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Forest Grove School District v. Student

United States District Court, D. Oregon, Portland Division

November 27, 2018

FOREST GROVE SCHOOL DISTRICT, Plaintiff,
v.
STUDENT, Defendant, STUDENT, Counter Claimant,
v.
FOREST GROVE SCHOOL DISTRICT, Counter Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA, United States Magistrate Judge.

         Introduction

         Plaintiff-Appellant-Counter Defendant Forest Grove School District ("the District") seeks review of a December 18, 2013 Final Order by Administrative Law Judge Joe L. Allen ("the ALJ" or" ALJ Allen") finding the District in violation of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1401 et seq. Defendant-Appellee-Counter Claimant Student ("Student") cross-appeals, and asks the court to uphold the ALJ's Final Order and seeks an award of attorney fees and costs. For the reasons that follow, the court affirms in part and reverses in part the ALJ's Final Order.

         Procedural Background

         This is the second due process hearing between the parties. On December 6, 2011, Parents, on behalf of Student, filed a due process hearing request (DP 11-131) with the Oregon Department of Education. That hearing involved Student's 2009-2010, 2010-2011, and portions of the 2011-2012 academic years. Administrative Law Judge Jill Messecar ("ALJ Messecar") issued a Final Order in DP 11-131 on September 12, 2012. On October 12, 2012, the District appealed the Final Order in DP 11-131 to this Court (Forest Grove School District v. Student, No. 3:12-cv-01837-AC).

         While the appeal of DP 11-131 was pending, Parents, [1] on behalf of Student, filed the present due process hearing request (DP 13-104) on March 5, 2013, and an amended due process complaint August 9, 2013. Beginning September 23, 2013, ALJ Allen held three days of hearings on DP 13-104, and issued a Final Order on December 18, 2013.

         On March 18, 2014, the District filed an appeal of Final Order DP 13-104 (No. 3:14-cv-00444-AC, Compl., ECF No. 1-1, hereinafter "Final Order"). Simultaneously, Parents filed a separate Complaint and Petition for attorney fees, expenses, and costs in pursuing DP 13-104 (No. 3:14-cv-00445-AC, Compl., ECF No. 1). Parents also requested attorney fees and costs in this case. In an April 12, 2018 Opinion and Order, the court determined that attorney fees are not relevant to resolution of the merits in this case, and that attorneys fees would be resolved in No. 3:14-cv-00445 in due course. (Op. & Order 6, ECF No. 61.)

         On June 9, 2014, the Court issued an Opinion and Order on DP 11-131, affirming in part and reversing in part the findings and legal conclusions reached by ALJ Messecar. (Op. & Order, Case No. 3:12-cv-01837, ECF No. 41, available at, Forest Grove Sch. Dist. v. Student, 2014 WL2592654 (D. Or. June 9, 2014.)) On June 30, 2014, Student appealed DP 11-131 to the Ninth Circuit. Meanwhile, the court entered a stay in this case (and Case No. 3: 14-cv-00445-AC) pending Student's appeal of DP 11-131. On December 5, 2016, the Ninth Circuit affirmed this court's Opinion and Order concerning DP 11-131. Forest Grove Sch. Dist. v. Student, 665 Fed.Appx. 612 (9th Cir. 2016).

         Factual Background of DP 13-104

         In the current DP 13-104, Student complains of the District's actions beginning December 6, 2011. Because there is some overlap of issues and facts with DP 11-131, the court discusses general background facts about Student as well as facts pertinent to DP 13-104 beginning in November 2011.

         The District convened an IEP team meeting on November 3, 2011. (Ex. S8.)[2] After the meeting, Parents emailed the District copies of two reports; a report from Speech Language Pathologist Robert Buckendorf dated August 2011, and a report from child psychiatrist Ken Ensroth, M.D., dated October 2011. (Ex. D2.) The IEP team met again on November 14, 2011 to finalize revisions to Student's IEP. (Ex. S10.) The November 2011 IEP provided specially designed instruction in transition reading, writing, and transition math, and that Student receive one hour per week of speech and language therapy. Forest Grove, 2014 WL 2592654, at *7. The November 2011 IEP detailed certain supplementary aids, services, accommodations and modifications for Student, including: visual supports for classwork assignments and homework; modified tests and assignments in all general education classes; and copies of notes following adult prompts. Student also was to have essay questions modified on proficiency tests and test questions read aloud. Id. The November 2011 IEP team placed Student in a combination of special and general education classes with pull-out for tutorial services and speech and language services because it allowed Student to develop social skills in general education classes while maintaining access to special education instruction. Id.

         Parent communicated frequently with Student's teachers, case manager, and other District staff. At some point, the District determined Parent's communication became excessive. On November 10, 2011, Kimberley Shearer, the District's Special Education Coordinator, sent an email to Parent indicating that the District was having difficulty responding to Parent's multiple requests and assessing which requests were necessary to the ongoing IEP process. (Ex. D27.) Ms. Shearer put in place a "communication protocol" to ensure effective communication. Id. Ms. Shearer requested that Parent summarize her concerns and consolidate them into a single, weekly email to be directed solely to Kathryn Taplin, Student's then case manager. Id. Ms. Shearer indicated that Ms. Taplin would open only the most recent email sent on Friday afternoons, and respond to Parent's concerns that Friday. Id. At the hearing, Ms. Shearer testified that she had more communication with Parent than any other Parent. (Tr, 287-88.)

         On December 6, 2011, Parents filed a due process hearing request (DP 11-131) challenging the November 2011IEP, (Ex. S33.) On January 24, 2012, the District denied Parent's request for an instructional assistant in all of Student's classes because having an instructional assistant in every class was not in the November 2011 IEP. (Ex. S11, ) At that time, Student did have an instructional assistant in a couple of her general education classes, including Biology and American Studies. (Ex. D17 at 3, Tr. 649, 1056-57.) On January 26, 2012, Parent emailed Forest Grove School District Superintendent Yvonne Curtis inquiring about the District's refusal to discuss Student's math class placement and discuss Student's upcoming semester schedule, (Ex. S12.)

         On March 8, 2012, Parent emailed Ms. Taplin to request that notes from an instructional assistant be given to Student to take home to study, instead of being kept in a folder in Student's tutorial class. (Ex. S18.) Parent also indicated a preference that Student receive notes before class to follow along while being instructed. (Ex. SI8.) At the hearing, Parent testified that Student's receipt of notes improved, but that Student was not receiving them 100 percent of the time. (Tr. 891-92.) Parent also testified that Student was not having her test questions read aloud, that the instructional assistant was not available to provide that service, and that the teacher refused to read Student the test questions aloud. (Tr. 975-76.)

         Beginning April 16, 2012, ALJ Messecar convened a due process hearing on DP 11-131, which continued over the course of 12 days, concluding on June 29, 2012. On May 16, 2012, Parent emailed Ms. Taplin requesting information about Student's schedule for the following year, as well as inquiring about which teachers and courses would be appropriate for achieving Student's writing goals, Student's entitlement to literary instruction, and services. (Ex. S20.) In response to Parent's request, Ms. Shearer, on behalf of the District, responded that they were in "stay put" as a result of ongoing due process hearing, and that the District would not normally be holding an IEP. (Id.) Ms. Shearer also indicated that the IEP team did need to meet to discuss whether Student qualified for Extended School Year ("ESY") services over the 2012 summer break. (Id.) Parent forwarded Ms. Shearer's response on May 17, 2012 to Ms. Taplin, requesting that the IEP team meeting discuss 2012 ESY services, Student's class scheduling, and transition services. (Id.) Parent also requested regression and recoupment data prior to the ESY IEP team meeting and Parent indicated a desire to discuss reading, writing, speech and math. Id. Parent refused to provide potential dates for the ESY meeting until receipt of the regression and recoupment data. (Id.)

         On May 18, 2012, Ms. Shearer responded to Parent that a full IEP review would not occur at the upcoming meeting but needed to wait until the annual November 2012 meeting. (Ex. S21.) Ms. Shearer also stated that student schedules could not be discussed at the ESY team meeting because forecasting and bell schedules had not been completed, and could be discussed at a later date. (Id.) Ms. Shearer requested that all future communication and requests be directed through her. (Ex. S21 at 2.)

         On May 20, 2012, Parent emailed Ms. Shearer concerning the ESY regression and recoupment data and questioning the District's refusal to hold an IEP meeting. (Ex. S21 at 1.) Ms. Shearer then instructed Parent to direct all future discussions about ESY and IEP meetings through legal counsel (Ex. S21 at 1).

         On May 31, 2012, the District scheduled an IEP team meeting for June 8, 2012. (Ex. S24.) The agenda for the meeting centered on Student's ESY eligibility for summer 2012. (Ex. S25.) At the June 8, 2012 meeting, Parent wanted to discuss issues other than ESY, but the district refused. (Ex. S26.) The District explained the ESY criteria and presented the regression and recoupment data collected by Student's teachers over the 2011 -2012 winter break. Parent disputed the regression and recoupment data because it was presented in summarized form. Parent requested the underlying data, and asked the District to use summer break data to consider ESY eligibility, (Ex. S26 at 4-5.) Parent also requested that the District compare the present levels set forth in the March 2011 and November 2011 IEP's to determine eligibility. (Id.) The District determined that based on the winter break data, Student did not qualify for ESY because there was not greater than 10 percent regression in loss of skills or behaviors, (Exs. 26 at 5-6; Ex. 27.)

         On September 9, 2012 ALJ Messecar issued a Final Order, finding a number of procedural and substantive violations. In relevant part, ALJ Messecar determined that the District denied Parents the opportunity to meaningfully participate in Student's education and failed to provide Student a free and appropriate public education ("FAPE") in the 2011-2012 academic year. Forest Grove, 2014 WL 2592654, at *9-10. Notably, ALJ Messecar made the following conclusions of law:

1. District denied Parents the opportunity to meaningfully participate in the Student's education during the 2009-2010, 2010-2011, and 2011-2012 academic years, in violation of IDEA and its implementing Oregon Revised Statutes (ORS and Oregon Administrative Rules (OARs); and
2. District failed to identify Student as a student with a disability in all areas of disability during the 2009-2010, 2010-2011 and 2011-2012 academic years, in violation of the IDEA . . .;
3. District failed to evaluate Student in all areas of suspected disability during the 2009-2010, 2010-2011 and 2011-2012 academic years, in violation of the IDEA .
4. District failed to provide Student with a free appropriate public education (FAPE) during the 2009-2010, 2010-2011 and 2011-2012 academic years, in violation of the IDEA . . .;
5. District provided an appropriate placement for Student during the 2009-2010, 2010-2011 and 2011-2012 academic years.

         Forest Grove, 2014 WL 2592654, at *9-10. ALJ Messecar ordered that the District provide the following remedies:

(1) a comprehensive evaluation to determine Student's present levels; (2) an IEP meeting to draft a new IEP based on the comprehensive evaluation; (3) "two hours of direct transitional reading instruction for every week of instruction Student should have received between September 2010 and December 6, 2012"; (4) two hours of transition math instruction for every school week between September 2010 and December 6, 2012; (5) sixty minutes of anxiety counseling per week until Student turns 21; (6) a driver's education course; (7) Specially designed instruction which employs "the learning techniques described in the 2005 and 2008 evaluations... and described by Mr. Larsen in the November 2011 IEP"; and (8) training for District staff on IDEA protocol for writing and implementing IEPs.

Forest Grove, 2014 WL 2592654, at *10.

         Consistent with ALJ's Messecar's Final Order, on September 19, 2012, Student was scheduled for weekly counseling services with Teresa Mouw, the school Mental Health Specialist, on Tuesdays from 8:45 to 9:45 a.m. (Ex. S34.) On September 21, 2012, Parent was instructed to direct all her communications concerning the due process hearing and the ALJ's decision to the District's legal counsel. (Ex. S35.) On September 24, 2012, Parent sent an email to Ms. Shearer regarding changing Student's fall schedule to include life skills training. (Ex. S36.) Ms. Shearer responded that all communications regarding ALJ Messecar's order should be handled by legal counsel. (Ex. S36.)

         On September 27, 2012, Parent again emailed Ms. Shearer regarding payment for obtaining an evaluation for Student. (Ex. S37.) That same day, the District's attorney asked Parent's attorney to inform Parent not to contact the District staff about issues concerning the due process order, and that District staff had been instructed not to open Parent's emails, but instead to forward them to counsel (Ex. S37.) Parent continued to send emails to District staff On October 2, 2012, Ms. Shearer again instructed Parent to contact District counsel instead of instead staff. (Ex. S3 9.) On October 3, 2012, Parent again emailed Ms. Shearer (informing Shearer that "I do not take orders from your attorney"), and continued to inquire about matters covered in the due process order. (Ex. S39.) Later that day, the District's counsel informed Parent's attorney that due to the repeated and aggressive nature of Parent's emails, emails from Parent would be unopened, routed to "trash," and blocked. (Exs. S39, S42.) Thereafter, the District staff blocked Parent's email address. (Exs. S39, S42.)

         On October 4, 2012, Parent's attorney responded to the District's attorney, indicating that Parent apologized for the aggressive tone of her October 3rd email. (Ex. S39.) Parent's attorney indicated that counsel would not be involved in day-to-day communications between the District and Parent, but would handle meetings and schedules, and matters related to the due process order. (Ex. S39.)

         On October 2, 2012, Student was evaluated by Cynthia Arnold, Ph.D., for anxiety issues as part of the comprehensive independent education evaluation ("IEE") ordered by ALJ Messecar. (Ex. S38.) Dr. Arnold found that Student's academic skills are very impaired, and that her total achievement is extremely low. Dr. Arnold theorized that Student had received a lot of one-on-one help and remediation with her academic skills. However, Dr. Arnold indicated that Student's functional, novel use of information was quite limited. (Ex. S38 at 3.) Dr. Arnold diagnosed Student with Mild Mental Retardation, and noted that her testing did not support a primary anxiety disorder. (Id.)

         In early October 2012, Student had two incidents at school where she was crying in class. Ms. Mouw's October 9, 2012 progress notes from 8:45 a.m. reflect that Ms. Mouw attempted to engage Student in discussing why she was crying in Judith Bartoo's class; Student denied crying. (Ex. S41 at 1.) Ms. Mouw's progress notes from later that day at 1:10 p.m. indicate that she was asked by Ms. Taplin to meet again with Student because Student seemed confused, was repeating herself, and was having difficulty completing her work. (Ex. S41 at 2.) Student requested to return to class. (Id.) Parent discussed Student's behavior with two of her teachers, Ms. Bartoo and Jill Hertel via telephone on October 11, 2012. (Ex. S42 at 2.)

         On October 11, 2012, Student met with Dr. Ensroth at which time Parent expressed concerns about Student's behavior seeming increasingly forgetful and confused. (Ex. S44.) Dr. Ensroth's progress notes reflect that Student was pleasant, repeated herself, and was forgetful. (Id.) Dr. Ensroth's progress notes also reflect that Parent was frustrated with the lack of communication from teachers, but that Parent was able to reach Student's teacher via telephone. (Ex. S44 at 1.) Dr. Ensroth diagnosed an anxiety disorder, and recommended further psychological evaluation to rule out a thought process disorder. (Id. at 2.)

         On October 15, 2012, Dr. Ensroth wrote a letter indicating that he had recently seen Student, who showed signs of confusion, anxiety, and that without close monitoring, there was a risk of Student's symptoms worsening. (Ex. S46.) Dr. Ensroth noted Student's signs were not as severe as the year prior and he prescribed medication. (Id.) Dr. Ensroth recommended that school staff monitor Student closely, have a counselor available to speak with Student, and that school staff have regular and open communication with Parent. (Id.)

         On October 16, 2012, the District5 s attorney confirmed via email to Parent's attorney that the IEP team meeting would occur on November 13, 2012, (Ex. S 47, S48.) In that email, the District requested information pertinent to developing the new IEP, including Dr. Ensroth's letter and his treatment notes, and any other evaluations completed as part of the IEE orderd by ALJ Messecar so that proposed new present levels could be drafted and provided in advance of the November 13, 2012 meeting. (Id.) The District also advised that Parent was expected to follow the school's medication protocol for administering medications to Student, and that while a new communication protocol is established, Parent had permission to contact any high school administrator for any emergency involving Student. (Id.) On October 24, 2012, the District's attorney again contacted Parent's attorney about scheduling compensatory education, and indicated that Parent may contact any of Student's teachers regarding issues relating to the classroom and that Brad Bafaro, the Forest Grove Special Education Director, would handle any issues relating to special education. (Ex. S48 at 3.)

         In an Occupational Therapy evaluation completed on October 24, 2012, Student's scores on fine motor testing and dexterity were in the low to below average range, yet showed that Student had improved since her previous testing. (Ex. S50.) Direct occupational therapy services were not recommended. (Exs. D6, S50.)

         The IEP team met on November 13, 2012, to update Student's IEP. Parents and their attorney were present. The team had an opportunity to review the draft IEP prior to the meeting. (Ex. S51 at 2). The team discussed present level data in the areas reading, writing, and math, and noted that Student's progress in language and communication had been slow. (Id. at 2-3.) Parents asked whether the concept of time was taught in a functional capacity, and whether Student's confusion "episodes" were isolated instances or should be included in the IEP. (Ex. S51 at 3.) Parents requested that Dr. Ensroth's recommendations be included in Student's present levels. (Ex. S51 at 3.) Parents expressed concern about Student's daily living skills, staying on task, and socialization. (Ex. S51 at 4.) The team drafted a post-secondary goal with Parents' input. (Ex. S51 at 5.) The team broadly discussed functional reading, math, and community based living skills and agreed to postpone a decision on the IEP until Parents could review those goals. (Ex. S51 at 5-6.)

         The IEP team met again on November 27, 2012. At that meeting, the team discussed Student's present levels, and Parent expressed concern about Student's mental health. (Ex. S56 at 2.) Parent's attorney expressed a desire to have Occupational Therapy added into the IEP, and the team agreed to add any specific concerns into the accommodations portion of the IEP. (Ex. S56 at 3.) The team addressed Student's functional math goal and agreed to Parent's request to add as a baseline that Student does not understand the lapse of time. The team discussed Student's reading goals and that Student's baseline for vocabulary is zero percent. (Ex, S56 at 4.) With respect to the transition life skills of transportation and job applications, the team agreed to add as present level that Student has not demonstrated an ability to perform these activities independently. (Ex. S56 at 4.) The team discussed kitchen safety and work experience goals and whether those goals would be developed in the community or at school. (Ex. S56 at 5.) Parent inquired about Student's unit writing goal and expressed concern that they were not included in the draft IEP. (Ex. S56 at 5). Parent also asked that goal of self-advocacy and managing stress be added and a desire for Student to gain practical experience with those goals. (Ex. S56 at 5.) The team decided to implement the transition goals at the semester break on January 7, 2013. (Id. at 6.) Parent inquired about the appropriate placement for Student in work experience. (Id.) The November 2012 IEP included specially designed instruction ("SDI") in functional reading. (Ex. S57 at 16.)

         On January 18, 2013, Parent emailed Ms. Taplin with concerns about the November 2012 IEP. (Ex. S61.) Parent indicated that Student needed 4.5 credits to graduate, and therefore would not be graduating early. Thus, Parent expressed a desire for Student "to continue in academics throughout her transition years." (Ex. S61.) Parent requested that information about classes taught at the community transition house, and a list of businesses working with the District to provide transition skills. Parent also requested that Student's functional math goals be raised to include working with a calculator. (Ex, S61.) Parent indicated they wanted changes to Student's transition life skills goals, including that Student to use her iphone/ipad to track using the bus and schedule and eliminating kitchen safety goals. (Ex. S61.) Parent requested that Student return to Basic English to work on her reading and writing skills. (Ex. S61.) Parent asked for an IEP team meeting on February 4, 2013 to discuss Student's special education reading instruction. (Ex. S63.) Parent questioned the District's placement of Student in Treble Choir and New Careers, and requested that Student be placed in a special education New Careers class instead. (Ex. S63.)

         Student turned 18 years of age on January 31, 2013, and Parent was named legal guardian and educational surrogate. (Exs. S62, S87.)

         On February 8, 2013, the District's attorney responded to Parent's concerns, declining to hold an IEP meeting on February 4, 2013. The attorney indicated the transition goals spelled out in the November 2012 IEP had been in place for one month because the parties agreed to a January 7, 2013 implementation date, and the District believed the current IEP goals were appropriate. (Ex. S64 at 2.) Because of the volume of emails from Parent to District staff, the District's attorney advised Parent of the following protocol: (1) for day-to-day issues such as field trips, school pick-up, emergencies or health issues, Parent could continue to contact appropriate District staff and teachers; and (2) for issues relating to IEP changes, curriculum, and implementation, Parent should email once per week to Mr. Bafaro, and Mr. Bafaro would respond within three school days. (Ex. S64.)

         On February 27, 2013, Parent emailed Superintendent Curtis to request a meeting to discuss Student's health and safety. (Ex. S68 at 2.) Dr. Curtis responded that she was unable to meet due to ongoing litigation. (Ex. S68 at 2.)

         On March 4, 2013, Ms. Shearer informed Parent via email that they were scheduling an IEP team meeting for April 15, 2013, and that progress reports had been mailed. (Ex. S68.) On March 5, 2013, Parents requested a due process hearing in the instant action (DP 13-104).

         On March 13, 2013, Ms. Shearer requested Parent's input for the agenda items. (Exs. S69.) Parents responded with a list of twelve agenda items, including, ESY, Student driver's license, transitional reading and writing, work experience, and compensatory education. (Exs. S70, S73 at 3.) On April 10, 2013, the District responded to Parents, indicating that the IEP team meeting was not a full IEP review, but would cover ESY services for the summer, Student's functional reading goal, and consideration of new outside reports from Parents. (Ex. S73 at 1.) The District also sent a prior written notice indicating that the primary purpose of the April 15, 2013 team meeting was to discuss ESY eligibility, and any significant new information since the November 2012 meeting. (Ex. S74.)

         At the April 15, 2013 meeting, Parents requested that the IEP team revise the existing functional goals, add goals they believed were missing, and revise the transition goals to align with Student's present levels. Parents presented a list of their concerns at the April 15 meeting, including reviewing the regression and recoupment data, how speech was being delivered, changing Student5 s post-secondary transition goal to college academics (from college recreational) and competitive employment, changing Student's placement to general education from transitional education in reading and writing. Parents requested that two paragraphs they claimed were unfairly removed from the November 2011 IEP regarding how Student processes auditory information be reinserted in the November 2012 IEP. (Ex. S79.) At the meeting, Parents also presented graph charts comparing Student's present levels from the November 2011 IEP with the November 2012 IEP and progress notes from February 2013. (Exs. S81-84.)

         At the meeting, Parents noted that Student is meeting 100 percent of her functional math goals, and asked why Student continued to be placed in functional math. (Ex. S84 at 2.) Parents requested that Student be placed in a higher functioning community life skills class and wanted Student's goals to be more rigorous. (Ex. S84 at 3.) The team discussed that ESY data for work experience showed regression, and that Student was eligible for ESY in work experience. (Ex. S84 at 3.) Parents requested that Student's functional reading goal be revised and that Student be placed in academic reading and writing classes. (Ex. S84 at 4-6.) The team also discussed that Student was not independent in her transportation goal and Parents requested the goal be revised. (Id) The team decided that the functional reading goal would be revised, and draft language would be sent to Parents, that social stories would be added to the modification/accommodations page, and that Student qualified for ESY summer services. The team heard multiple concerns from Parents. (Ex. S84 at 6.)

         After the April 15, 2013 team meeting, Parent sent multiple emails continuing to express her disagreement that the IEP was not updated to reflect Parent's concerns about ESY, speech time specifics, the two statements about how Student best learns, a technology specific transition goal, and a nurse protocol. (Exs. S89, S90, S91, S92, S93.)

         On April 18, 2013, Ms. Taplin completed a Teacher Questionnaire for Student's Social Security disability application in which she indicated that Student's current instructional level for reading and math were at the second grade level and written language was at the third grade level, (Ex. S72 at 7.) Ms. Taplin indicated that Student has a "serious problem" (rated a four out of five) in all areas of acquiring and using information. (Ex. S72 at 8.) In the area of attending to and completing tasks, Ms. Taplin noted more varied responses, with some rated a two (a "slight problem") and others a five (a "very serious problem"). Of note, Ms. Taplin indicated that Student has a very serious problem in ability to work "without distracting self or others" and that Student is constantly distracted by others and has difficulty focusing. (Ex. S72 at 9.)

         On May 29, 2013, the District informed Parent that due to the continued disagreements, all future correspondence should be directed to the District's attorney. (Ex. S97.) On May 31, 2013, the District offered ESY services in three areas: work experience, reading, and speech/language. (Exs. S96, S98.) Parents continued to express that Student also qualified for ESY in the areas of math and writing. (Ex. S96.) On June 4, 2013, the District's attorney emailed Parent the summer schedules for Student's ESY and compensatory education. (Ex. S99.)

         On August 9, 2013, Parents filed a First Amended Complaint in DP 13-104. (Answer, Ex.1, First Am. Compl., ECF No. 3-1.) ALJ Allen held three days of hearings on September 23-25, 2013. After hearing the testimony and reviewing the exhibits submitted by the parties, ALJ Allen made the following conclusions of law:

(1) the District denied the Student educational opportunities and denied Parents a meaningful opportunity to participate in Student's education from December 6, 2011 until the end of the school year, during the 2011-2012 academic year.
(2) The District denied the Student educational opportunities and denied Parent a meaningful opportunity to participate in the Student's education during the 2012-2013 academic year.
(3) The District failed to provide the Student a free appropriate public education during the 2011-2012 academic year.
(4) The District failed to provide the Student a free appropriate public education during the 2012-2013 academic year.

(Final Order at 12.) The ALJ ordered the District to "convene a facilitated IEP meeting to discuss all Parents' concerns" within 21 days of the order. (Final Order at 31.) With respect to the compensatory remedies ordered by ALJ Allen, the ALJ indicated the following:

[t]he violations for the 2011-2012 academic year share a common nucleus of operative facts as those found determined by ALJ Messecar. The current due process claim simply picks up [ ] at the filing date of that due process complaint. Accordingly, an award of continuing compensatory education for the relevant period is appropriate. As such the District is hereby order[ed] to provide two hours each of direct transitional math and transitional reading instruction for every week of instruction Student should have received between December 7, 2011 and August 14, 2013.

(Final Order at 32.) Therefore, ALJ Allen ordered the District to "continue to provide compensatory education services via certified special education teacher with a high school endorsement, including transportation to and from such services, for the denial of FAPE in the 2011-2012 and 2012-2013 academic years." (Final Order at 31.) ALJ Allen also instructed the District to continue to "deliver SDI by employing learning techniques effective for Student" as ordered by ALJ Messecar. (Final Order at 32.) And, because "Parents did not demonstrate a new or independent failure to properly evaluate Student," ALJ Allen ordered the District to provide District staff training for IEP development and evaluating Student consistent with ALJ Messecar's decision only. (Final Order at 32.)

         The District appealed the ALJ's Final Order to this court on March 18, 2014. (Compl., ECF No. 1.)

         On June 9, 2014, this court reversed in part and affirmed in part the conclusions of ALJ's Messecar's decision in DP 11-131. Concerning Parents' argument that the District denied them an opportunity to meaningfully participate by rejecting the various independent evaluations, this court partially agreed with the ALJ's findings. Forest Grove, 2014 WL 2592654, at * 13. In this regard, the court affirmed ALJ Messecar's decision that the District violated the IDEA for failing to consider Ensroth's October 2011 and Buckendorfs August 2011 reports when drafting the November 2011 IEP. Forest Grove, 2014 WL ...


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