Panicacci v. West Ada School District No. 2

[7] 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF IDAHO 10 ----oo0oo---- [11] 12 ROBERT and AMIE PANICACCI, as No. 1:21-cv-00329 WBS legal guardians and parents of 13 G.P., a minor, 14 Plaintiffs, MEMORANDUM AND ORDER RE: CROSS MOTIONS FOR SUMMARY 15 v. JUDGMENT 16 WEST ADA SCHOOL DISTRICT #2, 17 Defendant. [18] 19 ----oo0oo---- 20 Robert and Amie Panicacci (“plaintiffs”), as legal 21 guardians and parents of G.P., initiated this action against West 22 ADA School District #2 (“defendant”) alleging violations of the 23 Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §§ 1400 et 24 seq., the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 25 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 26 794. (See First Am. Compl. (Docket No. 32).) Before the court 27 are defendant’s motion for summary judgment as to all claims and 28 plaintiffs’ motion for partial summary judgment as to review of 1 the hearing officer’s decision on plaintiff’s IDEA claim.1 2 (Docket Nos. 41, 43.) 3 I. Background 4 A. Undisputed Facts 5 In September 2020, plaintiffs and their child, G.P., 6 moved from California to Idaho. (Def.’s Statement of Undisputed 7 Facts (“DSUF”) ¶ 9 (Docket No. 41-2).) G.P. had been diagnosed 8 with autism and received special education services at his 9 elementary school in California pursuant to an Individualized 10 Education Program (“IEP”).2 (Id. ¶ 2.) 11 G.P.’s most recent evaluation for an IEP occurred in 12 August 2017 and thus his IDEA mandated triennial assessments were 13 due.3 (DSUF ¶ 8.) The triennial assessments were not completed [14] 1 Both sides also filed motions opposing the other party’s expert report. Plaintiffs moved to exclude the report of [15] defendant’s expert, Andrea Cox (Docket No. 46), and defendant moved to strike the report of plaintiffs’ expert, Alison [16] Bickelman (Docket No. 63). For the reasons discussed at oral argument, the court will consider the arguments advanced in these [17] motions as going to the weight of the evidence, not admissibility, and will accordingly deny both motions. [18] Plaintiffs also submitted a motion for leave requesting that the court accept various materials which were filed late. [19] (Docket No. 55.) Because the delay did not result in any prejudice, the court will grant plaintiffs’ motion and accept the [20] late filings. [21] 2 An “IEP” is “a written statement for each child with a 22 disability that is developed, reviewed, and revised,” which includes things such as: “a statement of the child’s present 23 levels of academic achievement and functional performance”; “a statement of measurable annual goals, including academic and 24 functional goals”; and “a description of how the child’s progress toward meeting the annual goals . . . will be measured.” 20 25 U.S.C. § 1414 (d)(1)(A). [26] 3 Under the IDEA, a child with a disability must be 27 reevaluated “at least once every 3 years, unless the parent and the local education agency agree that a reevaluation is 28 unnecessary.” 20 U.S.C. § 1414 (a)(2)(B)(ii). 1 by the California school because of the COVID-19 pandemic school 2 closures. (See Hansen Decl., Ex. A (“Hr’g Officer Decision”) at 3 6 (Docket No. 41-4).) Further, G.P.’s IEP had expired in May 4 2020 (the “Expired IEP”). (Id. at 4.) The California school 5 prepared a new IEP dated August 20, 2020 (the “Transfer IEP”) to 6 inform defendant what services G.P. had been provided. (DSUF ¶ 7 3.) The Transfer IEP was set to expire on October 13, 2020. 8 (Id.) 9 The Transfer IEP did not contain any specific goals or 10 objectives nor any prescribed methodologies to be used for G.P.’s 11 behavior services. (DSUF ¶¶ 6-7.) Neither the Transfer IEP nor 12 the Expired IEP contained specifics about who should provide, or 13 any qualifications needed in order to provide, G.P.’s behavior 14 services. (DSUF ¶ 7; Hr’g Officer Decision at 5.) 15 On September 28, 2020, the parties met to discuss 16 G.P.’s special education needs. (DSUF ¶ 10.) Shortly 17 thereafter, G.P. began the 2020-2021 school year at defendant’s 18 elementary school. (Id. ¶ 11.) Defendant used a 19 paraprofessional to provide G.P. special education services. 20 (Id. ¶ 12.) 21 On October 13, 2020 (the day the Transfer IEP was set 22 to expire), the parties held G.P.’s first IEP meeting since 23 plaintiffs relocated to Idaho. (Id. ¶ 14.) At this meeting, 24 defendant indicated that the Transfer IEP was insufficient 25 because it did not contain any goals or objectives.4 (Id.) [26] 27 4 An IEP should contain academic and functional goals as well as describe how the child is progressing toward meeting 28 these goals. See 20 U.S.C. § 1414 (d)(1)(A). 1 Further, the parties discussed whether defendant’s use of a 2 paraprofessional was appropriate. (Id. ¶ 16.) Instead of a 3 paraprofessional, G.P.’s school in California had used an Applied 4 Behavior Analysis (“ABA”) therapist. (Id.) 5 In addition, the parties considered various goals for 6 G.P. as well as reviewed information obtained from G.P.’s 7 previous school and informal assessments collected by G.P.’s 8 current teachers. (Id. ¶ 15.) The parties used this information 9 to develop an interim IEP (the “Interim IEP”). (Id.) The 10 Interim IEP included goals and objectives in areas of 11 communications, mathematics, reading, writing, and social12 emotional needs. (Id. ¶ 17.) Defendant then began providing 13 G.P. with special education services consistent with the Interim 14 IEP. (Id.) 15 Two weeks later, the parties held another IEP meeting. 16 (Id. ¶ 18.) At this meeting, defendant indicated that various 17 assessments were needed. (Id.) 18 On November 11, 2020, the parties held yet another 19 meeting during which plaintiffs agreed to some of the assessments 20 requested by defendant. (Id. ¶ 19.) However, plaintiffs would 21 not agree to any behavior assessments. (Id.) 22 After the November meeting, plaintiffs were sent a 23 consent form so defendant could proceed with their requested 24 assessments. (Id. ¶ 20.) Plaintiffs signed the consent form, 25 but specifically excluded the requested behavior assessment and 26 added a note explicitly denying consent for any behavior 27 assessment. (Id.) To date, plaintiffs have not authorized 28 defendant to conduct any behavior assessments. (Id. ¶ 21.) 1 While attending defendant’s school, G.P. has been 2 accompanied by a paraprofessional for most, if not all, of his 3 school day. (Id. ¶ 22.) The paraprofessional provides one-on4 one special education services in G.P.’s general education 5 classroom, during lunch, and at recess. (Id. ¶ 27.) 6 B. Procedural History 7 On March 2, 2021, plaintiffs submitted a Due Process 8 Complaint to the Idaho Department of Education. (Hr’g Officer 9 Decision at 1.) A due process hearing was held on May 26-27, 10 2021, and the hearing officer found that defendant did not deny 11 G.P a “free appropriate public education” (a “FAPE”) under the 12 IDEA. (Id., at 12-14.) 13 Plaintiffs then filed this action seeking review of the 14 hearing officer’s decision. (See Docket No. 1.) On May 5, 2022, 15 this court granted plaintiffs’ motion to amend to add claims 16 under the ADA and RA. (See Docket No. 30.) 17 II. Legal Standard 18 “Summary judgment is appropriate when, viewing the 19 evidence in the light most favorable to the non-moving party, 20 there is no genuine dispute as to any material fact.” Acosta v. 21 City Nat’l Corp., 922 F.3d 880, 885 (9th Cir. 2019). A material 22 fact is one that could affect the outcome of the suit, and a 23 genuine issue is one that could permit a reasonable trier of fact 24 to enter a verdict in the non-moving party’s favor. Anderson v. 25 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 26 The moving party bears the initial burden of 27 establishing the absence of a genuine issue of material fact and 28 can satisfy this burden by presenting evidence that negates an 1 essential element of the non-moving party’s case. See Celotex 2 Corp. v. Catrett, 477 U.S. 317 , 322–23 (1986). Alternatively, 3 the movant can demonstrate that the non-moving party cannot 4 provide evidence to support an essential element upon which it 5 will bear the burden of proof at trial. Id. The burden then 6 shifts to the non-moving party to set forth specific facts to 7 show that there is a genuine issue for trial. See id. at 324 . 8 Any inferences drawn from the underlying facts must, however, be 9 viewed in the light most favorable to the non-moving party. See 10 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 , 587 11 (1986). 12 III. IDEA (Claim 1) 13 A. Statutory Framework 14 The IDEA “was designed to reverse a history of 15 educational neglect for disabled children.” Timothy O. v. Paso 16 Robles Unified Sch. Dist., 822 F.3d 1105, 1109 (9th Cir. 2016) 17 (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 , 52 18 (2005)). It seeks “‘to ensure that all children with 19 disabilities have available to them a free appropriate public 20 education that emphasizes special education and related services 21 designed to meet their unique needs’ and ‘to ensure that the 22 rights of children with disabilities and parents of such children 23 are protected.’” Tamalpais Union High Sch. Dist. v. D.W., 271 F. 24 Supp. 3d 1152, 1154 (N.D. Cal. 2017) (quoting 20 U.S.C. §§ 25 1400(d)(1)(A)-(B)). These goals are achieved through the 26 development of an IEP.5 See Ojai Unified Sch. Dist. v. Jackson, [27] 5 There are multiple requirements of an IEP and a failure 28 to include such requirements constitutes a substantive violation [1] 4 F.3d 1467 , 1469 (9th Cir. 1993) (citing 20 U.S.C § 2 1401(a)(18)(D)). 3 “When a party objects to the adequacy of the education 4 provided . . . IDEA provides procedural recourse . . . .” 5 Timothy O., 822 F.3d at 1155 . “During a due process hearing, the 6 hearing officer will decide whether the school district committed 7 a substantive or procedural violation.” Id. (citing 20 U.S.C. § 8 1415(f)(3)(E)). “A substantive violation lies if a child was 9 denied a FAPE.” Id. (citing 20 U.S.C. § 1415 (f)(3)(E)(i)). For 10 procedural violations, however, a hearing officer may find a 11 child was denied a FAPE “only if the procedural violation ‘(I) 12 impeded the child’s right to a free appropriate public education; 13 (II) significantly impeded the parents’ opportunity to 14 participate in the decisionmaking process regarding the provision 15 of a free appropriate public education to the parents’ child; or 16 (III) caused a deprivation of educational benefits.’” Id. at 17 1155-56 (quoting 20 U.S.C. § 1415 (f)(3)(E)(ii)). 18 B. Standard of Review 19 “[J]udicial review in IDEA cases differs substantially 20 from judicial review of other agency actions, in which courts are 21 generally confined to the administrative record and held to a [23] of the IDEA. See id. at 1469 . The IDEA also contains procedural 24 safeguards. See id. For example, “the IDEA requires that parents be afforded a significant and collaborative role in the [25] development of a child’s IEP” and “have sufficient information to understand and participate meaningfully in all aspects of that [26] discussion.” Timothy O., 822 F.3d at 1111 -12 (citing Winkelman 27 ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007); M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 851 (9th Cir. 28 2014)). 1 highly deferential standard of review.”6 Ojai, 4 F.3d at 1471 2 (citation omitted). When reviewing a hearing officer’s 3 determination in an IDEA case, the district court should “read 4 the administrative record, consider new evidence, and make an 5 independent judgement based on the preponderance of evidence and 6 giving due weight to the hearing officer’s determinations.” 7 Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Waternberg, [8] 59 F.3d 884, 892 (9th Cir. 1995). Further, “the IDEA does not 9 empower courts to ‘substitute their own notions of sound 10 educational policy for those of the school authorities which they 11 review.’” Ojai, 4 F.3d at 1472 (quoting Gregory K. v. Longview 12 Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987) (additional 13 citations and quotations omitted). 14 C. Discussion 15 The parties’ cross-motions for summary judgment on 16 plaintiffs’ IDEA claim focus on two issues: (1) whether defendant 17 denied G.P a FAPE by using a paraprofessional instead of an ABA 18 therapist to provide behavioral services; and (2) whether 19 defendant denied plaintiffs the right to an Independent 20 Educational Evaluation (“IEE”) at public expense under 34 C.F.R. 21 § 300.502(b)(1). Because for the following reasons the court 22 finds disputed questions of material fact on each of those 23 issues, both motions must be denied. 24 1. Use of a Paraprofessional [26] 6 Some courts have explained that a motion for summary judgment which seeks review of a hearing officer’s decision is 27 “more accurately described as a judgment on the record.” G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1267 (11th Cir. 2012) 28 (citation omitted). 1 Under the IDEA, “a child with a disability who 2 transfers school districts within the same academic year, who 3 enrolls in a new school, and who had an IEP that was in effect in 4 another State” must be provided “services comparable” until a new 5 IEP is developed. See 20 U.S.C. § 1414 (d)(2)(C)(i)(II). 6 Although the statute does not define “comparable” services, 7 “comparable” is typically defined as “similar” or “equivalent.” 8 See Assistance to States for the Educ. of Child. With 9 Disabilities & Presch. Grants for Child. With Disabilities, 71 10 Fed. Reg. 46540 , 46681 (Aug. 14, 2006) (“[T]he Department 11 interprets ‘comparable’ to have the plain meaning of the word, 12 which is ‘similar’ or ‘equivalent.’”). Thus, “when used with 13 respect to a child who transfers to a new public agency . . . 14 ‘comparable’ services means services that are ‘similar’ or 15 ‘equivalent’ to those that were described in the child’s IEP from 16 the previous public agency, as determined by the child’s newly17 designated IEP Team in the new public agency.” Id. 18 To determine whether services are “similar” or 19 “equivalent,” courts compare the services and objectives as 20 articulated on a student’s IEP as well as within the school 21 context as a whole. See Sterling A. ex rel. Andrews v. Washoe 22 Cnty. Sch. Dist., No. 3:07-cv-245, 2008 WL 4865570 , at *5-6 (D. 23 Nev. Nov. 10, 2008) (finding services “comparable” where the only 24 difference was the location of the services being offered); West 25 Orange Bd. of Educ. v. B.R. o/b/o B.R., No. 21-cv-13849, 2022 WL 26 2903341, at *5 (D. N.J. July 22, 2022) (finding services were not 27 “comparable” where there was “significant differences in class 28 size, school size, student-teacher ratio, and the proportion of 1 classified students per class”). 2 Here, the only description of “Behavior Intervention 3 Services” in the Transfer IEP are the general statements relating 4 to the duration and frequency of services. (Hr’g Officer 5 Decision at 11.) The Transfer IEP stated that “Behavior 6 Intervention Services” were to be provided by a “Nonpublic agency 7 (NPA) under contract with SELPA7 or district” for 1950 minutes 8 per week. (Id. at 5.) The Transfer IEP neither specified that 9 behavior services must be provided by an ABA therapist nor 10 provided any objectives that would have indicated that services 11 provided by a paraprofessional would not meet the requirements of 12 the IEP. (DSUF ¶¶ 6-7.) 13 The Interim IEP’s description of behavior services is 14 nearly identical. It stated that “Behavior Skill Services” are 15 to be provided by a “special education teacher” for 1950 minutes 16 per week. (Hr’g Officer Decision at 7.) Like the Transfer IEP, 17 the Interim IEP did not describe or prescribe any methodologies 18 to be used with the provision of these behavior services, 19 including whether the services were to be provided by an ABA 20 therapist or paraprofessional. (Id. at 5.) 21 Although the use of an ABA therapist is not specified 22 in G.P.’s IEPs, plaintiffs argue that defendant’s use of a 23 paraprofessional to provide G.P. with behavior services under the 24 Interim IEP is not “comparable” to his California school’s use of [25] 7 A “SELPA” is an acronym for a Special Education Local Plan Area, which is a group of school districts, charter schools, [26] and County Offices of Education which provide special education 27 services to students with disabilities. See A Brief History of Special Education, SELPA Adm’rs of Cal., 28 https://selpa.info/info/legal. 1 ABA therapists. (Pls.’s Opp’n at 10-13 (Docket No. 53).) At the 2 administrative hearing, testimony showed that ABA therapists 3 differ from paraprofessionals because ABA therapists receive 4 specific developmental-disorder training, are subject to direct 5 oversight, and have more experience working with kids with 6 autism. (Pls.’ Reply at 9 (Docket No. 60); see generally Hearing 7 Transcript (Docket No. 41-5).) Further, plaintiffs’ expert 8 witness described ABA therapists as “the gold standard for 9 clients with autism” and having “more of a specialized experience 10 and education with working with kids with autism.” (Hr’g Officer 11 Decision at 13.) 12 The hearing officer concluded that plaintiffs had not 13 shown that “the behavior services [G.P.] received from 14 paraprofessionals would be any different than the services that 15 [G.P]. would receive from an ABA therapist.” (Id.) The hearing 16 officer’s decision focused on the fact that the IEPs both 17 provided for 1950 minutes per week of behavior services and did 18 not specify that behavior services be provided by an ABA 19 therapist. 20 However, that ABA therapists and paraprofessionals 21 receive different training and are subject to differing levels of 22 oversight does not mean they may not provide “comparable” 23 services. The most important question is what behavioral 24 services the treating therapists in California were in fact 25 providing to G.P. and whether the paraprofessionals in Idaho 26 could offer comparable services. The record before the hearing 27 officer and this court is insufficient to allow the court to 28 answer that question. From the existing record, the court could 1 draw either the inference that the hearing officer did or the 2 contrary inference depending upon the court’s own assessment of 3 whether the Idaho paraprofessionals are able to offer treatment 4 sufficiently similar or equivalent to what the ABA therapists 5 were able to provide and were actually providing in California. 6 Summary judgment must therefore be denied on plaintiffs’ IDEA 7 claim. 8 2. Independent Educational Evaluation (“IEE”)8 9 Federal regulations provide that parents of a child 10 with a disability have the right to an IEE “at public expense if 11 the parent disagrees with an evaluation obtained by the public 12 agency.” 34 C.F.R. § 300.502 (b)(1). Defendant takes the 13 position that it had not yet made its evaluation because 14 plaintiffs refused to allow defendant to conduct its own 15 behavioral assessment. Plaintiffs’ position is apparently that 16 they did not have to consent to defendant’s assessment, and that 17 defendant was required to make its evaluation without the benefit 18 of that assessment. 19 It is unclear why plaintiffs would not consent to the 20 behavioral assessment requested by defendant. The court can find 21 no evidence in the record that plaintiffs had anything to lose by 22 giving their consent. At the administrative hearing, plaintiffs 23 stated that they would not allow defendant to conduct a behavior 24 assessment because they “did not trust” that defendant “would be 25 unbiased.” (Hr’g Officer Decision at 8.) Plaintiffs proffer no [26] 8 An “IEE” is “an evaluation conducted by a qualified 27 examiner who is not employed by the public agency responsible for the education of the child in question.” 34 C.F.R. § 28 300.502(b)(1). 1 coherent reason why they could not have consented to defendant’s 2 assessment before concluding that it would be biased. 3 “The right to a publicly funded independent educational 4 evaluation does not obtain until there is a reevaluation with 5 which the parents disagree.” G.J. v. Muscogee Cnty. Sch. Dist., [6] 668 F.3d 1258, 1266 (11th Cir. 2012); V.M. v. North Colonie Cent. 7 Sch. Dist., 954 F. Supp. 2d 102, 118 (N.D. N.Y. 2013) 8 (“Plaintiff’s repeated failure to provide [d]efendant with 9 consent to perform updated evaluations precludes her from 10 asserting that [student] was denied a FAPE . . . .”); D.Z. v. 11 Bethlehem Area Sch. Dist., 2 A.3d 712, 729 (Pa. Commw. Ct. 2010) 12 (“The statutory scheme makes clear that it is only after the 13 [s]chool [d]istrict is granted permission to reevaluate and then 14 completes that reevaluation that [plaintiff’s] parental right to 15 request an IEE . . . vests.”). 16 Plaintiffs argue to this court that defendant’s review 17 of G.P.’s school record, including his prior IEPs, to create the 18 Interim IEP constituted an evaluation with which they disagree 19 and therefore their right to an IEE has vested. (Pls.’ Mot. at 20 3.) The regulations upon which plaintiffs rely prescribe what a 21 public agency must do when conducting an evaluation. See 34 22 C.F.R. § 300.15 (“Evaluation means procedures used in accordance 23 with §§ 300.304 through 300.311 to determine whether a child has 24 a disability and the nature and extent of the special education 25 and related services that the child needs.”); 34 C.F.R. § 26 300.304(b)(1) (“In conducting the evaluation, the public agency 27 must use a variety of assessment tools and strategies to gather 28 relevant functional, developmental, and academic information 1 about the child”). 2 These regulations do not prescribe exactly what type of 3 evaluation is sufficient to trigger a parent’s right to an IEE. 4 Further, at oral argument, the parties were unable to direct the 5 court to any regulation or caselaw purporting to show the type of 6 evaluation a school district must conduct before a parent has the 7 right to an IEE. It is reasonable to read the record to suggest 8 that defendant wanted to provide plaintiffs with an IEE but 9 needed to gather more information by first conducting its 10 behavior assessment of G.P. It is just as reasonable to read the 11 record to suggest that plaintiffs presumed that defendant’s 12 review of G.P.’s record, which was apparently sufficient to 13 create the Interim IEP, constituted an evaluation and therefore 14 plaintiffs’ right to an IEE had vested. Because reasonableness 15 is characteristically a question of fact, the court cannot make 16 that determination on summary judgment. 17 IV. ADA and RA (Claims 2 and 3) 18 Defendant also seeks summary judgment on plaintiffs’ 19 claims under the ADA and RA.9 (See generally Def.’s Mot.) 20 Because plaintiffs’ ADA and RA claims do not differ in any 21 material sense, the court will address the claims together. See 22 Zukle v. Regents of Univ. of Cal., 166 F.3d 1041 , 1045 n. 11 (9th 23 Cir. 1999) (“There is no significant difference in analysis of 24 the rights and obligations created by the ADA and the 25 Rehabilitation Act . . . Thus, courts have applied the same 26 analysis to claims brought under both statutes.”); see also A.G. [27] 9 Plaintiffs did not move for summary judgment on their 28 ADA and RA claims. 1 v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195 , 1203 2 (9th Cir. 2016) (analyzing ADA and RA claim together); Duvall v. 3 Cnty. of Kitsap, 260 F.3d 1124 , 1135-36 (9th Cir. 2001) (same). 4 “[T]o bring a suit under the ADA and Section 504 [of 5 the RA] requires the same elements: (1) the child is a qualified 6 individual with a disability; (2) she was denied a reasonable 7 accommodation that she needs to enjoy meaningful access to the 8 benefits of public services; and (3) the program providing the 9 benefit receives federal financial assistance.” McIntyre v. 10 Eugene Sch. Dist. 4J, 976 F.3d 902 , 912 (9th Cir. 2020) 11 (citations omitted). Here, the first and third factors are 12 undisputed and easily satisfied. Thus, these claims turn on 13 whether G.P. was denied a reasonable accommodation. 14 “To succeed on a failure-to-accommodate claim . . . a 15 plaintiff must show that a public entity failed to make 16 reasonable modifications that would accommodate plaintiff’s 17 disability without fundamentally altering the nature of [the] 18 program or activity, and that the accommodation would have 19 enabled the plaintiff to meet the program’s essential eligibility 20 requirements.” Selene v. Legislature of Idaho, 514 F. Supp. 3d 21 1243, 1256 (D. Idaho 2021). “Reasonableness ‘depends on the 22 individual circumstances of each case, and requires a fact23 specific, individualized analysis of the disabled individual's 24 circumstances and the accommodations that might allow him to 25 [enjoy meaningful access to the program.]’” Mark H. v. Hamamoto, [26] 620 F.3d 1090, 1098 (9th Cir. 2010) (quoting Vinson v. Thomas, [27] 288 F.3d 1145, 1154 (9th Cir. 2002)). 28 Here, plaintiffs alleged that defendant failed to 1 provide G.P. with accommodations that would allow him to access 2 defendant’s “school, its activities[,] and its programs.” (First 3 Am. Compl. ¶¶ 40, 50.) Plaintiffs make clear in their Opposition 4 that the accommodation at issue is defendant’s use of a 5 paraprofessional. (See Pls.’ Opp’n at 15-16.) As explained 6 above, whether defendants’ use of a paraprofessional is 7 “comparable” to an ABA therapist is a disputed question of fact. 8 For similar reasons, whether defendants’ use of a 9 paraprofessional, in lieu of an ABA therapist, was reasonable 10 under the ADA and RA is a disputed question of fact. 11 As part of their ADA and RA claims, plaintiffs allege 12 that defendant acted “intentionally, with willful misconduct, or 13 with deliberate indifference . . . .” (See First Am. Compl. ¶¶ 14 46, 54.) Under the ADA and RA, “[a] public entity can be liable 15 for damages . . . if it intentionally or with deliberate 16 indifference fails to provide meaningful access or reasonable 17 accommodation to disabled persons.” McIntyre, 976 F.3d at 912 18 (quotation and citation omitted). A defendant “acted with 19 deliberate indifference if it (1) had knowledge that a harm to a 20 federally protected right is substantially likely, and (2) failed 21 to act upon that likelihood.” Mark H., 620 F.3d at 1099 22 (quotation and citation omitted). 23 Here, it is undisputed that defendant was aware of 24 G.P.’s autism diagnosis and need for behavioral services. 25 However, whether defendant had any knowledge that providing G.P. 26 with paraprofessionals instead of ABA therapists would deny him 27 access his education, and therefore acted with deliberate 28 indifference towards G.P.’s needs for behavioral services, is a 1 disputed question of fact. Accordingly, defendant’s motion for 2 summary judgment on plaintiffs’ ADA and RA claims will be denied. 3 IT IS THEREFORE ORDERED that defendant’s motion for 4 summary judgment (Docket No. 41) and plaintiffs’ motion for 5 partial summary judgment (Docket No. 43) be, and the same hereby 6 are, DENIED. 7 | Dated: August 17, 2023 □□ tteom. Ad. bt—~ WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE