M.M. v. Lafayette School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

M.M.; E.M., individually and on No. 12-15769
behalf of their minor son C.M.,
Plaintiffs-Appellants, D.C. No.
3:10-cv-04223-SI
v.

LAFAYETTE SCHOOL DISTRICT, a
local educational agency;
LAFAYETTE BOARD OF EDUCATION,
Defendants-Appellees.

M.M.; E.M., individually and on No. 12-15770
behalf of their minor son C.M.,
Plaintiffs-Appellants, D.C. No.
3:09-cv-04624-SI
v.

LAFAYETTE SCHOOL DISTRICT; OPINION
LAFAYETTE BOARD OF EDUCATION;
STATE OF CALIFORNIA DEPARTMENT
OF EDUCATION; JACK O’CONNELL,
as State Superintendent of Public
Instruction for the State of
California; DANA SASSONE;
CALIFORNIA DEPARTMENT OF
GENERAL SERVICES; WILL BUSH,
Defendants-Appellees.
2 M.M. V. LAFAYETTE SCH. DIST.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding

Argued and Submitted
November 5, 2013—San Francisco, California

Filed September 16, 2014

Before: Sidney R. Thomas and Johnnie B. Rawlinson,
Circuit Judges, and Kevin Thomas Duffy, Senior District
Judge.*

Opinion by Judge Thomas;
Dissent by Judge Rawlinson

SUMMARY**

Individuals with Disabilities Education Act

Affirming in part and reversing in part the district court’s
judgment, the panel held that a school district’s failure to
provide educational testing data to parents violated the
procedural requirements of the Individuals with Disabilities
Education Act and prevented the parents from meaningfully

*
The Honorable Kevin Thomas Duffy, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 M.M. V. LAFAYETTE SCH. DIST. 3

participating in the creation of their son’s individualized
education program, thereby denying him a free appropriate
public education under the IDEA.

The panel held that the school district did not fail to
properly incorporate “Response-to-Intervention” or “RTI”
testing data into the student’s initial evaluation. The school
district did, however, violate the IDEA by failing to insure
that the RTI data was documented and carefully considered
by the entire IEP team and failing to furnish the parents with
the data, thereby making it unable for them to give informed
consent for both the initial evaluation and the special
education services their son received. The panel held that
this procedural violation denied the student a FAPE because
it seriously infringed his parents’ opportunity to participate in
the IEP formulation process.

The panel did not reach questions of whether the resulting
IEPs were reasonably calculated to enable the student to
receive educational benefits, whether the school district
otherwise procedurally violated the IDEA, or whether an
assessment of the student was otherwise appropriate. In light
of its holding that the student was denied a FAPE, the panel
remanded for reconsideration of whether the parents were
entitled to reimbursement for the cost of private instruction.

Addressing issues concerning two earlier proceedings
before the Office of Administrative Hearings, the panel
affirmed the district court’s conclusion that the parents’ claim
for reimbursement of the cost of an evaluation was moot.
The panel held that the parents were not denied due process
in the first OAH proceeding. The panel affirmed the district
court’s determination that two of the three claims raised in
the second OAH proceeding were time-barred.
4 M.M. V. LAFAYETTE SCH. DIST.

The panel affirmed the dismissal of claims against the
State of California Department of Education for failing to
properly oversee the OAH proceedings and for staying its
investigation.

The panel affirmed in part the dismissal of retaliation
claims under § 504 of the Rehabilitation Act and remanded
for the district court to consider one claim in the first
instance.

The panel remanded for reconsideration the issue of the
parents’ request for attorneys’ fees under 20 U.S.C.
§ 1415(i)(3)(B).

Judge Rawlinson dissented from the majority’s holding
that the school district failed to provide the student a FAPE
and from the reversal of the award of attorneys’ fees. She
wrote that no procedural violation of the IDEA was
committed by the school district because the RTI assessments
were not a mechanism used to identify students in need of
special education. Judge Rawlinson also disagreed that the
district court failed to address one Rehabilitation Act claim.
She wrote that she would affirm the district court’s judgment
in its entirety.

COUNSEL

Lina Foltz, Oakland, California, for Plaintiffs-Appellants.

Amy R. Levine (argued), Dannis Woliver Kelley, San
Francisco, California; Louis Leone, Stubbs & Leone, Walnut
Creek, California, for Defendants-Appellees Lafayette School
District and Lafayette Board of Education.
 M.M. V. LAFAYETTE SCH. DIST. 5

Amy Bisson Holloway, General Counsel, Edmundo Aguilar,
Assistant General Counsel, and Leonard Garfinkel (argued),
Deputy General Counsel, California Department of
Education, Sacramento, California, for Defendants-Appellees
California Department of Education and Jack O’Connell.

OPINION

THOMAS, Circuit Judge:

In this appeal we consider, among other matters, whether
a school district’s failure to provide educational testing data
to parents violated the procedural requirements of the
Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400–1487 (“IDEA” or “Act”). We conclude that it did.
We also conclude that the failure to provide the data
prevented the parents from meaningfully participating in the
creation of his individualized education program (“IEP”),
thereby denying their son a free appropriate public education
(“FAPE”) under the IDEA.

I

These consolidated appeals arise out of three
administrative complaints and three district court lawsuits
concerning the educational opportunities provided to C.M., a
child who has been identified as an individual with learning
disabilities. C.M.’s parents, M.M. and E.M., appeal from the
district court’s decision to affirm the Office of Administrative
Hearings (“OAH”) judge’s conclusion that the Lafayette
School District’s (the “District”) did not violate the IDEA.
6 M.M. V. LAFAYETTE SCH. DIST.

During the 2005–2006 school year, the District
implemented a new Response-to-Intervention (“RTI”)
approach to assist struggling learners in the general education
program. The District used RTI as an intermediate step
before referring a student for special education placement.
Reading Specialist Carol Harris conducted “universal
assessments” of all students in kindergarten through third
grade three times each school year, which included the
Slosson Oral Reading Test (“SORT”) and the Dynamic
Indicators of Basic Early Literacy Skills (“DIBELS”) test.
District staff then came together after each assessment period
to discuss each student’s results to “pinpoint children that
need support beyond . . . general instruction,” to guide the
intervention—or additional instruction—the child would then
receive, and to monitor the progress the student made in
response to the implemented intervention. These meetings
were called “Assessment Wall” meetings, and they were
attended by Principal Mary Maddux, Instructional Support
Teacher (“IST”) Jane Jones, Reading Specialist Harris, and
the general education teachers from each grade level. The
complete RTI assessment results and related graphs were not
given to parents.

That same year, C.M. began kindergarten at Lafayette
Elementary School when he was six years old. Through RTI,
the District identified C.M. as in need of reading intervention
and began providing him additional instruction, which
continued throughout his kindergarten year and into the
following summer via a special summer class. Specifically,
C.M.’s DIBELS results during his kindergarten year placed
him at benchmark in Phoneme Segmentation Fluency but
below benchmark in Initial Sound Fluency, Letter Naming
Fluency, and Nonsense Word Fluency. His kindergarten
report card indicated some areas in reading and writing where
 M.M. V. LAFAYETTE SCH. DIST. 7

he met grade level standard and some areas where he was
approaching grade level standard.

In first grade, C.M. continued to receive reading
intervention. In October, his parents submitted a written
request to the District to perform an evaluation of C.M. for
learning disabilities. The District convened two Student
Study Team (“SST”) meetings with the parents in November
and February before referring C.M. for the special education
evaluation. The SST meeting notes referenced in narrative
form C.M.’s difficulties, the parents’ and teachers’ concerns,
and the interventions he was receiving. C.M.’s RTI data
graphs were not reviewed during the SST meetings, and the
February meeting notes reference only his mid-year SORT
score and his overall DIBELS Strategic rating, which denotes
a below benchmark rating.

The District eventually completed a special education
Assessment Plan on February 20, 2007, and on that same day
obtained E.M.’s consent to move forward with the initial
evaluation. The District conducted the evaluation in March
and April, which included an educational readiness
assessment by IST Jones and intellectual development and
developmental history assessments by School Psychologist
Intern Michelle Charpentier. Although the Assessment Plan
also included social/emotional and motor/perceptual
development assessments those assessments were not
performed.

The District emailed the assessment results to C.M.’s
parents on April 17, 2007, and held the first meeting of
C.M.’s IEP team the following day. Based on the evaluation,
the IEP team, which included the parents, determined C.M.
was eligible for special education because he had a
8 M.M. V. LAFAYETTE SCH. DIST.

phonological processing disorder.1 A phonological
processing disorder is one subset of an auditory processing
disorder and relates specifically to the phonemic awareness
pillar of reading,2 which “refers to a person’s ability to detect
and access the sound structure of language.” Based on this
eligibility determination, the IEP team developed an
education program in which C.M. would begin participating
in the school’s Instructional Support Program (“ISP”),
receiving instruction in language arts from IST Jones for 45
minutes a day, four times a week, to help him with his
difficulties in reading and writing. The IEP team meeting
lasted approximately 30 to 45 minutes.

C.M. participated in the ISP for the remainder of his first
grade year, and at the end of the year, his DIBELS results
placed him above benchmark in Phoneme Segmentation
Fluency but below benchmark in Nonsense Word Fluency
and Oral Reading Fluency. His first grade report card
indicated he was below grade level standard in reading and
approaching grade level standard in writing.

In second grade, C.M. continued to participate in the ISP.
In late November, his parents obtained a private evaluation
from Doctor of Audiology Dimitra Loomos. Dr. Loomos’s
evaluation revealed that C.M. had a central auditory

1
C.M.’s Specific Learning Disability Eligibility Summary form, which
commemorates his eligibility determination, provides a list for the IEP
team to mark which particular Processing Disorder a child may have. The
list included: Attention, Auditory Processing, Phonological Processing,
Visual Processing, Working Memory, Sensory-Motor Skills, Cognitive
Abilities, and Executive Functioning.
2
The five pillars of reading are phonemic awareness, decoding, fluency,
comprehension, and vocabulary.
 M.M. V. LAFAYETTE SCH. DIST. 9

processing disorder (“CAPD”) that was related to his learning
disability. Auditory processing “is defined as the execution
and coordination of specific auditory mechanisms in an
interactive manner . . . that allows the central nervous system
to detect, decode, synthesize and interpret auditory
information.”

Similar to the DIBELS assessment, C.M. demonstrated
good phonemic awareness as well as good auditory
discrimination, auditory closure, auditory figure/ground
ability, and auditory attention. Conversely, C.M.’s
performance showed “a deficit for integrating auditory
information within the central auditory nervous system. . .
[and] in the ability to perform binaural separation of auditory
signals.”

Dr. Loomos explains in her report that “[b]ecause we
view the world simultaneously through the individual senses,
we are constantly working to fit all the pieces together in
order to get the whole picture. If the central nervous system
is not properly integrating the auditory input with other
sensory input (visual, tactile, etc.), the child ends up with an
incomplete puzzle . . . . Children displaying signs of poor
integration skills on CAP tests may also demonstrate deficits
in auditory-visual and/or visual-motor integration skills (e.g.
writing, reading recognition, spelling, etc.).” Dr. Loomos
made a number of recommendations for C.M. in terms of
environmental modifications, direct interventions, and
compensatory strategies.

C.M.’s second grade teacher, Jody Carson, was aware of
Dr. Loomos’s evaluation because she completed a report for
Dr. Loomos, and E.M. gave a copy of the final evaluation
10 M.M. V. LAFAYETTE SCH. DIST.

report to Ms. Carson, IST Jones, and the school front desk
when school resumed after the holiday break.

As of February, C.M.’s RTI SORT scores were declining.
On March, 18, 2008, the District convened C.M.’s first
annual IEP review meeting, and the IEP team developed a
renewed IEP. However, the new IEP was not only identical
to the previous IEP, it also failed to reference C.M.’s CAPD
or provide for any modifications or accommodations to
address his unique deficits. C.M.’s parents consented to the
renewed IEP. About one week later, the parents received the
final evaluation report for another private evaluation they
obtained from Speech-Language Pathologist Deborah Swain,
which found that C.M. “experiences a range from average
ability to significant difficulty with specific skills of auditory-
based language processing.”

Thus, throughout the spring, the parents paid for C.M. to
attend sound-based therapy, and conversations between E.M.
and C.M.’s teachers were ongoing concerning C.M.’s CAPD
and the recommendations contained in both evaluation
reports. In May, an informal meeting was held at the parents’
request to discuss C.M.’s need for a speech and language
assessment and clarification of the IEP to address C.M.’s
CAPD. No amendments were made to the IEP. By the end
of his second grade year, C.M. scored Below Basic in
language arts on a state standardized test, which was shared
with his parents. His DIBELS results placed him below
benchmark in Oral Reading Fluency. His second grade report
card indicated he was below grade level standard in both
reading and writing.

Three weeks into C.M.’s third grade year, on September
17, 2008, the District convened an interim IEP team meeting
 M.M. V. LAFAYETTE SCH. DIST. 11

at the parents’ request to discuss, inter alia, their concern
over his lack of meaningful academic progress, the need for
improved goals and objectives in the IEP, and amendments to
the IEP to better address C.M.’s CAPD. At the meeting, the
parents also advised the District that they disagreed with the
2007 Assessment results, and later that day they requested in
writing an independent educational evaluation (“IEE”) at the
District’s expense.3 For two months, the District did not
respond to the IEE request and instead sought the parents’
consent to reevaluate C.M., but the parents did not consent
and they did not withdraw their request for an IEE.

In December, the parents obtained an evaluation at their
own expense by Licensed Psychologist Tina Guterman. Dr.
Guterman’s educational evaluation, which included a review
of C.M.’s prior evaluations and background, found that C.M.
had auditory processing weaknesses and severe dyslexia and
that his IEP services were insufficient to meet his needs. Her
report states that students with similar profiles as C.M. “make
larger and more resilient gains through systematic immersion
in a research based multi-sensory program delivered at a high
level of intensity.” Dr. Guterman made a number of
recommendations for C.M.’s instructional program.

The parents subsequently withdrew C.M. from the ISP
and enrolled him in an intense private reading and
comprehension program that better addressed his multi-

3
Once the parents disagreed with the assessment and requested an IEE,
the District had two choices under the IDEA. It could, “without
unnecessary delay,” either provide the requested IEE or file a due process
complaint with the California Department of General Services to defend
the 2007 Assessment. 34 C.F.R. § 300.502(b)(2); Cal. Educ. Code
§ 56329(c).
12 M.M. V. LAFAYETTE SCH. DIST.

sensory integration deficits while they and the District
continued to negotiate his IEP. The IEP team participated in
a series of facilitated meetings over a period of seven months.
The parents did not ultimately agree to a renewed IEP for
C.M. until the end of his third grade year.

On November 18, 2008, the same day as the first
facilitated IEP team meeting, the parents filed a compliance
complaint with the California Department of Education
(“Department of Education”), alleging that the District failed
to comply with the IDEA procedures after their request for an
IEE. Early in December, the District responded to the IEE
request by filing a due process complaint with the California
Department of General Services, defending the 2007
Assessment. The District also asked the Department of
Education to stay its investigation of the parents’ complaint
because the IEE issue was pending in the OAH, and the
Department of Education closed its investigation. After a
three day hearing, the administrative law judge (“ALJ”)
issued a decision holding that the District unnecessarily
delayed in defending the 2007 Assessment and also found
that the parents waited too long to request the IEE. The ALJ
therefore ordered the District to reimburse the parents for
only half the cost of Dr. Guterman’s evaluation. The ALJ
also found that conditions warranted reevaluation, and
permitted the District to proceed with new assessments of
C.M.

On April 16, 2009, the parents filed a due process
complaint with the OAH, alleging 16 separate claims against
the District regarding its identification of C.M. as a child with
a disability and its development of an assessment plan, the
appropriateness of the 2007 Assessment, and the District’s
development and oversight of the IEP. In August of that
 M.M. V. LAFAYETTE SCH. DIST. 13

year, the parents filed a second due process complaint with
the OAH, alleging in four claims that the District denied C.M.
a FAPE. The ALJs dismissed the claims that arose before
April 16, 2007, as being outside the statute of limitations, and
after an eleven day hearing, held that the 2007 Assessment
was appropriate, the District did not deny C.M. a FAPE, and
C.M. was not entitled to receive reimbursement for his
private compensatory education services.

Between August 2009 and September 2010, the parents
initiated three lawsuits against the District and its Director of
Student Services Dr. Dana Sassone, the Lafayette Board of
Education, the Department of Education and its
Superintendent, and the California Department of General
Services and its Director, in federal district court seeking
reversal of the OAH decisions, attorney’s fees, and remedies
for various violations of the IDEA, § 504 of the
Rehabilitation Act, and the Constitution.

The district court issued multiple orders dismissing
portions of the lawsuits and consolidating the remaining
claims.4 On February 7, 2012, the district court issued its
final order, finding in favor of the District on all but one
claim, and issued its final judgment on March 8, 2012. The
parents timely filed notices of appeal. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part and
reverse in part.

We review the district court’s findings of fact for clear
error even when they are based on the written record of

4
In a previous appeal concerning claims in the first lawsuit, we affirmed
the district court. M.M. v. Lafayette Sch. Dist., 681 F.3d 1082 (9th Cir.
2012).
14 M.M. V. LAFAYETTE SCH. DIST.

administrative proceedings. Burlington N., Inc. v.
Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983);
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th
Cir. 1987). A finding of fact is clearly erroneous when the
evidence in the record supports the finding but “the reviewing
court is left with a definite and firm conviction that a mistake
has been committed.” Burlington N., Inc., 719 F.2d at 307.
Questions of law and mixed questions of fact and law are
reviewed de novo. Gregory K., 811 F.2d at 1310.

II

“The IDEA provides states with federal funds to help
educate children with disabilities if they provide every
qualified child with a FAPE that meets the federal statutory
requirements.” Amanda J. ex rel. Annette J. v. Clark Cnty.
Sch. Dist., 267 F.3d 877, 882 (9th Cir. 2001). Congress
enacted the IDEA “to ensure that all children with disabilities
have available to them a free appropriate public education
that emphasizes special education and related services
designed to meet their unique needs . . . .” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA provides for a cooperative
process between parents and schools that culminates in the
creation of an IEP for every disabled student. See generally
20 U.S.C. § 1414.

A core principle throughout the IDEA is meaningful
participation by parents and informed parental consent,
making the parents an integral part of the team that
determines both whether the child is a child with a disability
and the content of the child’s IEP. See 20 U.S.C.
§§ 1400(c)(5)(B), 1414(a)(1)(D), 1414(b)(4)(A); 34 C.F.R.
§ 300.306(a)(1). In crafting the Act, Congress also placed
great emphasis on procedural safeguards to “ensure that the
 M.M. V. LAFAYETTE SCH. DIST. 15

rights of children with disabilities and parents of such
children are protected.” 20 U.S.C. § 1400(d)(1)(B).
“Procedural compliance is essential to ensuring that every
eligible child receives a FAPE, and those procedures which
provide for meaningful parent participation are particularly
important.” Amanda J., 267 F.3d at 891.

A FAPE is defined by the IDEA as “special education and
related services that . . . are provided in conformity with the
individualized education program required under section
1414(d) of this title.” 20 U.S.C. § 1401(9). “Special
education” is defined as “specially designed instruction, at no
cost to parents, to meet the unique needs of a child with a
disability . . . .” 20 U.S.C. § 1401(29). An IEP is “a written
statement for each child with a disability that is developed,
reviewed, and revised in accordance with section 1414(d) of
this title.” 20 U.S.C. § 1401(14).

A school district “must comply both procedurally and
substantively with the IDEA.” N.B. v. Hellgate Elementary
Sch. Dist., ex rel. Bd. of Dirs., Missoula Cnty., Mont.,
541 F.3d 1202, 1207 (9th Cir. 2008) (internal quotation marks
omitted). Thus, to determine whether a school district has
provided a FAPE, we make a two-part inquiry. First, we
determine whether the school district “complied with the
procedures set forth in the Act,” and second, we determine
whether “the individualized educational program developed
through the Act’s procedures [was] reasonably calculated to
enable the child to receive educational benefits.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206–07 (1982).

“Under the 1997 amendments to the IDEA, a school must
provide a student with a ‘meaningful benefit’ in order to
16 M.M. V. LAFAYETTE SCH. DIST.

satisfy the substantive requirement[]. . . .” N.B., 541 F.3d at
1212–13. “However, the court need not reach the question of
substantive compliance if the court finds procedural
inadequacies that result in the loss of educational opportunity,
or seriously infringe the parents’ opportunity to participate in
the IEP formulation process, or that caused a deprivation of
educational benefits.” N.B., 541 F.3d at 1207 (internal
quotation marks omitted). The parents contend that the
District failed to comply with both the procedural and
substantive requirements of the IDEA.

A

C.M.’s parents argue that the District violated the
procedural requirements of the IDEA because it failed to
properly incorporate C.M.’s RTI data into C.M.’s initial
evaluation and it failed to provide them with C.M.’s RTI data.
They argue that the failure to provide them the RTI data
forestalled them—as members of the IEP team—from
carefully considering all available information in making the
eligibility determination, prevented them from giving
informed parental consent for both the initial evaluation and
the services C.M. would receive, and violated their right to
examine C.M.’s records. We conclude that the District did
not fail to incorporate the RTI data into the evaluation, but
that it violated the IDEA’s procedural requirements by failing
to provide the parents with the RTI data.

1

In conducting the initial evaluation, the school district
must “use a variety of assessment tools and strategies to
gather relevant functional, developmental, and academic
information” to determine both whether the child is a child
 M.M. V. LAFAYETTE SCH. DIST. 17

with a disability and the content of the child’s IEP. 20 U.S.C.
§ 1414(b)(2)(A); accord 34 C.F.R. § 300.304(b)(1). The
agency “shall not use any single measure or assessment as the
sole criterion” for determining eligibility. 20 U.S.C.
§ 1414(b)(2)(B); accord 34 C.F.R. § 300.304(b)(2). In 2004,
in response to scientific research establishing “that the
‘severe discrepancy model’ is not necessarily a good indicator
of whether a child has a learning disability,” Congress
eliminated the “severe discrepancy” requirement and
expressly permitted use of the “response to intervention
model,” allowing for either model to be used. Michael P. v.
Dept. of Educ., 656 F.3d 1057, 1060–61 (9th Cir. 2011). See
also 20 U.S.C. § 1414(b)(6) (“when determining whether a
child has a specific learning disability . . . a local educational
agency shall not be required to take into consideration
whether a child has a severe discrepancy . . . [and] may use a
process that determines if the child responds to scientific,
research-based intervention as a part of the evaluation
procedures”). We held in Michael P., that the Hawaii
Department of Education violated the IDEA by using only the
severe discrepancy model without permitting use of the
response to intervention model. 656 F.3d at 1067.

Here, although the District had the choice, it used the
severe discrepancy model for C.M.’s initial evaluation. To
the extent the District argues it used solely the severe
discrepancy model, the District would have violated the
IDEA. Id. However, the record reflects that the District not
only used a variety of assessment tools, but it also used
C.M.’s RTI data to corroborate the 2007 Assessment. C.M.’s
Eligibility Summary form noted that his “learning problem
[was] corroborated by other assessment data.” School
Psychologist Patrick Gargiulo testified, while referencing that
form, that “[w]e noted that the Student had been participating
18 M.M. V. LAFAYETTE SCH. DIST.

in response to intervention,” and that the RTI data was the
corroborating data. Thus, the District properly used a variety
of tools, including C.M.’s RTI assessment data.

The parents argue that the IEP team was required to
review the RTI data as part of the initial evaluation, citing
20 U.S.C. § 1414(c)(1). That section provides that “[a]s part
of an initial evaluation (if appropriate) and as part of any
reevaluation under this section, the IEP Team and other
qualified professionals, as appropriate, shall review existing
evaluation data on the child, including . . . current
classroom-based, local, or State assessments” to “identify
what additional data, if any, are needed” to determine
eligibility or other needs. The qualifier “if appropriate,”
negates an express statutory requirement to review existing
evaluation data as a part of the initial evaluation. We
therefore conclude that the District did not procedurally
violate the IDEA with respect to C.M.’s RTI data and the
2007 Assessment.

2

The district violated the IDEA by failing to insure that the
RTI data was documented and carefully considered by the
entire IEP team and failing to furnish the parents with the
data, thereby making it unable for them to give informed
consent for both the initial evaluation and the special
education services C.M. received.

“In interpreting evaluation data for the purpose of
determining [both] if a child is a child with a disability . . .
and the educational needs of the child, each public agency
must [d]raw upon information from a variety of sources,
including aptitude and achievement tests, parent input, and
 M.M. V. LAFAYETTE SCH. DIST. 19

teacher recommendations, as well as information about the
child’s physical condition, social or cultural background, and
adaptive behavior; and [e]nsure that information obtained
from all of these sources is documented and carefully
considered.” 34 C.F.R. § 300.306(c)(1) (emphasis added).

The District argues it drew upon a variety of sources and
ensured the documentation and consideration of all
information. As we have noted, the District drew upon a
variety of sources, including C.M.’s RTI data. However, the
record shows that the District failed to ensure that the RTI
data was documented and carefully considered by the entire
IEP team. Although C.M.’s Eligibility Summary form noted
corroboration of his RTI data, the form also directs, “Attach
documentation.” The District failed to attach or otherwise
share with the entire IEP team any RTI documentation. Dr.
Sassone testified that the documentation that should have
been attached was the SST meeting notes that the parents
already received. However, an email in which she instructed
District staff to both attach the missing RTI documentation to
the form and provide her with better copies of the SST
meeting notes conflicts with her testimony.

Additionally, “[u]pon completion of the administration
and other evaluation measures, a copy of the evaluation report
and the documentation of determination of eligibility shall be
given to the parent.” 20 U.S.C. §§ 1414(b)(4)(B); accord 34
C.F.R. § 300.306(a)(2) (and “at no cost to the parent”). The
“documentation of the determination of eligibility” must
contain a number of particular statements. The first relevant
statement is “[t]he basis for making the determination,
including an assurance that the determination has been made
in accordance with § 300.306(c)(1).” 34 C.F.R.
§ 300.311(a)(2). The second relevant statement comes into
20 M.M. V. LAFAYETTE SCH. DIST.

play “[i]f the child has participated in a process that assesses
the child’s response to scientific, research-based intervention”
and requires a statement of “[t]he instructional strategies used
and the student-centered data collected; and [t]he
documentation that the child’s parents were notified about”
certain state policies, strategies to increase the child’s
learning rate, and the parent’s right to request an evaluation.
34 C.F.R. § 300.311(a)(7).

The District argues first that § 300.311 requires only a
statement, not documentation, and that it provided such a
statement. The regulation does require only a statement, and
the Eligibility Summary form does provide a statement that
the determination is in accordance with § 300.306, to satisfy
§ 300.311(a)(2). As for § 300.311(a)(7), the form provides
statements that C.M. participated in RTI and that there was
corroboration with other assessment data, and it provides a
statement covering all documentation of which the parents
were notified. However, it does not include a statement of
the instructional strategies used and the student-centered data
collected.5

5
The dissent notes that § 1414(b)(1) requires an educational agency to
provide the parents of a child with disability notice of the evaluation
procedures the agency “proposes to conduct.” Id. The dissent argues that
the agency never proposed to use the RTI assessment to determine C.M.’s
eligibility for special education services, and therefore the district was not
obligated to notify C.M.’s parents. However, this argument ignores the
wholly separate requirement imposed by § 1414(b)(4). Under
§ 1414(b)(4), “documentation of determination of eligibility shall be given
to the parent” upon completion of the evaluation. Id. Moreover, the
dissent’s position conflicts with the additional requirement that this
documentation of determination of eligibility include a statement of the
“instructional strategies used and the student-centered data collected” if
the child has “participated in a process that assesses the child’s response
to scientific, research-based intervention.” 34 C.F.R. § 300.311(a)(7). The
 M.M. V. LAFAYETTE SCH. DIST. 21

The District argues that § 300.311(a)(7) is only applicable
if RTI was used to determine C.M.’s eligibility, it did not use
an RTI method to determine C.M.’s eligibility, and neither of
the formal evaluations relied on the RTI data. However, the
District fails to cite to any authority establishing that
§ 300.311(a)(7) is limited to when RTI was used to determine
eligibility, and the regulation conditions a statement if the
child participated in a “process that assesses the child,” not a
process that determines the child’s eligibility. That C.M.
participated in RTI assessments and the severe discrepancy
model was corroborated by C.M.’s RTI data is sufficient to
deem the data applicable to the regulation. Dr. Sassone
testified that she cannot say that the RTI that C.M.
participated in would be the same as the scientific, research-
based intervention referenced in the regulation. But the fact
that the Eligibility Summary form otherwise tracks the
requirements of the regulation undermines her testimony.
Moreover, she testified that the information on the Eligibility
Summary form “provide[s] information related to what was
used in . . . making a determination.” Had the District either
provided the required statement or attached the RTI
documentation as the form instructed, the entire IEP team,
including the parents, would have had all the information they
needed to make a procedurally valid eligibility determination.

In addition, to ensure that underachievement is not due to
a lack of appropriate instruction, “the group must consider, as
part of the evaluation . . . [d]ata-based documentation of
repeated assessments of achievement at reasonable intervals,

most natural reading of the statute is that § 1414(b)(1) requires that the
agency provide notice to the parent regarding the tests it intends to
conduct on a child, and § 1414(b)(4) requires that the agency inform the
parent of the results of those tests.
22 M.M. V. LAFAYETTE SCH. DIST.

reflecting formal assessment of student progress during
instruction, which was provided to the child’s parents.” 34
C.F.R. § 300.309(b)(2).

The District argues that this provision is inapplicable
because RTI was not used to determine eligibility, but again
the District fails to cite to any authority. This provision
particularly does not appear to call for RTI data only if that
data was used to determine eligibility. To the contrary,
because this provision is meant to ensure that
underachievement is not due to a lack of appropriate
instruction, it calls for any documentation of any repeated
assessments. The RTI assessments performed on C.M. would
have been beneficial here, especially given that the District
staff met three times per year to discuss C.M.’s progress
based on that data. We therefore conclude that the District
procedurally violated the IDEA by failing to provide the
entire IEP team with C.M.’s RTI data for the purpose of
making his eligibility determination.

Finally, the IDEA requires informed parental consent
before conducting an initial evaluation and before providing
special education services to a child. 20 U.S.C.
§ 1414(a)(1)(D)(i). The school district must also establish
procedural safeguards that provide “[a]n opportunity for the
parents of a child with a disability to examine all records
relating to such child.” 20 U.S.C. § 1415(b)(1)(A).
Examination of records by parents is critical to the
development of an IEP. Amanda J. ex rel. Annette J. v. Clark
Cnty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001). In
Amanda J., the parents argued that Amanda was denied a
FAPE because they were not provided with all of her school
records, some of which indicated that she may have autism.
Id. at 890. Because “[a]n IEP which addresses the unique
 M.M. V. LAFAYETTE SCH. DIST. 23

needs of the child cannot be developed if those people who
are most familiar with the child’s needs are not involved or
fully informed,” we agreed. Id. at 892.

Without C.M.’s RTI complete data, his parents were
unable to give informed consent for both the initial evaluation
and the special education services he received. His parents
did not request in writing all records relating to C.M., until
the middle of his third grade year. However, the District had
a procedural duty to share C.M.’s RTI data with his parents
as early as C.M.’s first grade year, when it sought to obtain
their informed consent for the initial evaluation. The District
also had a procedural duty to provide the IEP team with the
RTI data at the April 18, 2007, meeting for making the
eligibility determination. The District therefore violated the
procedural safeguards of the IDEA by not providing the
parents with an opportunity to examine all records relating to
C.M.

B

Having determined that the District procedurally violated
the IDEA by not providing the parents with his complete RTI
data, and because not all procedural violations deny a child a
FAPE, R.B., ex. rel. F.B. v. Napa Valley Unified Sch. Dist.,
496 F.3d 932, 938 (9th Cir. 2007), we now consider whether
the violation “result[ed] in the loss of educational
opportunity, or seriously infringe[d] the parents’ opportunity
to participate in the IEP formulation process, or . . . caused a
deprivation of educational benefits,” N.B. v. Hellgate
Elementary Sch. Dist., ex. rel. Bd. of Dirs., Missoula Cnty.,
Mont., 541 F.3d 1202, 1207 (9th Cir. 2008).
24 M.M. V. LAFAYETTE SCH. DIST.

Although the other members of C.M.’s IEP team were
familiar with his RTI data because they participated in his
Assessment Wall meetings three times a year, the parents
were unfamiliar with the data and, more importantly, the
picture the data painted of C.M.’s deficits and his progress
during his kindergarten through third grade years. C.M.’s
DIBELS measures on Initial Sound Fluency, Letter Naming
Fluency, and Nonsense Word Fluency were below benchmark
prior to his initial evaluation, but his measure on Phoneme
Segmentation Fluency was at benchmark. Based on the 2007
Assessment results, the IEP team determined C.M. was
eligible for special education services based upon a
phonological processing disorder. This result conflicts with
his Phoneme Segmentation Fluency score, especially his
above benchmark Phoneme Segmentation Fluency score and
below benchmark Oral Reading Fluency score at the end of
his first grade year. Without a complete presentation of the
RTI data, the parents were unaware of the discrepancy and
thus unable to properly consider C.M.’s particular processing
disorder and the instructional strategies he needed. Also, at
the time of the first annual IEP meeting in C.M.’s second
grade year, his RTI data showed that his progress in the
language arts had declined after receiving special education
services for nearly one year. Despite his lack of progress, the
IEP team made no changes to his educational program.
Without the RTI data, the parents were struggling to decipher
his unique deficits, unaware of the extent to which he was not
meaningfully benefitting from the ISP, and thus unable to
properly advocate for changes to his IEP. We therefore
conclude that the District’s procedural violations prevented
the parents from meaningfully participating in the IEP
process. Therefore, the District denied C.M. a FAPE.
 M.M. V. LAFAYETTE SCH. DIST. 25

C

Because we hold that the District failed to comply with
the procedures mandated by the IDEA and that this failure
denied C.M. a FAPE, we need not address the question of
whether the resulting IEPs were reasonably calculated to
enable C.M. to receive educational benefits. See Amanda J.
ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 895
(9th Cir. 2001). Nor do we need to reach whether the District
otherwise procedurally violated the IDEA or whether the
2007 Assessment was otherwise appropriate.

D

School districts may be ordered to reimburse parents of a
child who has been denied a FAPE for the cost of private
instruction. 20 U.S.C. § 1412(a)(10)(C)(ii); see also 34
C.F.R. § 300.148(c). During the OAH hearing and at the
district court, the parents sought reimbursement for C.M.’s
audiology and processing assessments, sound-based therapy,
and private reading programs that they provided for C.M. at
their own expense. Both the ALJ and the district court
determined that the parents were not entitled to
reimbursement because they had concluded that the District
had not denied C.M. a FAPE. Because we conclude
otherwise, we remand to the district court for reconsideration
of this issue.

III

The parents contest three of the district court’s rulings
related to the first two OAH proceedings.
26 M.M. V. LAFAYETTE SCH. DIST.

A

The district court properly concluded that the parents’
claim for reimbursement of the cost Dr. Guterman’s
evaluation was moot. In the first OAH proceeding, the ALJ
ordered the District to reimburse the parents for half of the
cost of Dr. Guterman’s evaluation and permitted the District
to complete a reevaluation of C.M. C.M.’s parents argue that
the ALJ erred in reducing the reimbursement and authorizing
the reevaluation. The district court determined that both
issues are moot because the District not only paid half of Dr.
Guterman’s evaluation cost, but on September 2, 2011,
voluntarily paid the other half as well. Additionally, by June
24, 2010, the District had completed its reevaluation of C.M.

“The jurisdiction of federal courts depends on the
existence of a ‘case or controversy’ under Article III of the
Constitution.” Pub. Utils. Comm’n of Cal. v. FERC, 100 F.3d
1451, 1458 (9th Cir. 1996) (internal quotation marks
omitted). No justiciable controversy is presented where the
question sought to be adjudicated has been mooted by
developments subsequent to filing of the complaint. Church
f Scientology of Cal. V. U.S., 506 U.S. 9, 12 (1992). The
District’s payment for the full cost of Dr. Guterman’s
evaluation and completion of its reevaluation have mooted
both issues.

C.M.’s parents claim the issues are not moot because the
court otherwise had jurisdiction under § 1415 of the IDEA.
However, regardless of other bases for jurisdiction, “[t]he
court must be able to grant effective relief, or it lacks
jurisdiction.” Pub. Utils. Comm’n of Cal., 100 F.3d at 1458.
Since the court could no longer grant full reimbursement or
deny reevaluation, the issues were moot. The parents also
 M.M. V. LAFAYETTE SCH. DIST. 27

argue that they requested as a remedy declaratory relief. Yet,
there must still be an “actual controversy” for a court to issue
declaratory relief. See 28 U.S.C. § 2201. The parents further
argue that the reevaluation performed by the District “was not
the same reevaluation,” but the record shows that the
reevaluation sought by the District in the first proceeding was
an evaluation to update the out-of-date 2007 Assessment. By
June 2010, the District completed that evaluation. Finally,
the parents argue that the reevaluation issue is live because
they claim that the District’s “conduct violated § 504 [of the
Rehabilitation Act].” But, that argument is irrelevant because
their § 504 claims were not deemed moot.

The parents further argue that collateral consequences
prevent the claims from being moot. One exception to the
mootness doctrine exists where a claimant would suffer
“collateral legal consequences” if the action appealed were
allowed to stand. Doe v. Madison Sch. Dist. No. 321, 177
F.3d 789, 799 (9th Cir. 1999). The parents base their
argument on their attempt to recover prevailing party
attorneys’ fees. However, “[t]he existence of an attorneys’
fees claim . . . does not resuscitate an otherwise moot
controversy.” Cammermeyer v. Perry, 97 F.3d 1235, 1238
(9th Cir. 1996). The parents also argue that as a collateral
consequence, they and other parents are tainted by the ALJ’s
erroneous finding. This argument is not well taken. C.M.’s
parents bring their claims individually and, as aptly stated by
the District, “the mere existence of an adverse decision does
not revive a moot claim, lest the mootness doctrine would
become meaningless.”

Finally, the parents argue that their claims are capable of
repetition yet evading review. Another exception to the
mootness doctrine provides that an otherwise moot issue will
28 M.M. V. LAFAYETTE SCH. DIST.

be heard “if it presents an issue that is capable of repetition
while evading review.” Pub. Utils. Comm’n of Cal., 100 F.3d
at 1459. To determine whether an issue is capable of
repetition yet evades review, we determine (1) whether “the
challenged action is of limited duration,” and (2) whether
there is “a reasonable expectation that the same complaining
party will be subjected to the same action again.” Wiggins v.
Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985). The ALJ based
his reimbursement and reevaluation decisions on the 17-
month delay between the 2007 Assessment and the parents’
request for an IEE. The parents argue that they are likely to
again delay in requesting an IEE in the future because of
summer vacation periods and unresolved issues that persist
with C.M.’s IEP, and because the District is “likely to employ
similar delay tactics and seek reevaluation to discourage
making an IEE request because it can moot such claims at
will.” However, each reevaluation that could lead to an IEE
request will be based on unique circumstances, just as the
2007 Assessment was based on unique circumstances. Thus,
the district court did not err in determining the claims are not
capable of repetition and otherwise moot.

B

The district court properly concluded that the parents’ due
process rights were not violated by a change in the wording
of the issue presented. The parents claim that the ALJ in the
first OAH proceeding altered the hearing issues when he
determined that reevaluation was warranted, thereby violating
their due process rights and the IDEA. The District’s due
process complaint stated as an issue, “[w]hen conditions
warrant reassessment, the District has the right to conduct
that assessment using its own personnel. Therefore, if
reassessment is warranted, the District has the right to
 M.M. V. LAFAYETTE SCH. DIST. 29

conduct that assessment pursuant to the assessment plan
proposed on September 24, 2008.” Additionally, the ALJ’s
Order Following Pre-Hearing Conference stated the issue as,
“Does District have the right to assess Student as described in
the September 24, 2008, assessment plan?” The district court
correctly concluded that the complaint “contemplated an
analysis of whether conditions warrant reassessment” and that
the parents were put on notice of the issue to be decided.6

C

The district court correctly determined that two of the
three claims raised in the second OAH proceeding were time-
barred. In that proceeding, the parents’ first three claims
related to the District’s failure to timely identify C.M. as a
student with a learning disability and its failure to timely
develop its Assessment Plan. The ALJ dismissed those
claims that arose before April 16, 2007, because they were
outside the two-year statute of limitations, and the parents did
not allege any exception to the statute. The district court
agreed that the claims were time barred despite the parents’
contentions that an exception to the statute applied.

The statute of limitations for due process complaints in
California precludes claims that occurred more than two years
prior to the date of filing the request for due process. Cal.
Educ. Code § 56505(l); 20 U.S.C. § 1415(f)(3)(c). The
statute does not apply where “the parent was prevented from
requesting the due process hearing due to either of the

6
The parents raise three additional arguments that pertain to the
alteration of issues by the ALJs that we will not consider because they
were argued for the first time on appeal. Cold Mountain v. Garber,
375 F.3d 884, 891 (9th Cir. 2004).
30 M.M. V. LAFAYETTE SCH. DIST.

following: (1) Specific misrepresentations by the local
educational agency that it had solved the problem forming the
basis of the due process hearing request. (2) The withholding
of information by the local educational agency from the
parent that was required under this part to be provided to the
parent.” Cal. Educ. Code § 56505(l).

First, the parents argue that the District withheld from
them a procedural safeguards notice, which the District was
required by 34 C.F.R. § 300.504 to make available to them,
at the latest, upon the referral for C.M.’s initial evaluation on
February 20, 2007. The parents claim they did not receive
such a notice until the first IEP meeting on April 18, 2007.
However, the district court correctly determined that the
record reveals otherwise. IST Jones testified that on February
20, 2007, “[a]long with the assessment plan, [E.M.] would
have been given a copy of her parents’ procedural
safeguards.” Although Jones did not have a “present
recollection” of giving E.M. that exact document, the ALJ
found Jones’s testimony credible under Federal Rule of
Evidence 406 (“Evidence of a person’s habit or an
organization’s routine practice may be admitted to prove that
on a particular occasion the person or organization acted in
accordance with the habit or routine practice.”). The ALJ
found Jones more credible than E.M. on what documents
were received when they met, and it was not erroneous for the
district court to defer to the ALJ’s credibility finding where
the decision was thorough and careful. Seattle Sch. Dist., No.
1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996) (where findings
are based on determinations regarding the credibility of
witnesses, even greater deference is due the trial court’s
findings); R.B., ex. rel. F.B. v. Napa Valley Unified Sch. Dist.,
496 F.3d 932, 942 (9th Cir. 2007) (the amount of deference
accorded the hearing officer’s findings increase where the
 M.M. V. LAFAYETTE SCH. DIST. 31

officer is “thorough and careful”). Moreover, Jones’s
testimony is corroborated by the testimony of Principal
Maddux and Dr. Sassone, as well as the Assessment Plan that
E.M. signed on February 20, 2007:

You are being supplied a written statement of
Parent Rights which summarizes the laws that
apply to Special Education and describes the
process for resolving possible disputes
through local mediation, alternative dispute
resolution services and/or a hearing conducted
by persons authorized by the State
Department of Education. . . . If you have any
questions regarding this letter or your rights as
a parent, please contact your child’s teacher,
the school principal, or Jane Jones at 283-
6231.

Second, the parents argue that the statute does not apply
because the District withheld C.M.’s RTI data. Although we
have concluded that the District procedurally violated the
IDEA by withholding C.M.’s RTI data, we find that the
procedural violation occurred at the earliest as of February
20, 2007, when the District sought to obtain the parents’
informed consent for C.M.’s initial evaluation. The parents
fail to demonstrate how receipt of the RTI data, and for that
matter the notice of procedural safeguards, in February rather
than April would have caused them to file the due process
complaint earlier. We therefore conclude that the district
court did not err in deciding that the claims that arose before
April 16, 2007, were time barred.
32 M.M. V. LAFAYETTE SCH. DIST.

IV

The district court properly dismissed the parents’ claims
against the Department of Education. In the first two
lawsuits, the parents brought claims against the Department
of Education for failing to properly oversee the OAH
proceedings and for staying its investigation. In the second
lawsuit, the parents’ first amended complaint also included
claims against the Department of Education under the IDEA.
The district court dismissed all claims against the Department
of Education in both cases in its June 2, 2010, and March 3,
2011, orders.

The parents argue they can state a claim against the
Department of Education for “breach of their duty to ensure
IDEA procedural safeguards and fundamental fairness in
OAH hearings.” The parents dispute the ALJs’ alteration of
issues and barring of certain witness testimony. However, the
district court determined that the Department of Education
has no authority over the OAH, and that determination was
affirmed by this Court and will not be reviewed again. M.M.
v. Lafayette Sch. Dist., 681 F.3d 1082, 1092 (9th Cir. 2012)
(“[The Department of Education] does not have authority or
responsibility to directly supervise or review each decision
made by an ALJ in a due process hearing.”).

The parents argue they can state a claim against the
Department of Education for staying its investigation because
the IDEA provides them a private right of action. However,
the district court correctly dismissed this claim because the
Department of Education abided by the regulatory mandate
to stay the investigation while the due process hearing was
pending. 34 C.F.R. § 300.152(c)(1) (“If a written complaint
is received that is also the subject of a due process hearing . . .
 M.M. V. LAFAYETTE SCH. DIST. 33

the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of
the hearing.”). The parents argue the issues in the complaint
and due process hearing were not the same because they
raised the District’s delay in seeking due process after the
Department of Education investigation was closed. But this
is without merit. The due process hearing was focused on the
parents’ request for an IEE and whether the District was
responsible for funding it. That question necessarily
depended on the District’s compliance with the IDEA in
responding to the parents’ request.7

The parents argue that they can state a claim against the
Department of Education for breach of its duties under
§§ 1412(a) and 1415(a) of the IDEA. However, the district
court correctly determined that those provisions do not
provide a private right of action. Section 1412 discusses the
policies and procedures that a state is required to have in
place in order for the state to be eligible for assistance under
the IDEA, and § 1415 is a mandate for a state to establish
procedural safeguards. Neither section contains a private
right of action, and indeed § 1415(f) specifically requires
complaints to be heard in an impartial due process hearing
and then provides an express right of appeal for review of any

7
The parents also raise a new argument that the Department of
Education was required to address corrective action before closing the
investigation. However, this new argument will not be reviewed for the
first time on appeal. Cold Mountain, 375 F.3d at 891.
34 M.M. V. LAFAYETTE SCH. DIST.

administrative decision.8 Thus, the district court did not err
in dismissing all claims against the Department of Education.

V

The district court properly dismissed the parents’
retaliation claims under § 504 of the Rehabilitation Act
pertaining to (1) the District’s request to stay the Department
of Education’s investigation of the parents’ complaint; (2) the
District’s use of facilitated IEP meetings; and (3) the
District’s effort to reevaluate C.M. after their IEE request.
The parents fail to brief the stayed Department of Education
investigation theory, and it is therefore waived.9 United
States v. Williamson, 439 F.3d 1125, 1137–38 (9th Cir. 2006)
(issues raised in brief but not supported by argument are
abandoned); Fed. R. App. P. 28(a)(9)(A). We address the
remaining two claims in turn.

A

Prior to its final order, the district court dismissed the
parents’ § 504 retaliation claim that the District used the
facilitated IEP meetings coercively because the parents failed

8
The parents claim that the Cannon v. University of Chicago, 441 U.S.
677, 688 n.9 (1979), factors for determining whether to imply a private
right of action come out in their favor, but they offer only a partial
argument in their brief and fail to discuss the dispositive factor of whether
Congress intended to create a private right of action. See Greene v. Sprint
Commc’ns Co., 340 F.3d 1047, 1052 (9th Cir. 2003). Therefore, we
decline to reach whether a private right of action can be implied in
§§ 1412 and 1415 of the IDEA.
9
Likewise, we do not address number 14 and number 26 of the parents’
questions presented for failure to brief the arguments.
 M.M. V. LAFAYETTE SCH. DIST. 35

to exhaust the issue at the administrative hearing. The
parents contend the dismissal was in error.

Under Robb v. Bethel School District, 308 F.3d 1047,
1048 (9th Cir. 2002), overruled by Payne v. Penninsula
School District, 653 F.3d 863 (9th Cir. 2011) (overruled on
other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir.
2014)), the district court dismissed the claim for failure to
exhaust because that case stood for the proposition that where
a “plaintiff has alleged injuries that could be redressed to any
degree by the IDEA’s administrative procedures and
remedies[,] . . . exhaustion of those remedies is required.”
Accord 20 U.S.C. § 1415(l). The parents argue that the court
erred because exhaustion is not needed for this claim and
bases their argument on Payne. In that case, we clarified that
the IDEA’s exhaustion provision applies only in cases where
the relief sought is available under the IDEA. Payne,
653 F.3d at 871. Thus, the parents go on to conclusively
claim, “Educational services available through the IDEA’s
administrative process could not remedy the effect of
facilitated IEP team meetings. However, remedies are
available under § 504.”

However, we have clarified Payne and explained that to
determine what constitutes a claim for relief under the IDEA,
we “consider whether a plaintiff seeks (1) monetary relief as
the ‘functional equivalent’ of a remedy available under the
IDEA, (2) ‘prospective injunctive relief to alter an IEP or the
educational placement of a disabled student,’ or (3) ‘to
enforce rights that arise as a result of a denial’ of a FAPE.”
C.O. v. Portland Pub. Schs., 679 F.3d 1162, 1168 (9th Cir.
2012) (quoting Payne, 653 F.3d at 875). Here, the parents’
retaliation claim is the functional equivalent of a procedural
defect claim under the IDEA where they claim violation of
36 M.M. V. LAFAYETTE SCH. DIST.

§ 1414(d)(1)(B)(iv) concerning the individuals that comprise
an IEP team. Their claim for relief thus falls under the IDEA,
and they are bound by its exhaustion requirement. The
district court did not err in dismissing the claim for failure to
exhaust.

B

The parents argue that the district court erred because it
“did not resolve or address the [reevaluation] retaliation
claim.” Indeed, the district court dismissed the facilitated IEP
meetings claim and the stayed Department of Education
investigation claim but not the reevaluation claim. Although
the district court granted the District’s motion for summary
judgment, which included the question whether the District
had any ill motive in requesting the reevaluation, we agree
that the district court erred by not explicitly addressing their
§ 504 claim. Additionally, the parents assert that
“[d]iscovery was still pending on CM’s retaliation claims”
when the district court issued its final order. We therefore
remand the issue to the district court for it to consider the
claim in the first instance.

VI

Under 20 U.S.C. § 1415(i)(3)(B), the parents sought
attorneys’ fees at the district court for prevailing on the IEE
reimbursement issue—the parents were awarded $2400 in the
first OAH proceeding for the cost of the IEE and $800 in the
second lawsuit for the fee Dr. Guterman charged to attend the
March 2009 IEP meeting. Ultimately, the district court
reduced the parents’ attorneys’ fees award based on their
limited degree of success and for unreasonably protracting the
final resolution of the controversy. In light of our reversal as
 M.M. V. LAFAYETTE SCH. DIST. 37

to C.M.’s FAPE, we remand this issue for reconsideration by
the district court.

VII

In conclusion, we reverse the district court’s
determination that the District did not procedurally violate the
IDEA by failing to provide the parents with his complete RTI
assessment data and that the District provided C.M. with a
FAPE. We remand for reconsideration of both the
reimbursement due the parents for his private instruction and
their attorneys’ fees award, and we remand for consideration
of the parents’ § 504 reevaluation retaliation claim. We
otherwise affirm the judgment of the district court. Each
party shall bear its or their own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART;
REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s holding that the
Lafayette School District failed to provide M.M. a Free
Appropriate Public Education, and from the reversal of the
award of attorney’s fees. Giving appropriate deference to the
findings of the state Administrative Law Judge (ALJ), I
conclude that no procedural violation of the Individuals with
Disabilities Education Act (IDEA) was committed by the
School District. Neither do I agree that the district court
failed to address Plaintiffs’s claim brought pursuant to
Section 504 of the Rehabilitation Act.
38 M.M. V. LAFAYETTE SCH. DIST.

My disagreement with the majority primarily stems from
our differing view of the Response-to-Intervention (RTI)
model utilized by the School District to measure achievement
levels of all students in the school. It is undisputed that these
assessment tools were administered to all students to identify
those who might benefit from extra assistance, and were NOT
a mechanism used to identify students in need of special
education. Nevertheless, the majority holds that failure to
provide these test results to C.M.’s parents resulted in a
violation of the IDEA.

The ALJ explored this matter in detail following an
eleven-day hearing in which he actively participated. We
have consistently recognized the expertise of administrative
judges who routinely preside over hearings addressing the
adequacy of special education plans adopted and
administered by local school districts. The decisions of these
specialized judges are entitled to substantial deference. In
J.W. v. Fresno Unified School Dist., 626 F.3d 431, 438 (9th
Cir. 2010), we reminded ourselves that we must not substitute
our “own notions of sound educational policy for those of the
school authorities” when considering cases under the IDEA
(citation omitted). We specifically noted that increased
deference is afforded the decision of a hearing officer when
his findings “are thorough and careful.” Id. (citation
omitted). We generally consider findings to be “thorough and
careful” when the hearing officer participates in questioning
witnesses, and pens a decision containing a complete
recitation of the facts and a comprehensive analysis of the
issues. Id. at 40–41 (citation omitted); see also J.M. v.
Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir.
2009), as amended (determining that a twenty-page opinion
met the standard of “thorough and careful”). The ALJ’s
decision easily meets these criteria.
 M.M. V. LAFAYETTE SCH. DIST. 39

In a comprehensive, detailed, forty-eight page decision,
the ALJ rejected the claim that the School District was
required to incorporate the RTI documents as part of the
assessment process to determine C.M.’s eligibility for special
education services. See ALJ Decision, p. 18. The ALJ
described credible testimony from the principal at C.M.’s
school, who explained that the school’s RTI program is
primarily used to assign students to teachers based on
achievement level. See id. at p. 5. At the beginning of each
school year, every student is administered a battery of
screening assessments. From these assessments, a card is
prepared for each student listing the student’s grade level, test
scores, biographical information, screening results, and
classroom observations. See id. The purpose of this RTI
model “is to provide early and effective intervention to
students requiring additional support. . . .” Id. During the
month of October, the school held assessment sessions for
each grade level. During these assessment sessions students
were placed into one of three categories: Intensive (those
students performing well below grade level), Strategic (those
students performing within the grade level curriculum range,
but in need of additional support), and Benchmark (those
students performing at or above grade level). See id. at pp.
5–6. Classes are then “comprised of a blend of students from
each category.” Id. at p. 5.

From this description, it is apparent that the RTI
assessments were for the purpose of determining the makeup
of the classrooms rather than assessing any child for
eligibility for special education services. Indeed, the RTI
assessment is part and parcel of the School District’s general
education system. See id. at p. 6. These assessments took
place three times each school year to monitor the educational
progress of all students, not just those in need of special
40 M.M. V. LAFAYETTE SCH. DIST.

education. See id. It was only after concerns were raised
regarding C.M.’s lack of academic progress in the area of
language arts that C.M. was referred for testing to determine
his eligibility for special education services. See id. at p. 9.

The ALJ made a clear distinction between use of the RTI
as a means to assign students to their respective classrooms
and use of the RTI as an assessment tool to determine
eligibility for special education services. The ALJ explained
that school districts have the option of using an RTI model to
determine eligibility for special education services, or using
a “student’s ability versus student’s actual achievement
discrepancy model.” Id. at p. 19 and n.10. The ALJ noted
that it was undisputed that the Lafayette School District used
the “ability to achievement discrepancy model” to determine
C.M.’s eligibility for special education services. Id. n.10.
The record supports this determination. As the majority
acknowledges, RTI assessments are based on the Slosson
Oral Reading Test and the Dynamic Indicators of Basic Early
Literacy Skills Test. See Majority Opinion, p. 6. However,
the assessment used to determine C.M.’s eligibility for
special education services were the Woodcock Johnson III
reading comprehension test and the Comprehensive Test of
Phonological Processing. C.M.’s Eligibility Summary form
documenting his eligibility for special education services did
NOT list the RTI in the assessments used to make the
determination of eligibility or to corroborate the
determination of eligibility.

Rather than deferring to the ALJ’s considered resolution
of this issue, the majority embarks upon a de novo review of
the record to reach a conclusion contrary to that of the ALJ
and at odds with the record.
 M.M. V. LAFAYETTE SCH. DIST. 41

As the district court noted, Plaintiffs’ reliance on
20 U.S.C. § 1414(c) is misplaced. That statute provides in
pertinent part:

Additional requirements for evaluation
and reevaluations

(1) Review of existing evaluation data

As part of an initial evaluation (if
appropriate) and as part of any reevaluation
under this section, the [Individualized
Education Program] Team and other qualified
professionals, as appropriate, shall–

(A) review existing data on the child . . .

20 U.S.C. § 1414(c)(1)(A) )(emphasis added).

It is important that this provision is tethered to the
evaluation and assessments conducted by the team
responsible for determining the student’s eligibility for
special education services. Because the record reflects that
the RTI assessments were not used to determine C.M.’s
eligibility for special education services, this provision does
not support the majority’s conclusion that the School District
was required to provide the RTI data to C.M.’s parents under
the IDEA, especially considering that the statutory language
is tempered by inclusion of the phrase “if appropriate,”
thereby reflecting deference to the discretion of the school
officials. See Our Children’s Earth Found. v. United States
EPA, 527 F.3d 842, 851 (9th Cir. 2008) (noting that use of “if
appropriate” in the statute signifies a grant of discretion); see
also United States v. Godinez-Ortiz, 563 F.3d 1022, 1029 (9th
42 M.M. V. LAFAYETTE SCH. DIST.

Cir. 2009) (recognizing that because the governing statute
provided for a hearing, “if appropriate,” the hearing might
never occur); K.D. v. Hawaii Dept. of Educ., 665 F.3d 1110,
1119 (9th Cir. 2011) (describing “if appropriate” as a
“qualifier”). This same discretionary language vested the
Lafayette School District with discretion to determine which
assessment should be administered and, correspondingly,
which data should be reviewed in evaluating C.M. for special
education services. Exercising its statutory discretion, the
School District elected NOT to use the RTI as an assessment
model. Consequently, no legal obligation arose to review or
provide the RTI data in conjunction with the evaluation of
C.M.’s eligibility for special education services.

Plaintiffs’ argument fares no better under the provisions
of § 1414(b), which requires the educational agency to notify
the parents of the description of evaluation procedures the
educational agency “proposes to conduct.” Because the
School District did not propose to utilize the RTI model to
evaluate C.M.’s eligibility for special education services, this
provision did not mandate notification of the RTI data. In
sum, the majority’s conclusion that the School District relied
upon the RTI data and was required to provide that data to
C.M.’s parents as part of the IDEA procedural requirements
ignores the factual findings made by the ALJ and the district
court, and deviates from the language of the IDEA.

I also disagree that the district court failed to explicitly
address Plaintiffs’ claim under the Rehabilitation Act. This
claim was encompassed within Plaintiffs’ assertion that the
school district’s motives for seeking a reevaluation of C.M.
were vindictive. The district court explicitly addressed this
claim under a section titled “Whether the District Unlawfully
Retaliated by filing a Due Process Complaint.” District
 M.M. V. LAFAYETTE SCH. DIST. 43

Court Opinion, p. 45. The district court restated Plaintiffs’
contention that “the District engaged in retaliatory behavior
against plaintiffs in violation of § 504 of the Rehabilitation
Act to intimidate, punish, and discourage Plaintiffs from
asserting their rights. . . .” Id. (internal quotation marks
omitted). The district court referenced the finding from the
ALJ that the due process complaint filed by the school district
did not influence the decision of the California Department of
Education (CDE) to dismiss Plaintiffs’ compliance complaint.
Rather, the CDE dismissed Plaintiffs’ Complaint “on its own
volition.” Id. Accordingly, the ALJ determined that C.M.
offered insufficient evidence of retaliation. See id.

The district court agreed with the ALJ’s analysis of the
§ 504 issue, and added that this issue had been previously
addressed in the court’s order resolving Defendants’ Motion
to Dismiss. The court explained that the issue was addressed
as to the CDE in its order addressing the motion to dismiss.
However, the court held that the “same reasoning holds true
for the District.” Id. at p. 46. The school district acted in
compliance with the governing regulation, which negated a
retaliatory motive. See id. Rather than failing to address the
§ 504 issue, the district court actually addressed it twice. The
Plaintiffs’ contrary allegation lacks merit.

Cases brought under the IDEA are complicated, and
emotions sometimes run high. It is completely
understandable that the parents of a child with a disability
would leave no stone unturned in their effort to ensure that
their child’s legal rights are fully protected. However, in this
case, I agree with the ALJ and the district court judge that the
Lafayette School District complied with the requirements of
the IDEA. I would affirm the district court judgment in its
entirety.