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Case 1:11-cv-00320-CWD Document 111 Filed 11/25/13 Page 1 of 15



UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO







Case No. 1:11-cv-00320-CWD

MEMORANDUM DECISION AND
ORDER


MERIDIAN JOINT SCHOOL
DISTRICT, NO. 2,


Plaintiff,


v.

D.A. and J.A., on behalf of themselves
and as legal guardians and parents of
M.A., a minor individual with a
disability


Defendants.





Before the Court is the question of appropriate relief in this action under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiff,

the Meridian Joint School District No. 2 (“MSD”), initiated this administrative appeal to

challenge Hearing Officer Guy Price’s determination that M.A., a child diagnosed with

high-functioning autism and the student at the center of the dispute in this case, was

entitled to an Independent Educational Evaluation (“IEE”) at public expense. The Court

affirmed HO Price’s decision and ruled in favor of Defendants D.A. and J.A., M.A.’s

Parents. (Dkt. 63.)

When doing so, the Court requested additional briefing on appropriate relief by

late April 2013. A decision on this issue was prolonged by Parents’ motion for interim

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attorney fees and costs for the underlying due process hearing, (Dkt. 64), and MSD’s

request that the Court bifurcate the issue of entitlement to interim fees from the issue of

the reasonableness of such fees (Dkt. 70). The Court granted the motion to bifurcate,

(Dkt. 71), determined M.A.’s Parents were entitled to interim attorney fees, (Dkt. 92),

and ultimately granted in part and denied in part Parents’ motion for interim fees (Dkt.

101.)

As alleged appropriate relief, M.A.’s Parents request reimbursement for the IEE

and various amendments they obtained at their own expense after MSD denied their

request. The facts and legal arguments are adequately presented in the briefs and the

record. Accordingly, in the interest of avoiding delay, and because the Court conclusively

finds that the decisional process would not be significantly aided by oral argument, this

matter will be decided on the record pursuant to District of Idaho Local Civil Rule 7.1(d).

For the reasons set forth below, the Court finds M.A.’s Parents are entitled to $6,854.00

for the IEE.

BACKGROUND

The underlying facts and procedural history of this case are well known to the

parties and set forth in in more detail in the Court’s rulings on Parents’ motion for interim

attorneys’ fees, (Dkt. 92, 101), and the Court’s Memorandum Decision and Order entered

March 20, 2013 (Dkt. 63). They need not be repeated in full.

Relevant here, on June 6, 2011, HO Price found M.A. was entitled to an IEE at

public expense. In his Memorandum Decision and Order, HO Price declined to decide

whether M.A. was eligible for special education, concluding that such a ruling would be

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premature without an IEE. Although HO Price initially retained jurisdiction, he issued

and Addendum and Errata to Memorandum Decision in July 2011, in which he

relinquished jurisdiction and again noted that issues related to special education

eligibility could not be decided until “the IEE is completed and acted upon by the

District.” (Dkt. 1-3 at 2.) MSD timely appealed shortly thereafter.1 After considering the

record before HO Price and additional evidence presented by the parties, the Court

affirmed the Hearing Officer and ordered the parties to brief the issue of appropriate

relief by late April 2013. 2 (Dkt. 63.)

While the appeal of HO Price’s decision proceeded in this Court, M.A.’s Parents

retained Dr. Barbara Webb, an expert in autism with twenty years of experience as a

school psychologist, to review M.A.’s educational records and prepare an IEE. On

August 29, 2011, Dr. Webb provided Parents an initial IEE based on input from other

professionals and an extensive review of tests, previous school district evaluations,

meeting transcripts, and other records. (Dkt. 22-16.) Dr. Webb amended the initial IEE on

September 13, 2011, to include additional opinions regarding M.A.’s eligibility for

special education and a review of testimony by M.A.’s teachers during the spring 2011

due process hearing before HO Price. (Dkt. 22-21.) Dr. Webb also prepared two



1 In their pleadings, both parties urge the Court to decide issues and grant relief related to

M.A.’s alleged eligibility for special education. However, the Court will not do so here. HO
Price properly declined to decide the eligibility question without the benefit of the IEE, and,
accordingly, that question is not before the Court in this appeal.

2 MSD has appealed—without permission from the Court—two interlocutory orders in
this case to the United States Court of Appeals for the Ninth Circuit. (See Dkt. 105 (appealing
the Orders at Dkt. 92 and 101); 67 (appealing the Order at Dkt. 63).) As of this date, the Ninth
Circuit has not ordered a stay of these proceedings pending appeal.
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supplemental assessments in January 2012 and presented her findings at meetings of

MSD’s special education eligibility team in late 2011 and early 2012. (Dkt. 65-3 at 6-7.)

MSD reviewed the IEE in connection with its determination that M.A. is not

eligible for special education, a finding currently before the Court in a separate

proceeding. See D.A. ex. rel. M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:12-cv-00426-

CWD (D. Idaho). The parties also engaged in separate litigation over M.A. and his

Parents’ claims against MSD and the Independent School District of Boise City under the

Americans with Disabilities Act and Section 504 of the Rehabilitation Act. See D.A. ex.

rel. M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:11-cv-00119-CWD (D. Idaho). Trial in

that case resulted in a jury verdict favorable to the school districts. Since 2011, this IEE

proceeding, along with the Section 504 proceedings, all were litigated first at the

administrative level and then in this Court. Each case, including the ADA/Section 504

jury trial, involved somewhat overlapping evidence. That is significant because, as

discussed below, M.A.’s Parents seek reimbursement here for professional services

related to the Section 504 litigation.

Claiming a total cost of $18,509.90, M.A.’s Parents now seek reimbursement from

MSD for the cost of Dr. Webb’s IEE. According to M.A.’s Parents, the cost of the IEE

includes additional assessments of M.A., report preparation, and presentations to MSD

during various meetings after the IEE was submitted. In other words, M.A.’s Parents

argue they should be reimbursed for not only the cost of the evaluation and its

amendments, but also the cost of presenting the IEE to MSD as the school district

assessed M.A.’s eligibility for special education. M.A.’s Parents further request that the

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Court order an assistive technology evaluation pursuant to 34 C.F.R. § 300.105. MSD

objects, arguing M.A.’s Parents are entitled to only $1,500 for the cost of the IEE.

1.

Legal Standard



DISCUSSION

After the Court has reviewed the administrative record, heard additional evidence,

and entered a decision on the preponderance of the evidence, the IDEA authorizes “such

relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The United

States Supreme Court interpreted identical language in the IDEA’s predecessor statute as

conferring “broad discretion on the court.” Sch. Comm. of Burlington v. Dept. of Educ. of

Mass., 471 U.S. 359, 369 (1985). Finding the statutory term “appropriate” must be

understood in light of the Act’s purposes, the Supreme Court went on to hold that

“Congress meant to include retroactive reimbursement to parents as an available remedy

in a proper case.” Id.

Congress included the right to an IEE at public expense as one of the IDEA’s

essential procedural safeguards.

School districts have a natural advantage in information and expertise, but
Congress addressed this when it obliged schools to safeguard the
procedural rights of parents and to share information with them.... [Parents]
have the right to an independent educational evaluation of the[ir] child. The
regulations clarify this entitlement by providing that a parent has the right
to an independent educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the public agency. IDEA thus
ensures parents access to an expert who can evaluate all the materials that
the school must make available, and who can give an independent opinion.
They are not left to challenge the government without a realistic
opportunity to access the necessary evidence, or without an expert with the
firepower to match the opposition.


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Schaffer ex. rel. Schaffer v. Weast, 546 U.S. 49, 60-61 (2005) (citations and quotations

omitted).

The right to an IEE entitles parents to a publicly funded independent, expert

assessment of their child. 34 C.F.R. § 300.502(a)(3)(i). The IEE, like MSD’s own

evaluation, must assess “all areas related to the suspected disability.” Id. § 300.304(b)(4);

see also IDAPA 08.02.03.109.05.j (“[T]he criteria under which the evaluation is

obtained, including the location of the evaluation and the qualifications of the examiner,

shall be the same as the criteria the education agency uses when it initiates an evaluation,

to the extent those criteria are consistent with the parent or adult student’s right to an

IEE.”). But this does not entitle parents to expenses unrelated to the expert’s independent

evaluation of the student. Rather, the Court will order reimbursement only for costs

clearly linked to the IEE.

2.

Cost of the IEE

With respect to this case, the Court agrees with HO Price that the IEE of M.A.

“should be specifically designed to understand the student’s disabilities and whether they

affect his academic performance and indicate a need for specialized instruction….” (Dkt.

1-2 at 18.) The August 2011 IEE M.A.’s Parents obtained from Dr. Webb addresses these

criteria through analysis of educational records, observations, and testing by Dr. Webb

and other professionals. Dr. Webb supplemented the IEE with new analyses in September

2011 and twice in January 2012. Dr. Webb also participated in two meetings, one in

November 2011 and one in January 2012, where she presented her findings to the MSD

team tasked with determining whether M.A. was eligible for special education. M.A.’s

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Parents seek reimbursement for all of these services, whereas MSD insists only the cost

of the initial IEE prepared by Dr. Webb is reimbursable.

In addition to the cost of Dr. Webb’s evaluations, M.A.’s Parents claim they

should be reimbursed “for IEE-related activities, assessments, observations, and reporting

to the district” by Michael Spero, Rebecca Thompson, Dr. Craig Beaver, Chris Curry,

and Dr. Tyler Whitney. (Id. at 6-7.) MSD argues that the costs for these professional

services constitute non-reimbursable expert consultation fees. In support, MSD claims the

United States Supreme Court has held that “school districts are not responsible for

reimbursing prevailing parents for services rendered by experts or consultants.” (Dkt. 77

at 11(citing Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006).) But

this overstates the holding in Arlington and misconstrues the scope of the Court’s

discretion under the controlling statutory provision.

Arlington addresses a narrow, clearly defined issue: Whether the IDEA’s fee-

shifting provision “authorizes prevailing parents to recover fees for services rendered by

experts in IDEA actions.” 548 U.S. at 293-94. There, a student’s parents sought $29,350

for services by a non-lawyer educational consultant as litigation costs under 20 U.S.C.

§ 1415(i)(3)(B).3 The Supreme Court held that neither the goals of the IDEA, the Court’s

interpretation of identical language in other statutes, nor the text of the fee-shifting

provision itself evidenced unambiguous congressional intent to make expert fees part of

the “costs” available to a prevailing parent under 20 U.S.C. § 1415(i)(3)(B). Id. at 302-


3 Section 1415(i)(3)(B) provides that “the court, in its discretion may award reasonable

attorneys’ fees as part of the costs – (I) to a prevailing party who is the parent of a child with
disability….”
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04. Accordingly, the consultant’s services were not compensable under the fee-shifting

provision. However, Arlington says nothing about the permissible scope of the relief that

may be granted pursuant to 20 U.S.C. § 1415(i)(2)(C)(iii)—the governing IDEA

provision here.

As stated above, 20 U.S.C. § 1415(i)(2)(C)(iii) authorizes “such relief as the court

determines is appropriate.” Unlike the fee-shifting provision at issue in Arlington, the text

of § 1415(i)(2)(C)(iii) evinces clear congressional intent that the district courts should

have broad discretion to craft appropriate remedies for IDEA violations. Indeed, that is

precisely what the United States Supreme Court held in Burlington. 471 U.S. at 369.

While the Court may not award expert fees as part of costs claimed under the IDEA’s

fee-shifting provision, here, the Court may include such fees as part of the relief if

“appropriate.”

Appropriate relief includes only expenses that enabled M.A.’s Parents to obtain

the IEE considered by MSD’s eligibility team. Although the Court recognizes the IEE of

M.A. is a compilation of work by several professionals, the Court also notes that many of

these same professionals have provided services to M.A.’s Parents in other proceedings

involving MSD. Accordingly, the Court will not assume an expense is reimbursable

simply because it appears in an invoice for services rendered to M.A.’s Parents. Rather,

the Court will look for a clear link between the services rendered and the IEE. Absent

such a link, the expense will be disallowed. With these standards in mind, the Court now

reviews Parents’ requested relief.



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a.

Dr. Barbara Webb

M.A.’s Parent claim $11,569.40 for Dr. Webb’s services, including her review of

M.A.’s educational record, IEE preparation, supplemental assessments, and presentations

to MSD’s eligibility team. (Dkt. 65 at 7.) MSD contends that only $1,500—the amount

Dr. Webb billed for preparing the initial IEE—is reimbursable. It is noteworthy that HO

Price determined M.A.’s Parents were entitled to an IEE on June 6, 2011 and that, on

June 14, 2011, Parents’ counsel sent MSD’s counsel a letter stating Parents’ intention to

have Dr. Webb prepare an IEE. (Dkt. 65-2.) Yet M.A.’s Parents claim reimbursement for

$3,963 in services Dr. Webb rendered from February to April, 2011, months before

Parents were found to be entitled to an IEE. (Dkt. 65-3 at 1-3.) These services include

record review, interviews, and testimony, some of which is attributed to the “504 Case”

and some to the “Special Education Case”. (Id.) But Dr. Webb’s IEE indicates her

assessments were conducted in August 2011 and her invoices otherwise contain specific

charges from August 2011 through February 2012 that are linked to the IEE. Therefore, it

is unclear how Dr. Webb’s spring 2011 services relate to the IEE, and the Court finds

these charges are outside the appropriate scope of relief.

M.A.’s Parents also claim $2,056.40 for Dr. Webb’s protocol review, testimony,

hotel, and airfare in connection with “Meridian S.D. 504.” (Dkt. 65-3 at 5.) This cryptic

notation likely refers to services rendered in proceedings under Section 504 of the

Rehabilitation Act. Yet Parents do not explain how expenses from the Section 504

proceedings relate to the cost of the IEE required under the IDEA. Accordingly, the Court

finds these costs do not constitute appropriate relief.

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However, the Court finds the $4,650 billed by Dr. Webb for the IEE and its

amendments qualifies as appropriate relief. (See Dkt. 65-3 at 4-7.) These costs include

record review, preparation of the initial IEE, preparation of the Vineland assessment

supplement, and preparation of the Social Responsiveness Scale supplement—all

performed between August 2011 and January 2012. MSD argues, without supporting

authority, that “[f]ederal law does not contemplate such a ‘rolling’ evaluation.” (Dkt. 77

at 12). Yet MSD also concedes the IEE and its amendments were all considered in

connection with the school district’s February 2012 determination that M.A. is not

eligible for special education. (Id. at 13.) MSD cannot have it both ways, especially

because the school district does not argue the IEE is deficient in any way. If the eligibility

team considered the IEE and its amendments, then M.A.’s Parents are entitled to

reimbursement for the full cost of Dr. Webb’s evaluation.

In addition, the Court regards the $900 Dr. Webb billed for participating in “IEP

Teleconference[s]” on November 10, 2011 and February 2, 2012, as costs appropriately

incurred to obtain the benefit of the IEE. (Dkt. 65-3 at 6-7.) There is sufficient

information in the record for the Court to find that these teleconferences are for eligibility

team meeting where Dr. Webb presented her findings. And the conclusion that such costs

are reimbursable is not without precedent. See M.M. v. Lafayette Sch. Dist., Nos. CV 09-

4624, 10-04223, 2012 WL 398773, *11 (N.D. Cal. Feb. 7, 2012) (including expert’s IEE

presentation as part of the “full cost” of an IEE). The purpose of an IEE, after all, is to

counter the school district’s expert opinion. MSD contends this purpose was met once Dr.

Webb delivered the initial IEE to M.A.’s Parents in August 2011. But Parents’ right to an

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IEE, let alone their right to participate in decisions on the educational placement of M.A.,

see 34 C.F.R. § 300.501(c), would mean little if they were left to challenge the District’s

experts with a partial assessment or “without an expert with the firepower to match the

opposition.” Schaffer, 549 U.S. at 60. Therefore, Parents are entitled to reimbursement

for time Dr. Webb spent explaining her IEE to the eligibility team. In total, M.A.’s

Parents are entitled to $5,550 for Dr. Webb’s services in connection with the IEE.

b.

Rebecca Thompson and Michael Spero

Dr. Webb’s IEE incorporates independent assessments conducted in August 2011

by Michael Spero, an occupational therapist, and Rebecca Thompson, a speech-language

pathologist. (IEE at 1, Dkt. 22-16.) The IEE states Thompson assessed M.A. between

August 9 and 18, 2011, and Spero’s assessments took place between August 18 and 25,

2011. (Id.) M.A.’s Parents note that third-parties, such as Medicaid, paid for some of

Thompson’s and Spero’s services and that Parents do not seek reimbursement for those

costs. (Dkt. 65 at 5.) However, M.A.’s Parents claim reimbursement for $880 in billings

by Thompson and $630 by Spero. MSD attacks these charges as non-reimbursable expert

consultation fees.

Both Thompson’s and Spero’s billing records are imprecise. All of their invoices

are dated months after the assessments noted in the IEE. Thompson’s billing records

include a $560 invoice for “legal representation,” yet she is not licensed to practice law

and the briefs and billing records do not otherwise disclose the nature of her services.

(Dkt. 65-5 at 1.) Thompson’s billing also includes a $320 invoice for “Administration

Time/Paperwork” and “Mileage.” (Id. at 3.) And, unlike Dr. Webb’s invoices, which

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describe the nature of the services rendered, Thompson’s invoices use general “activity

codes” such as “Administrative.” (Dkt. 65-5 at 2, 4.) M.A.’s Parents contend Thompson’s

invoices relate to preparing unspecified reports, conducting unspecified observations, and

attending an unspecified “school team meeting.” (Dkt. 65 at 6.) These contentions invite

the assumption that the paperwork and administrative efforts referenced in these invoices

were incorporated into the IEE and considered by the eligibility team. But, given that

Thompson is involved in other the proceedings between the parties, her invoices and

Parents’ vague statements provide no basis for such a conclusion.

Spero’s billing records are somewhat more descriptive but do not disclose the

dates on which his services were rendered. (See Dkt. 65-6.) One invoice for therapy and

reporting is dated March 2012, the month after MSD utilized the IEE and other evidence

to make its eligibility determination. (Id. at 2.) Spero’s other invoice, dated December

2011, contains charges for Section 504 matters and an “Opinion Letter” with no mention

of the subject. (Id. at 1.) These deficiencies likewise invite the Court to assume a

connection to the IEE where M.A.’s Parents make little effort to demonstrate one. By

providing only cryptic invoices and the bare assertion that “all of the amounts claimed

were related to the IEE,” (Dkt. 84 at 13), M.A.’s Parents have not established the

amounts claimed for Thompson’s and Spero’s services qualify as appropriate relief.

c.

Chris Curry, Dr. Craig Beaver, and Dr. Tyler Whitney

M.A.’s Parents also seek reimbursement for services rendered by Chris Curry, Dr.

Craig Beaver, and Dr. Tyler Whitney. The IEE references reports prepared by these

professionals, but all of this information predates HO Price’s finding that M.A.’s Parents

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were entitled to an IEE at public expense. (Dkt. 22-16 at 1 (Curry’s report dated March

14, 2011; Beaver’s report dated May 19, 2010; Whitney’s report dated April 29, 2009).)

Close inspection of the invoices confirms that many of these expenses relate to Parents’

efforts to establish their entitlement to the IEE—as opposed to the cost of preparing or

presenting the IEE itself. Indeed, Dr. Beaver’s and Ms. Curry’s invoices include charges

for April 2011testimony in the due process hearing before HO Price. (Dkt. 65-4, Dkt. 65-

7.) More problematic, Curry’s invoice also includes costs for observations and a report on

“504 accommodations,” yet M.A.’s Parents again do not explain how assessments for

Rehabilitation Act purposes relate to the IEE they are entitled to under the IDEA. (Dkt.

65-4 at 1.)

The entirety of Dr. Whitney’s billing is for services in late 2010, before M.A.’s

Parents even requested an IEE from MSD. (Dkt. 65-1 at 2-3.) Further, Dr. Whitney’s

charges relate to either unspecified school meetings or travel time to and from

unspecified locations. Simply put, it is largely unclear clear how these three

professionals’ services relate to the cost of the IEE prepared by Dr. Webb and considered

by MSD. The Court is not inclined to guess.

The only exceptions are expenses for the special education eligibility portion of

Curry’s Educational Needs Assessment. In particular, Curry’s invoice discloses $1,304 in

expenses for travel, a six-hour observation session “for eligibility,” and a report “on

eligibility” dated March 14, 2011. Dr. Webb specifically references Curry’s March 14

report in the IEE. (Dkt. 65-1 at 1, 9-14.) This is a clear link between the invoices and the

IEE, the type of link absent from many of the other invoices attached to Parents’ request

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for relief. Thus, there is sufficient basis for the Court to conclude this $1,304 in expenses

may appropriately be considered part of the IEE cost.

3.



Assistive Technology Evaluation

Near the end of their initial brief on appropriate relief, M.A.’s Parents make a terse

request for a Court-ordered independent assistive technology evaluation. (Dkt. 65 at 8.)

The only support for the request is an allusion to 34 C.F.R. § 300.105, which directs

school districts to make assistive technology services “available to a child with disability

if required as part of the child’s – (1) Special education under § 300.36; (2) Related

services under § 300.34; or (3) Supplementary aids and services under §§ 300.38 and

300.114(a)(2)(ii).” (emphasis added). MSD contends that M.A.’s need for assistive

technology is not properly before the Court and is otherwise beyond the scope of an

appropriate IEE. The Court agrees.

By stating “if required as part of the child’s… Special education,” the regulations

clearly contemplate assistive technology services only for students eligible for special

education. 34 C.F.R. § 300.105(a). This appeal, however, presented the narrow question

of whether HO Price correctly found that M.A.’s Parents were entitled to an IEE at public

expense. The legally and factually distinct question of whether M.A. is eligible for

special education is now pending before the Court in a separate case. See D.A. ex. rel.

M.A. v. Meridian Joint Sch. Dist. No. 2, No. 1:12-cv-00426-CWD (D. Idaho). Therefore,

the assistive technology evaluation is not appropriate relief in this action.

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CONCLUSION



The Court, in its discretion, has determined that M.A.’s Parents are entitled to

$6,854.00 in reimbursement for the expenses of the IEE. The additional expenses claimed

by M.A.’s Parents are not clearly linked to the IEE and are thus outside the scope of

appropriate relief. Likewise, an assistive technology evaluation, as it relates to the M.A.’s

alleged eligibility for special education, is not before the Court in this proceeding.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that judgment in the amount

of $6,854.00 shall be entered in this matter, that Plaintiff reimburse Defendants the

amount of $6,854.00 for the reasonable expenses of the IEE, and that final judgment be

entered in this case accordingly.





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