1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 N. N., et al., Case No. 20-cv-08010-VKD

9 Plaintiffs,

ORDER RE SUPPLEMENTAL IDEA

10 v. BRIEFING RE REMEDIES

11 MOUNTAIN VIEW-LOS ALTOS UNION Re: Dkt. Nos. 72-75

HIGH SCHOOL DISTRICT,

12 Defendant.

13 14 Plaintiffs N.N. and her mother T.T. filed this action against the Mountain View-Los Altos 15 Union High School District (“District”) seeking judicial review of an administrative decision 16 under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq.1 17 Plaintiffs contend that the District failed to identify N.N. as a student eligible for special education 18 services in her sophomore year in high school, leading to her enrollment in a private residential 19 program in Montana, where she attended a local public high school for her junior and senior years. 20 Plaintiffs claim that the District denied N.N. a free appropriate public education (“FAPE”) for 21 each of the three school years at issue, 2017-2018, 2018-2019, and 2019-2020. They seek 22 reimbursement of expenses related to her private placement and other services, as well as their 23 attorneys’ fees and costs. 24 In the administrative proceedings, an administrative law judge (“ALJ”) concluded that the 25 District did not deny N.N. a FAPE because plaintiffs did not meet their burden to show that N.N. 26

27 1 Plaintiffs also assert claims for violation of Section 504 of the Rehabilitation Act of 1973, 29 1 was eligible for special education. AR2 1068-96. The Court reversed the ALJ’s decision in part 2 and affirmed it in part. Dkt. No. 69.3 Specifically, the Court found that the District denied N.N. a 3 FAPE during the 2017-2018 school year, when N.N. was a sophomore at Los Altos High School 4 (“LAHS”), by delaying a special education assessment. However, the Court concluded that the 5 District did not deny N.N. a FAPE during the 2018-2019 and 2019-2020 school years because the 6 evidence demonstrated that she did not need special education services. The parties were directed 7 to submit further briefing addressing what relief, if any, appropriately may be awarded to 8 plaintiffs. Id. 9 The parties have submitted their supplemental briefs. Dkt. Nos. 72-75. The matter is 10 deemed suitable for determination without oral argument. Civil L.R. 7-1(b). Upon consideration 11 of the moving and responding papers, the Court denies plaintiffs’ request for reimbursement of 12 expenses and defers ruling on an award of attorney’s fees and costs.4 13 The IDEA authorizes courts to grant “such relief as the court determines is appropriate,” 14 20 U.S.C. § 1415(i)(2)(C)(3), and “confers broad discretion on the court” to determine the 15 appropriate remedy where a FAPE has not been provided, Sch. Comm. of Town of Burlington, 16 Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985); see also Florence Cnty. Sch. Dist. v. 17 Carter, 510 U.S. 7, 15-16 (1993) (“[O]nce a court holds that the public placement violated IDEA, 18 it is authorized to grant such relief as the court determines is appropriate.”) (internal quotations 19 and citation omitted). The IDEA does not provide for the recovery of compensatory damages. 20 See C.O. v. Portland Public Schs., 679 F.3d 1162, 1166 (9th Cir. 2012) (“We have repeatedly held 21 that the IDEA creates a ‘comprehensive enforcement scheme’ in which compensatory damages 22

23 2 “AR” refers to the administrative record plaintiffs lodged with the Court. See Dkt. Nos. 31, 35, 51. 24

3 The parties are familiar with the particular facts of this case, which are recounted in detail in the 25 Court’s August 4, 2022 order and will not be repeated here, except as necessary in the discussion below. 26

4 Plaintiffs intend to seek an award of reasonable attorneys’ fees and costs “according to proof.” 27 See Dkt. No. 72 at 10. The District contends that it is premature to decide whether any such award 1 play no part.”). However, the IDEA allows for an award of “[c]ompensatory education,” which 2 “is an equitable remedy that seeks to make up for educational services the child should have 3 received in the first place, and aims to place disabled children in the same position they would 4 have occupied but for the school district’s violations of IDEA.” R.P. v. Prescott Unified Sch. 5 Dist., 631 F.3d 1117, 1125 (9th Cir. 2011). The IDEA also allows for “retroactive 6 reimbursement,” which requires a school district “to belatedly pay expenses that it should have 7 paid all along and would have borne in the first instance had it developed a proper [individual 8 education program].” Burlington, 471 U.S. at 370-71. “[E]quitable considerations are relevant in 9 fashioning relief.” Id. at 374. “Courts fashioning discretionary equitable relief under IDEA must 10 consider all relevant factors, including the appropriate and reasonable level of reimbursement that 11 should be required.” Carter, 510 U.S. at 16. “Total reimbursement will not be appropriate if the 12 court determines that the cost of the private education was unreasonable.” Id. 13 Parents who unilaterally change their child’s placement during the pendency of review 14 proceedings, without the consent of the school, do so at their own financial risk. Id. at 15. “They 15 are entitled to reimbursement only if a federal court concludes both that the public placement 16 violated IDEA and that the private school placement was proper under the [IDEA].” Id.; see also 17 Ashland Sch. Dist. v. R.J., 588 F.3d 1004, 1009 (9th Cir. 2009) (courts may grant reimbursement 18 “only when a school district fails to provide a FAPE and the private-school placement is 19 appropriate.”) (internal quotations and citation omitted). “The latter requirement is essential to 20 ensuring that reimbursement awards are granted only when such relief furthers the purposes of the 21 [IDEA].” Ashland Sch. Dist. 588 F.3d at 1009 (internal quotations and citation omitted). 22 To be “proper” within the meaning of the IDEA, a private placement need not comply with 23 IDEA requirements for a FAPE, or with state educational standards. Carter, 510 U.S. at 13-14. 24 Moreover, “parents need not show that a private placement furnishes every special service 25 necessary to maximize their child’s potential.” C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 26 1155, 1159 (9th Cir. 2011) (citation and emphasis omitted). Rather, parents “need only 27 demonstrate that the placement provides educational instruction specially designed to meet the 1 benefit from instruction.” Id. (citation omitted). 2 In the present case, the Court found that the District denied N.N. a FAPE during the 2017- 3 2018 school year by delaying a special education assessment. The parties dispute the propriety of 4 plaintiffs’ requested reimbursement for services and placements, as well as associated 5 transportation expenses, incurred across all three school years—namely, costs of mental health 6 services provided by the Children’s Health Council (“CHC”) in Palo Alto, California in March- 7 April 2018; N.N.’s placement at the Second Nature Wilderness Program (“Second Nature”) in 8 Utah over the summer of 2018; and her placement at the Explorations residential program in 9 Montana during her junior and senior years (2018-2019 and 2019-2020, respectively). 10 Additionally, the District maintains that reimbursement is not appropriate because the services and 11 programs in question primarily addressed N.N.’s mental health issues, rather than her educational 12 needs. 13 The Court agrees with the District that there should be no reimbursement of expenses 14 incurred in the academic years for which the Court found no violation of the IDEA. Plaintiffs 15 posit that the delay in assessing N.N. during her sophomore year impacted the trajectory of the 16 remainder of her high school career. However, they have not convincingly demonstrated that 17 reimbursement for expenses incurred during the school years 2018-2019 and 2019-2020 furthers 18 the purposes of the IDEA, particularly in view of the Court’s finding that N.N. did not need 19 special education services. 20 Moreover, the Court is not persuaded that the private services and placements for which 21 plaintiffs seek reimbursement provided “educational instruction specially designed to meet 22 [N.N.’s] unique needs . . . supported by such services as are necessary to permit [her] to benefit 23 from instruction.” C.B., 635 F.3d at 1159 (emphasis added). The services T.T. obtained for N.N. 24 addressed only her mental health needs, and did not support the provision of any specially 25 designed educational instruction. See id. With respect to CHC, N.N. voluntarily chose to attend 26 the CHC intensive outpatient program, rather than go to the continuation school offered by the 27 District. See Dkt. No. 69 at 7; AR 1823:17-21, 1824:2-15, 2119:22-25, 2120:10-14, 2122:4-8. 1 acknowledge that the primary focus of the outpatient program was to stabilize N.N.’s mental 2 health and “may be determined to be more ‘medical’ in nature[.]” Dkt. No. 75 at 4. Indeed, 3 N.N.’s CHC therapist Jennifer Leydecker stated that CHC’s priority is to stabilize a child’s mental 4 health, and CHC refers families back to the school for “school-based things[.]” AR 1475:21- 5 1476:7. 6 Plaintiffs nevertheless maintain that the Second Nature and Explorations programs were 7 necessary for N.N.’s educational progress. “When confronted with the necessity for residential 8 placement where the need involves a mixture of educational and noneducational concerns, the 9 courts have struggled to develop tests to determine when the special education system is 10 responsible for the costs of the placement.” Cnty. of San Diego v. Cal. Special Educ. Hearing 11 Office, 93 F.3d 1458, 1468 (9th Cir. 1996). The Ninth Circuit has identified three possible tests 12 for when to impose responsibility on the District for residential placements: “(1) where the 13 placement is ‘supportive’ of the pupil’s education; (2) where medical, social or emotional 14 problems that require residential placement are intertwined with educational problems; and 15 (3) when the placement is primarily to aid the student to benefit from special education.” Id. 16 (citing Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635, 643 (9th Cir. 17 1990)). Because “[a]ll medical services are arguably ‘supportive’” of a disabled child’s education, 18 “mere ‘supportiveness’ is too broad a criterion to be the test for whether a specific service is 19 necessary under the [IDEA] to assist a child to benefit from special education.” Clovis, 903 F.2d 20 at 643. Additionally, the Ninth Circuit has rejected the proposition that schools are responsible for 21 the entire cost of a placement simply because issues that require hospitalization create or are 22 intertwined with educational problems. Id. Instead, courts must focus their analysis “on whether 23 [the student’s] placement may be considered necessary for educational purposes, or whether the 24 placement is a response to medical, social, or emotional problems that is necessary quite apart 25 from the learning process.” Id. 26 With respect to the Second Nature program, the weight of the evidence demonstrates that 27 N.N.’s placement primarily was a response to her mental health issues, not her educational needs. 1 enrolled N.N. in Second Nature; and N.N. left California for that program two days later on May 2 17, 2018. AR 287, 289, 295, 2434:16-23. When the District subsequently tried to schedule an 3 assessment, T.T. requested that testing be conducted in Utah, noting that for N.N.’s “safety,” she 4 was not able to return to California for testing. AR 962. As described by N.N.’s Second Nature 5 treating psychologist Dr. Cody Schueler, Second Nature focuses on clinical, rather than 6 educational, support. See AR 313 (“Second Nature is a licensed adolescent treatment program that 7 utilizes the experiential opportunities of a wilderness setting with a clinically focused 8 intervention.”). Although N.N. earned several school credits while at Second Nature (see Dkt. No. 9 69 at 10; AR 1025, 2445:25-2446:5), there is no evidence indicating what educational services or 10 instruction, if any, she received while she was at that program. 11 Similarly, with respect to Explorations, the evidence demonstrates that the focus of N.N.’s 12 placement primarily was to address her mental health issues. See Ashland, 588 F.3d at 1010 (the 13 court’s “analysis must focus on whether [the residential] placement may be considered necessary 14 for educational purposes.”) (citing Clovis Unified Sch. Dist., 903 F.3d at 643). When N.N. was 15 discharged from Second Nature, Dr. Schueler noted that “[s]chool accommodations and a more 16 individualized instruction plan will be important for academic success,” but recommended 17 residential treatment principally out of a concern for N.N.’s risk of relapse in depressive 18 symptoms, defiant behavior, and substance abuse, and to give N.N. an opportunity to “practice and 19 internalize the tools she learned at Second Nature.” See Dkt. No. 69 at 12-13; AR 315. 20 As noted in the Court’s prior order, Explorations is not licensed as a residential treatment 21 center, nor is it licensed as a school. It does not have a special education teacher on its staff, and 22 does not provide a school as part of its program. See Dkt. No. 69 at 14; AR 2231:25-2232:5; 23 2233:5-13. While those facts are not necessarily dispositive of the question whether 24 reimbursement may be appropriate, Explorations founder and director, Penny James, indicated that 25 the program’s primary goal is to ease a student’s transition back to a less restrictive setting, by 26 providing the student with the opportunity “to practice in normative life things for a portion of 27 their day” and “a therapeutic environment, where they can process [those experiences], receive 1 N.N., were required to attend weekly group therapy sessions that typically last around two hours. 2 See AR 1852:13-17; 1864:4-6; 1975:1-18; 2180:10-11. Additionally, at least once per week, N.N. 3 was required to attend individual therapy sessions that also included family therapy/therapeutic 4 phone calls with parents. See AR 1976:16-25; 2180:11-16. N.N.’s therapy at Explorations 5 focused on her depression and anger, her interaction with peers, and her family relationships, as 6 well as self-advocacy skills, post-high school plans, and developing skills to efficiently and 7 effectively work toward goals. See AR 1853:9-1854:9; 1977:3-9; 1991:17-1992:5. 8 While N.N. was required to attend the Explorations study hall several times per week and 9 to meet weekly with Ms. Johnston, who supervised the study hall, N.N. received her education at a 10 local public high school, where she attended regular education classes during the day without 11 Explorations staff present. See AR 2179:16-17, 24-25; 2180:3-5; 2216:4-9. Moreover, 12 Explorations staff that provided N.N.’s therapeutic services generally did not address her academic 13 affairs. For example, N.N.’s therapist, Bruce Boudousquie, testified that he did not discuss N.N. 14 with the local public high school staff and generally left academic matters for Ms. James or Ms. 15 Johnston to address. AR 1993:4-9; AR 2006:33-2007:17; 2007:23-2008:1. Similarly, N.N.’s 16 therapist Amy Henderson testified that she did not regularly consult or speak with Ms. Johnston 17 about N.N.’s needs in school, except “just briefly a couple of times,” as “more of a check-in.” 18 AR 1857:3-13; 1873:10-18. And while Ms. Johnston recommended a speech pathology 19 evaluation for N.N., she testified that she normally recommends such an evaluation for any student 20 who demonstrates a reluctance to read, and Ms. Johnston did not follow up on that 21 recommendation because it was “more of a therapeutic process” that was “outside of [her] 22 purview.” AR 474; 2037:13-18, 2040:3-6. 23 Plaintiffs maintain that, in evaluating the propriety of a private placement, the “educational 24 instruction” component of the standard adopted by the Ninth Circuit in C.B. should not be 25 construed narrowly. While it is true that reimbursement may be awarded for services and 26 programs that are not strictly “academic,” the cases on which plaintiffs principally rely are 27 distinguishable. In Union Sch. Dist. v. Smith, the Ninth Circuit concluded that the parents were 1 education. However, Smith turned on specific California statutes, applicable to three- to five-year 2 old students, providing that such students “when appropriate, may be placed in a program that 3 only provides [Designated Instruction and Services] without simultaneous special education.” 4 15 F.3d 1519, 1527 (9th Cir. 1994). In the A.P. decisions cited by plaintiffs, the district court 5 permitted at least partial reimbursement for tuition at a private facility described as “a school 6 which specializes in educating students with twice-exceptional profiles,” as well as part of the 7 costs for private “therapeutic counseling support services.” See A.P. v. Pasadena Unified Sch. 8 Dist., No. CV 19-7965-MWF (SSx), 2021 WL 810416, at *3, *12 (C.D. Cal. Jan. 26, 2021); see 9 also A.P. v. Pasadena Unified Sch. Dist., No. CV 19-7965-MWF (SSx), 2021 WL 5249658 (C.D. 10 Cal. Aug. 24, 2021). Although the private counseling services the student received were not 11 delivered as part of her private educational placement, A.P’s parents indicated that those services 12 were necessary to support her placement at the private school, A.P., 2021 WL 810416 at *12; and 13 the district court concluded that the counseling costs “would not have been incurred by Parents 14 had the District timely assessed and offered these services to Plaintiff” as part of an IEP, A.P., 15 2021 WL 5249658, at *4. Other cases cited by plaintiffs similarly concerned reimbursement for 16 private placements that included some educational component. See, e.g., Seattle Sch. Dist. No. 1 17 v. B.S., 82 F.3d 1493, 1502 (9th Cir. 1996) (affirming school district’s responsibility for costs of 18 student’s placement at a private “accredited educational institution”), abrogated in part on other 19 grounds by Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56-58 (2005); Dep’t of Educ. v. L.S., 20 No. 18-cv-00223 JAO-RT, 2019 WL 1421752, at *14 (D. Haw. Mar. 29, 2019) (finding that 21 placement in a private “therapeutic day program” was appropriate for purposes of reimbursement 22 under the IDEA, noting that while it “is not an academic institution, the program incorporated 23 some academic subjects, including math, English, and science.”). 24 The Ninth Circuit’s decision in County of San Diego v. Cal. Special Educ. Hearing Office, 25 93 F.3d 1458 (9th Cir. 1996) does not compel a contrary conclusion. The key issue in that case 26 was not whether the school district’s day program placement was reasonably calculated to provide 27 the student with education benefit, but whether the services provided by that placement were 1 residential treatment was necessary for the student, who was hospitalized for “violent outbursts 2 related to” her schoolwork; and, the Ninth Circuit noted that while she had “difficulties” that “are 3 || related to noneducational problems,” the student’s “primary problems are educationally related.” 4 || See id. at 1462, 1468. 5 Here, by contrast, while there is evidence that N.N.’s mental health issues affected her 6 || learning (see, e.g., AR 281), the weight of the evidence demonstrates that N.N.’s problems were 7 || not primarily educationally related and the services in question did not include any educational 8 component. Both Second Nature and Explorations provided mental health therapy services, with 9 || no educational instruction. As discussed in the Court’s prior order, during her junior and senior 10 || years, N.N. did well overall in her regular education program at the Montana public high school, 11 with minimal resort to 504 accommodations that were virtually identical to the ones provided by 12 LAHS. See Dkt. No. 69 at 24-31, 57-69. For these reasons, the expenses for which plaintiffs 13 request reimbursement are not recoverable under the IDEA. 14 Accordingly, the Court denies plaintiffs’ request for retmbursement. 3 15 IT IS SO ORDERED. a 16 Dated: March 31, 2023

18 Uniaiuian Le Marcle:

VIRGINIA K. DEMARCH

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28