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Avila v. Spokane School District #81

United States District Court, E.D. Washington

January 29, 2018

MIGUEL & BARBARA AVILA, Plaintiffs,
v.
SPOKANE SCHOOL DISTRICT #81, Defendant.

          AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

          EDWARD F. SHEA, SENIOR UNITED STATES DISTRICT JUDGE

         I. Introduction

         This matter is before the Court on remand from the Court of Appeals for the Ninth Circuit. On November 13, 2014, this Court issued its Findings of Fact, Conclusions of Law, and Order and directed the Clerk's Office to enter judgment for Defendant Spokane School District. ECF No. 116. On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded to the Court for additional proceedings on two of the Avilas' substantive claims. See ECF Nos. 130 & 131. Specifically, the Ninth Circuit instructed the Court to make findings as to when the Avilas “knew or should have known about the alleged action[s] that form[] the basis” of their complaint and to apply its articulation of the relevant statute of limitations. See ECF No. 131 at 19 (quoting 20 U.S.C. § 1415(f)(3)(C)).

         The Court has fully considered the issues and legal authority presented by the parties, the testimony of the witnesses, the admitted exhibits, the arguments of both parties, the parties' briefs, the parties' proposed findings of fact and conclusion of law, the Administrative Record in Special Education Cause No. 2010-SE-0040, the Administrative Record in Special Education Cause No. 2010-SE-0044, and the Administrative Record on remand Cause Nos. 2010-SE-0040R and 2010-SE-0044R.

         As set out below, the Court amends its prior Order, ECF No. 116, but nonetheless holds that the Avilas' remaining claims are barred by the IDEA's statute of limitations.[1] See 20 U.S.C. § 1415(f)(3)(C). Accordingly, the claims are dismissed with prejudice, and the Clerk's Office is directed to enter judgment for the Spokane School District.

         II. Procedural History

         Plaintiffs Miguel and Barbara Avila (the Avilas) are the parents of G.A., a special-education student at an elementary school within the Spokane School District. On January 28, 2010, the District informed the Avilas that the District proposed to initiate a reevaluation of G.A.'s continued need for special-education services. During February and March 2010, the District conducted its reevaluation of G.A., completing it in April 2010. The Avilas were unhappy with the District's evaluation of G.A., and on April 19, 2010, they requested an independent educational evaluation (IEE) of G.A. at the District's expense. On May 3, 2010, pursuant to WAC 392-172A-05005(2)(c)(i), the District refused the Avilas' request and initiated a due process hearing with the Washington State Office of the Superintendent of Public Instruction (OSPI) to show that its evaluation was sufficient. The state Office of Administrative Hearings (OAH) assigned Cause No. 2010-SE-0044 to the District's due process request, and the matter was promptly assigned to Administrative Law Judge (ALJ) David G. Hansen. Separately, on April 26, 2010, the Avilas also filed a request for a due process hearing with the OSPI, the OAH assigned Cause No. 2010-SE-0040 to the due process request, and the matter was assigned to ALJ Hansen.

         On June 2, 2010, by agreement of the parties, ALJ Hansen consolidated both due process hearings. On July 19, 2010, the first day of the consolidated hearing, the Avilas began asserting what they perceived to be procedural violations of the Individuals with Disabilities Education Act (IDEA), primarily in the form of the District failing to provide Prior Written Notice (PWN). However, the Avilas had not specifically raised PWN as an issue at the prehearing conference, mistakenly believing that generally asserting the District violated the IDEA was sufficient to put the District on notice of alleged PWN violations. The ALJ found that the Avilas had not sufficiently advised the Court or the District of the alleged PWN violations and accordingly severed the Avilas' due process claims for a separate hearing.

         On July 20 and 21, 2010, the due process hearing resumed solely regarding the 2010 evaluation of G.A. and whether an IEE was required at the District's expense. On August 25, 2010, in Cause No. 2010-SE-0044, ALJ Hansen issued his Findings of Fact, Conclusions of Law, and Order, holding that the District's “reevaluation of [G.A.] was appropriate and that [the Avilas] are not entitled to an [IEE] at the District's expense.” AR44 at 27.[2]

         A subsequent due process hearing in Cause No. 2010-SE-0040 took place from October 25, 2010, through October 29, 2010, and from November 16, 2010, through November 18, 2010. On February 1, 2011, ALJ Hansen issued his Findings of Fact, Conclusions of Law, and Order, in which he made the following conclusions: (1) the Avilas' claims lacked merit; (2) the statute of limitations barred any allegation arising before April 26, 2008; (3) the District had not violated the IDEA; and (4) G.A. had not been denied a free appropriate public education (FAPE). See AR40 at 46-79.

         On November 19, 2010, the Avilas appealed the decision in OAH Cause No. 2010-SE-0044. The appeal was assigned to Cause No. CV-10-00408-EFS. Separately, on April 27, 2011, they appealed the decision in OAH Cause No. 2010-SE-0040, which was assigned Cause No. CV-11-00165-EFS. On June 7, 2011, this Court consolidated both cases under Cause No. CV-10-0408-EFS. On December 5, 2011, the Avilas filed an Amended Complaint addressing both appeals.

         On March 14, 2013, the Court issued a limited remand of the case to ALJ Hansen to consider the Avilas' new evaluation of G.A. and their post-hearing brief, which had not been included in the administrative record. On May 24, 2014, ALJ Hansen issues a new Findings of Facts, Conclusion of Law, and Order addressing the remand. In OAH Cause No. 2010-SE-0040R[3] ALJ Hansen found that the post-hearing brief would have been submitted to him and therefore he must have reviewed the brief in reaching his findings. Accordingly, he did not hold a new hearing on that matter. However, in OAH Cause No. 2010-SE-0044R, ALJ Hansen conducted an in-person hearing on May 17, 2013, to consider new evidence and take additional testimony. Still, the ALJ found the March 7, 2012 assessment had no bearing on, nor affected the appropriateness of, the District's April 28, 2010 reevaluation.

         On May 19, 2014, the consolidated cases came back to this Court for an evidentiary hearing and final arguments. ECF No. 115. The following witnesses testified in open court: Barbara Avila, Cori Valley, Barbara Tomkins, Paul Fawcett, and Nicole Herzog. On November 13, 2014, the Court issued its Findings of Fact, Conclusions of Law, and Order, dismissing the Avilas' claims. ECF No. 116.

         The Avilas appealed, and the Court of Appeals for the Ninth Circuit affirmed this Court's decision in part and reversed it in part. See ECF Nos. 130 & 131. Specifically, it affirmed this Court's conclusion that the District's 2010 reevaluation of G.A. was appropriate and did not merit an independent educational evaluation at the District's expense. See ECF No. 130 at 2. It reversed this Court's application of the IDEA's statute of limitations and subsequent conclusion that the Avilas' pre-April 2008 claims were time-barred. ECF No. 131 at 5. The Court of Appeals further clarified that the two-year statute of limitations is governed by the “discovery rule.” See ECF No. 131 at 18. On remand, it instructed the Court to make findings as to when the Avilas “knew or should have known” about the alleged actions underlying their claim and apply the statute of limitations accordingly. See ECF No. 131 at 19; 20 U.S.C. § 1415(f)(3)(C).

         Although the Avilas seemingly wish to reassert many of their prior claims, the Court of Appeals expressly characterized the Avilas' surviving claims as follows: (1) that the District allegedly denied G.A. a FAPE by failing to identify him as a child with a disability in 2006; and (2) that the District allegedly denied him a FAPE by failing to assess his suspected disability in 2006 and 2007. ECF No. 131 at 5-6.[4]

         III. Findings of Fact[5]

         The Court makes the following findings of fact:

1. Plaintiffs Miguel and Barbara Avila are the parents of G.A., a special-education student at an elementary school within the Spokane School District.
2. On October 10, 2006, the District received a referral for special-education evaluation from the Avilas, in which the reason for referral was marked “Behavior.” AR40 at 671. As the document shows, this initial evaluation was initiated by the Avilas, not the District.
3. In response, on October 12, 2006, the District mailed the Avilas a “Permission for Evaluation (Preschool)” form. AR40 at 669. This form stated that G.A. may be eligible for special-education services and requested the Avilas' permission to conduct an evaluation of G.A., which they signed in November of 2006, consenting to the evaluation.
4. The initial evaluation was completed by Nicole Herzog, School Psychologist, on December 12, 2006, finding G.A. was not eligible for special-education services. AR40 at 674-80. This evaluation was provided to the Avilas on January 3, 2007. AR40 at 673. On the same day, Barbara Avila signed the “Special Education Eligibility Determination” noting she was in agreement with the findings. AR40 at 672.
5. As of October 24, 2007, G.A. was not receiving special-education services under the IDEA but was instead receiving education services under Section 504 of the Americans with Disabilities Act.
6. As of October 2007, Dr. Kristi Rice diagnosed G.A. with Asperger's Syndrome. AR40 at 706. On December 12, 2007, the Avilas completed a “Child Find Referral, ” requesting the District conduct a special-education evaluation of G.A. AR40 at 701. On December 17, 2007, the Avilas again signed a “Permission For Evaluation” consenting to the District conducting another evaluation to determine G.A.'s eligibility for educational assistance. AR40 at 705. On April 14, 2008, Elisa Ferraro, School Psychologist, issued an initial evaluation of G.A., finding he qualified for special-education under the eligibility category of Autism. AR40 at 681-91. On April 25, 2008, an Individualized Education Program (IEP) Team meeting was held and Barbara Avila signed a “Special Education Eligibility Determination” agreeing to the evaluation's recommendation of providing special designated instruction to improve written language skills and to improve social and behavior skills. AR40 at 693, 2052.
7. In advance of the April 25, 2008 meeting, the District provided a document labeled “Prior Written Notice, ” which informed the Avilas that the District was proposing to initiate an educational placement for special-education services and would replace the 504 Plan. AR40 at 1941. This notice included a description of the action proposed; an explanation of why the District proposed the action; a description of each evaluation procedure, test, record, and report used as the basis for the action; a description of the options considered and rejected; and why that option was rejected. AR40 at 1941.
8. Also starting in October 2007, G.A. was on a Behavior Intervention Plan. AR40 at 832. During December 2007, the Avilas participated in the preparation of a Section 504 Student Accommodation Plan and agreed to the Student Accommodation Plan, which aimed to accommodate G.A.'s Asperger's Syndrome and was later amended to include G.A.'s Anxiety Disorder. AR40 at 829-30. The Avilas were then informed of their and G.A.'s rights under the 504 Plan. AR40 at 831.
9. During May 2008, part of the 504 Plan included aversive therapy, which was removed at the Avilas' request and replaced by a time-out procedure. AR40 at 834.
10. After the April 25, 2008 IEP team meeting, five subsequent meetings between the Avilas and the IEP team occurred on the following dates: May 22, 2008; October 7, 2008; October 9, 2008; November 17, 2008; and December 2, 2008. After the May 22, 2008 meeting, the Avilas elected to review the IEP before deciding whether to sign it. AR40 at 1943. After the subsequent meetings between October 7, 2008, and November 17, 2008, the Avilas did not sign the IEP. AR40 at 1950-70. As of December 4, 2008, they still had not approved the IEP. AR40 at 1971.
11. By December 2008, the District determined G.A. was eligible for special-education services under the IDEA and an appropriate IEP was developed, placing G.A. in the District's ADAPT program. Accordingly, G.A. was no longer eligible for the 504 Plan. The District's December 9, 2008 letter to the Avilas advised them that the 504 Plan was being terminated and replaced with the IEP. AR40 at 1076.
12. Between December 2008 and February 2009, the Avilas and the District met and corresponded, continuing to discuss possible mediation of their disagreements on the IEP as well as the available options for providing an education to G.A. AR40 at 1077-82.
13. On January 20, 2009, the District provided a “Prior Written Notice, ” advising the Avilas of the District's refusal to initiate an IEE because it believed the earlier April 2008 evaluation was sufficient. AR40 at 1982.
14. In February 2009, the Avilas requested that G.A. be provided an Instructional Assistant (IA) on a one-on-one basis. On February 3, 2009, the IEP team met, discussing the ADAPT program and the Avilas' request for a one-on-one IA. On February 5, 2009, the District provided both a letter, AR40 at 1984, and a Prior Written Notice, AR40 at 1985, advising the Avilas that the District was refusing to provide a one-on-one IA, explaining an IA was already provided as part of the ADAPT program and would meet G.A.'s educational needs.
15. The record shows that in early February 2009, the Avilas agreed to the IEP, and G.A. began attending the ADAPT program. AR40 at 788-92; 1151.
16. The ADAPT program was specifically designed by the District for students with Asperger's Syndrome.
17. As of September 29, 2009, the record shows G.A. “had a very successful year in the program last year by all accounts from staff and school reports.” AR40 at 1090.
18. From 2007 through 2009, G.A. had numerous behavior problems, some of which resulted in removal or suspension. At no time did the suspensions amount to ten or more days. AR40 at 850; 1987-91.
19. In the fall of 2009, G.A. was suspended on at least two occasions, over the Avilas' appeals. AR40 at 1987-2003.
20. On November 20, 2009, the Avilas made a request for a Manifestation Determination meeting. On November 25, 2009, the District sent them a document titled “Prior Written Notice, ” indicating that the District was refusing to initiate a Manifestation Determination meeting, and explaining that one was not required because G.A. had not been suspended over ten days. AR40 at 2004.
21. On January 28, 2010, the District informed the Avilas in another document titled “Prior Written Notice” that the District was proposing to initiate a reevaluation of G.A. AR44 at 415. The notice described the District's proposed action, the reason for proposing the action, a description of other options considered and rejected, the reasons for rejecting those options, and a description of each evaluation procedure, test, record, or report the District used or planned to use. AR44 at 415.
22. On January 28, 2010, the IEP Team, including the Avilas, completed a “Review for Reevaluation, ” giving permission for the District to conduct a reevaluation of G.A. to determine if he would continue to need special-education and related services in the goal areas of writing skills, behavior, and social skills. AR44 at 414.
23. During February and March 2010, the District conducted a reevaluation of G.A. When changes in the proposed evaluation were suggested by the District, the District provided the Avilas a “Prior Written Notice.” AR40 at 2008.
24. In early February 2010, the Avilas requested G.A. be tested in areas of executive functioning, dyslexia, dysgraphia, visual processing, auditory processing, sequential processing, processing speed, and conceptual processing. On April 12, 2010, the District advised the Avilas in a “Prior Written Notice” that the District was refusing to initiate their requested testing because the District's April 2010 evaluation results ...

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