFIRMS the ALJ's decision on Rendered Issue 2(d) as it relates to the speech and language services offered in the March 2022 IEP.

3. Provision of Adapted Physical Education, Rendered Issue 1(h)

Lastly, Rendered Issue 1(h) asks whether District denied D.G. a FAPE by failing to offer or provide adapted physical education to D.G. during the 2021–2022 school year. The Court already addressed this question when it addressed Plaintiff's arguments that the rephrasing of Rendered Issue 1(h) prejudiced Plaintiff. (See supra Section I.E.) The ALJ's decision sufficiently analyzed whether District should have assessed for adapted physical education in the 2021–2022 school year and appropriately concluded that D.G. did not produce any evidence showing District should have assessed for adapted physical education, let alone offered or provided it spontaneously during this time. (AR 1354–58.) Accordingly, District's motion for summary judgment on Rendered Issue 1(h) it deals with adapted physical education is GRANTED and the ALJ's decision is AFFIRMED.

CONCLUSION

For the reasons stated above, Plaintiff's summary judgment motion is GRANTED IN PART and the ALJ's decision is VACATED and REMANDED on the following Rendered Issues:

• Rendered Issue 1(c), Did Alpine deny Student a FAPE during the 2021–2022 school year and extended school year by failing to assess Student for special circumstance instructional assistance?

• Rendered Issue 1(g), Did Alpine deny Student a FAPE during the 2021–2022 school year and extended school year by failing to provide a safe educational environment in that Alpine did not appropriately address bullying of Student and classroom disruption, which prevented Student from accessing her education?

• This shall be reheard as originally phrased in Plaintiff's Issue 2(h): Did Alpine deny Student a FAPE during the 2021–2022 school year and extended school year by failing to provide a safe educational environment?

• Rendered Issue 1(h), Did Alpine deny Student a FAPE during the 2021–2022 school year and extended school year by failing to offer appropriate services and supports in the form of a one-to-one aide?

• Rendered Issue 2(b), Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to assess Student for special circumstance instructional assistance?

• Rendered Issue 2(c), Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to provide a safe educational environment in that Alpine did not appropriately address bullying of Student and classroom disruption, which prevented Student from accessing her education?

• This shall be reheard as originally phrased in Plaintiff's Issue 3(c): Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to provide a safe educational environment?

• Rendered Issue 2(d), Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to offer an aide at school or during transportation?

• Rendered Issue 2(h), Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to offer an appropriate special day class in the March 9, 2023 and May 18, 2023 IEPs?

• This shall be reheard as originally phrased in Plaintiff's Issue 3(i): Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to offer or provide her with an appropriate educational placement?

• Rendered Issue 2(j), Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to offer placement at any school other than Shadow Hills Elementary School in the May 2023 IEP?

• This shall be reheard as originally phrased in Plaintiff's Issue 3(k): Did Alpine deny Student a FAPE during the 2022–2023 school year by failing to offer or provide D.G. with an appropriate education setting in the May 2023 IEP?

On all other issues appealed, the Court GRANTS IN PART Defendant's Motion for Summary Judgment and AFFIRMS the ALJ's decision. (ECF No. 21.) If Plaintiff seeks attorney's fees, such motion must be made to the Court no later than September 18, 2025.

IT IS SO ORDERED.

FOOTNOTES

1.   This is sometimes referred to colloquially as the “Individualized Education Plan” but the official and legal term under the IDEA is “program.”

2.   These eligibility categories are formally referred to as a primary disabling condition of “orthopedic impairment” and a secondary eligibility category of “speech and/or language impairment.” (ECF No. 22 at 2.)

3.   The parties stipulated to this at oral argument. (ECF No. 41.)

4.   Stories conflicted at the hearing as to when and if Parents submitted a copy of his report to the District prior to the March 7, 2022, IEP meeting. Mother testified that she left a paper copy of the report on Mr. Beyoghlow's desk sometime in December (AR 2635), and District claimed it did not receive it until after Dr. Gray presented on his findings at the March 7, 2022, IEP meeting. In his Decision, the ALJ did not make a formal finding that Mother's version of events lacked credibility, but he assumed District's version of the facts on this issue. (AR 1342.) Mr. Beyoghlow did not testify at the hearing despite a subpoena.

5.   Plaintiff also attempted to subpoena Ms. Meris to testify at the hearing, but Ms. Meris did not show.

6.   Plaintiff spends a good bit of the facts section of her Motion for Summary Judgment to go over this meeting. (Pl. Mot. at 4–5.) However, she makes no arguments in the body of the Motion stating that this was insufficient, and so the Court will not review the recommendations here. (See generally Pl. Mot.)

7.   At the hearing, District did not offer the reasons justifying this change from the 86% of specialized academic instruction offered in the March 2022 IEP.

8.   Plaintiff confirmed at oral argument that she is no longer appealing the issues not addressed in her Motion for Summary Judgment. (ECF No. 41.) She further confirmed the Court's understanding that she seeks reversal on 1(c), 1(h), 2(b), and 2(d), and then remand or relitigation on 1(g), 2(c), 2(g), 2(h), and 2(j). Thus, the Court concludes Plaintiff is not appealing Rendered Issues 1(a), 1(b), 1(d), 1(e), 1(f), 2(a), 2(e), 2(f), or 2(i), although they are raised in her Complaint.

9.   Technically, Plaintiff states she seeks “re-litigation” of these issues, but the Court interprets this as seeking vacature and remand.

10.   At the hearing, the ALJ cited the basis for this practice as “the 10-day rule in in Ed. code 5605,” (AR 1510), the Court infers this to reference California Education Code § 56505(e)(6).

11.   ECF No. 24-2 includes a supplemental transcript of a portion of a hearing when the ALJ had forgotten to turn the meeting recording back on. The Court granted a motion to supplement the record with this transcript at ECF No. 38.

12.   The ALJ's decision several times notes that another section of the decision will discuss the safety issues of Rendered Issues 1(g) and 2(c). (See AR 1349, 1386 (twice directing the reader to a different part of the decision for discussion of Issues 1G and 2C).) However, that discussion of the safety issues never materializes. (See generally AR 1300–90 (failing to analyze these issues in the entire ALJ decision).) Instead, the decision's conclusion simply stated that Student “failed to establish that Shadow Hills provided an unsafe campus.” (AR 1380.)

13.   While Plaintiff did not move for reversal on these issues and the Court does not reverse here, it is nonetheless perplexing that the ALJ failed to engage with the substantial number of exhibits documenting instances where D.G. experienced harassment and injury at the hands of other students. Even if the ALJ found Mother's testimony to be too vague to be persuasive, the email exhibits provided plenty of specifics and evidence that at least one student engaged in such conduct more than once and that D.G. was refusing to go to school, which was also supported by her increasing school absences in the fall of 2022. (AR 602–03, 616–17, 781, 1024.) Strangely, the ALJ also did not analyze this issue in the context of Student's orthopedic impairment and how that might influence the severity of otherwise “garden variety” altercations with other students, nor that Maier testified that District has a policy where if a teacher is notified that a student has been bullied the District investigates the allegation to see if there's any relevance, yet District did not produce evidence of any such investigation in D.G.'s case. (AR 2122–23, 2125–26.)

14.   This conclusion derives from the statute itself. See 20 U.S.C. § 1414(a)(1)(B) (“either a parent of a child, or a State educational agency, other State agency, or local educational agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.” (emphasis added)); see also 20 U.S.C. § 1414(a)(1)(C)(i)(I) (“Such initial evaluation shall consist of procedures—(I) to determine whether a child is a child with a disability.” (emphasis added)); see also 20 U.S.C. § 1414(b)(2)(A) (requiring the district to conduct an initial evaluation using tools and strategies “that may assist in determining—(i) whether the child is a child with a disability” (emphasis added)); see also 20 U.S.C. § 1414(b)(4)(A) (requiring the district, upon completion of the assessments and evaluation measures, to make “the determination of whether the child is a child with a disability as defined in section 1401(3)” (emphasis added)).

15.   Contrast this with Timothy O.—Plaintiff's principal case on this issue—which was a challenge to the comprehensiveness of an initial eligibility assessment and the district's failure to include an assessment for autism when autism should have been a suspected disability addressed in that assessment. See Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105 (9th Cir. 2016).

16.   Plaintiff challenges the ALJ's reliance on this unpublished Ninth Circuit opinion in rendering his decision on these issues. This challenge is groundless. Federal Rule of Appellate Procedure 32.1 permits parties to cite unpublished decisions issued after January 1, 2017. Ninth Cir. R. 36-3(a)–(b). Courts are barred from prohibiting the citation of such unpublished opinions and must permit them to be cited for persuasive value. Fed. R. App. P. 32.1. Nonetheless, they are not precedent. Id. Lake Elsinore offers analysis of when a district must reassess a child. Consequently, the ALJ decision could rely on Lake Elsinore as persuasive authority for questions related to reassessment.

17.   District argues that Dr. Gray's recommendation for an aide was “equivocal;” it was anything but. (Dist. Resp. at 18.) Dr. Gray's report, presented at the March 2022 IEP meeting, clearly recommended D.G. have a one-to-one aide for general support. (AR 592–93.)

Cynthia Bashant, Chief Judge