Facts

During the 2006-2007 school year, T.B. (Student) was eligible for special education based on a primary disability of autism and was entitled to an individual education program (IEP) in 6th Grade in the San Diego Unified School District (SDUSD). Student did not attend school during the 2006-2007 school year. SDUSD paid for behavior intervention services provided by a nonpublic agency at Student's home, as well as speech and language therapy and occupational therapy provided by private providers at their locations. SDUSD did not provide a teacher, and Student's mother provided educational instruction to Student at home.

Before the commencement of the 2006-2007 school year, SDUSD was aware that Student had suffered brain damage before the age of three, due to a misdiagnosis at birth of the inability of his body to metabolize Phenylalanine (PHE), Student suffered from a serious life-long medical condition known as Phenylketonuria ("PKU"), since the age of three, Student's condition required that he be fed with a special formula two or more times a day, which must be poured into a gastrostomy tube (G-Tube) in his stomach, Student could only eat foods from an extremely restricted, low-protein diet that must be carefully weighed and closely monitored, that Student's G-Tube feedings required adult supervision, and Student's mother had vigorously advocated for the special education rights of Student and other SDUSD students.

California Law provides that "gastric tube feeding" is a "specialized physical health care service" (SPHCS), which must be provided by a school nurse or by "qualified designated school personnel trained in the administration of specialized physical health care" working under the supervision of a school nurse (Qualified Person).

In October 2007, the California Office of Administrative Hearings issued a decision holding that, during the 2006-2007 school year, SDUSD had denied Student a "free appropriate public education" (FAPE) within the meaning of the Individuals with Disabilities Education Act (IDEA), and concomitant provisions of the California Education Code by failing to offer to provide a school nurse, or a Qualified Person, to administer Student's daily G-Tube feedings. In response to SDUSD's contention that a "behavioral aide" would have administered Student's G-Tube feedings had Student attended school, the OAH Decision expressly found that a "behavioral aide" was not a Qualified Person, and was not the appropriate category of SDUSD employee to administer G-Tube feedings to Student. The OAH Decision ordered SDUSD to provide a school nurse to personally assist Student with his G-Tube feeding on a daily basis in the school nurse's office.

Plaintiff alleged that SDUSD had acted with deliberate indifference, intentionally discriminated against, and retaliated against Student by ignoring California law and failing to implement the Administrative holding by not providing a school nurse or a Qualified Person to administer Student's G-Tube feedings, resulting in his exclusion from school and the benefit of being educated on campus like other non-disabled students, in violation of Section 504 and the ADA.

Result

The Court held that Plaintiff had failed to sustain their burden of establishing a genuine issue of material fact with respect to any of their claims, and granted SDUSD's motion for summary judgment on Plaintiff's Fourth, Fifth and Seventh Claims, and denied Plaintiff's motion for partial summary judgment on their Fourth Claim. The Court concluded that it had resolved all remaining claims in this consolidated action and directed the entry of a Judgment. Plaintiff filed a FRCP 41(b) motion, and intend to appeal the Court's decision.