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Aaron P., and Puakielenani P. In Their Capacity As Parents and Legal Guardians of v. Department of Education

October 31, 2011


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


Before the Court is an appeal by Plaintiffs Aaron P. and Puakielenani P.,*fn1 in their capacity as parents and legal guardians of Student K. (collectively "Plaintiffs"), of the Administrative Hearings Officer's ("Hearings Officer") Findings of Fact, Conclusions of Law and Decision ("Decision"), filed on September 3, 2010. Plaintiffs filed their Opening Brief in the instant case on March 22, 2011. Defendant the Department of Education, State of Hawai`i ("the DOE" or "Defendant") filed its Answering Brief on May 17, 2011, and Plaintiffs filed their Reply Brief on May 31, 2011. The Court heard oral argument in this matter on June 27, 2011. Appearing on behalf of Plaintiffs was Magali Sunderland, Esq., and appearing on behalf of Defendant was Michelle Puu, Esq. Pursuant to this Court's order, the parties submitted supplemental briefing after the hearing. Plaintiffs filed their supplemental memorandum on August 10, 2011; Defendant filed its supplemental memorandum on August 17, 2011; and Plaintiffs filed their supplemental reply brief on August 24, 2011. After careful consideration of the parties' submissions, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY AFFIRMED IN PART AND REMANDED IN PART because, although the Court agrees with the Hearings Officer's rulings on Plaintiffs' claims based on evaluation and on the four individualized educational program ("IEPs") specifically addressed in the Decision, the Court must remand the case so that the Hearings Officer can address Plaintiffs' claims based on the other IEPs and Prior Written Notices ("PWN") that Plaintiffs challenged in their Request for Impartial Hearing ("RIH"), but which the Hearings Officer did not specifically rule upon in the Decision.


I. Factual and Administrative Background

At the time of the Decision, Student K. (or "Student") was almost seven years old. The Decision addresses her prior attendance at Kamali`i Elementary School ("Kamali`i") and her private placement at the Pacific Autism Center ("PAC").*fn2 In 2004, Student K. began an early intervention services program on O`ahu after undergoing a Department of Health ("DOH") evaluation prior to her first birthday. Her pediatrician diagnosed her with developmental delay and low muscle tone. Student K.'s family moved to Maui in 2005, and Student K. continued her early intervention services through IMUA Family Services ("IMUA"). Student K. entered the DOE system in the 2006-2007 school year. She was found eligible for special education services and the related services of occupational therapy and speech language therapy in the category of developmental delay (ages 3-5). [Decision at 6.*fn3 ]

Plaintiffs obtained private psychological examinations of Student K. on October 13, 2006 and January 30, 2007.

Ellen Caringer, Ph.D., diagnosed Student K. with Pervasive Developmental Disorder - Not Otherwise Specified ("PDD-NOS"), which is an autism spectrum disorder ("ASD"), and Moderate Mental Retardation ("MMR"). [Id. at 2, 6.] Dr. Caringer recommended that Student K. receive: "(a) maximum levels of speech therapy; use of other communication mechanisms; (b) use of a 1:1 aide; (c) consultation with an autism specialist to develop the IEP; and (d) occupational therapy and physical therapy consultation and intervention . . . ." [Id. at 6.] Also in the first half of 2007, Plaintiffs obtained private occupational therapy and physical therapy evaluations. [Id. at 7.]

In the 2007-2008 school year, Student K. attended pre-school at Kamali`i in a fully self-contained special education ("SPED") classroom. She received 120 minutes per quarter of occupational therapy, sixty minutes per week of speech language therapy, physical therapy consultation services, one-on-one adult support, the services of a Behavior Intervention Services Specialist ("BISS"), and the services of an Autism Consulting Teacher ("ACT"). There were four IEP meetings during that school year: August 10, 2007, November 2, 2007, February 14, 2008, and April 8, 2008. [Id. at 8.]

In the 2008-2009 school year, Student K. continued pre-school at Kamali`i, with almost the same services and supports that she received the previous year, except that the amount of occupational therapy she received varied during the year, and she also received an Extended School Day ("ESD") program at home with one-on-one adult support. IEP meetings convened on the following dates for the 2008-2009 school year: July 29, 2008; August 1, 2008; August 22, 2008; September 8, 2008; September 22, 2008; November 24, 2008; December 9, 2008; May 11, 2009; May 18, 2009; and June 23, 2009. [Id. at 9-10.]

On November 25, 2008, Plaintiffs obtained a private physical therapy evaluation. Carol Riccio, M.S., P.T., recommended that Student K. receive physical therapy. [Id. at 11; ROA, Pets.' Exh. 36 (evaluation dated 11/25/08).] On December 3, 2008, Plaintiffs obtained a comprehensive psychological evaluation of Student K. from the Resnick Neuropsychiatric Hospital Autism Evaluation Clinic at the University of California Los Angeles ("UCLA Evaluation"). [Decision at 11; ROA, Pets.' Exh. 35 (UCLA Evaluation).] On March 26-27, 2009, Plaintiffs obtained a private psychological consultation. Colin B. Denney, Ph.D., diagnosed Student K. with Autistic Disorder and MMR and made various recommendations. [Decision at 2, 11-12; ROA, Pets.' Exh. 62 (evaluation dated 3/26-3/27/09).]

At the May 18, 2009 IEP team meeting, the team had its first opportunity to review the UCLA Evaluation. [Decision at 11 n.15, 12.] The IEP team agreed that the DOE would conduct speech, cognitive, and physical therapy assessments of Student K. The DOE completed the three assessments during the month of July 2009. [Id. at 12.] The Hearings Officer noted that the DOE had been attempting to conduct a physical therapy evaluation of Student K. since November 2008, but Plaintiffs did not consent to the evaluation until sometime after May 18, 2009 because they did not believe that the DOE could provide an unbiased evaluation. [Id. at 12 n.16.]

On July 2, 2009, Student K.'s eligibility team met and determined that she remained eligible for IDEA services under the category of multiple disability - autism. [Id. at 12.]

Plaintiffs removed Student K. from Kamali`i after the 2008-2009 school year and placed her at PAC, a facility on Oahu for children with ASDs. [Id. at 17.]

On July 15, 2009, Plaintiffs filed the RIH with the Office of Administrative Hearings, Department of Commerce and Consumer Affairs. The RIH argues that:

For the school years 2007-08 and 2008-09 [Student K.'s] IEPs have not provide (sic) appropriate services or placement for her. Her goals and objectives have not been adequate or appropriate to address her deficits, nor have her needs been adequately identified. Moreover, the DOE has failed to provide all services as stated in [Student K.'s] IEP for the above stated school years. Due to the DOE's failure to offer a [free appropriate public education ("FAPE")] for the past two years, and for the 2009-10 school year, [Plaintiffs] will be relocating to the island of Oahu and will be placing [Student K.] at the Pacific Autism Center. . . . [ROA at 5.] The RIH sought:

a). A finding that the IEPs, including the IEPs of April 8, 2008, September 8, 2008, May 18, 2009 and June 23, 2009, violate the IDEA and have not offered FAPE to [Student K.] for the past two years, and for the 2009-10 school year;

b). A finding that the DOE committed procedural and substantive violations of the IDEA, including but not limited to failing to properly evaluate [Student K.], failing to develop appropriate goals and objectives, failing to offer appropriate services or programs to meet her unique needs, and/or failing to implement [Student K.'s] IEPs;

c). Reimbursement to [Plaintiffs] for school tuition, services and related expenses (including travel related expenses) paid to the Pacific Autism Center, and/or payment of school, services tuition and related expenses at the Pacific Autism Center from August 3, 2009 (including travel related expenses), pursuant to 20 U.S.C. § 1412(a)(10)(C);

d). An assessment needs to be conducted to determine [Student K.'s] educational needs with respect to communication.

e). An academic assessment needs to be completed to determine [Student K.'s] current academic strengths and weaknesses as well as where she is with respect to academic standards.

f). A behavioral intervention plan needs to be developed and implemented;

g). [Student K.] needs an increase in her direct speech therapy services;

h). [Student K.] needs direct occupational therapy and/or physical therapy service) (sic);

i). [Student K.] needs intensive autism-specific education/training, including the use of ABA/Verbal Behavior,[*fn4 ] both in the classroom and in the home setting, provided by skilled and knowledgeable therapists;

j). Reimbursement to [Plaintiffs] for the cost of private evaluation conducted by the UCLA Medical Center, Kiegan Blake (OT), Carol Riccio, RPT, and Colin Denney, Ph.D.;

k). Compensatory education;

l). Attorney's fees and costs. [ROA at 6.]

After various continuances, the due process hearing convened on February 10 and 11, 2010, March 23, 2010, and May 5 and 6, 2010. [Decision at 3-5.] The parties submitted written closing briefs and proposed findings of fact and conclusions of law. The Hearings Officer filed the Decision on September 3, 2010, due in part to her unexpected medical leave. [Id. at 5.]

In the Decision, the Hearings Officer framed the issue in the RIH as whether the IEP drafted at the April 8, 2008 meeting ("4/8/08 IEP"), the IEP drafted at the September 8, 2008 meeting ("9/8/08 IEP"), the IEP drafted at the May 18, 2009 ("5/18/08 IEP"), and the IEP drafted at the June 23, 2009 meeting ("6/23/09 IEP") offered Student K. a FAPE. [Id.]

The Decision summarized Student K.'s history of private and DOE evaluations and IDEA services from the time she entered the DOE system through the period at issue in the RIH. [Id. at 6-17.] The Hearings Officer found, inter alia:

45. When the DOE [Speech Language Pathologist] first began working with Student in Fall 2006, Student had a difficult time sitting at a table and attending to her speech sessions. Student had no interest in objects, no appropriate play skills and did not engage in any social interaction. During the 2007-2008 school year, Student did not verbalize or initiate requests of any time (sic). Student used sign approximations (approximations of American Sign Language signs) and the Picture Exchange Communication System ("PECS"). Student required a reliable mode of communication that would be understood by a majority of people. PECS was determined to be the most appropriate method of communication for Student.

46. During the 2008-2009 school year, . . . Student needed to be prompted to use her PECS book. At the end of the year, Student was consistent in using her PECS book to request things and used approximately 100 PECS icons/photos to communicate.

47. Student made educational progress on her speech and communication goals.

50. Student made educational progress on her occupational therapy goals and objectives.

52. According to the DOE [Physical Therapist], Student was able to access her class room and the school environment, including the play ground and school field. Student could ambulate and navigate the school campus and carry her educational materials from class to class. As such, Student did not require direct physical therapy services.

54. The DOE SPED Teacher worked with Student from the 2006-2007 school year to and including the 2008-2009 school year. He testified that during the 2007-2008 and the 2008-2009 school years, Student had an intense, highly structured education program that was specifically designed for her individual needs.

56. Student's educational program, an intensive program based extensively on ABA principles, was provided to her five days a week from 8:15 a.m. to 2:45 p.m. (2:00 p.m. on Wednesdays) and from 3:45 p.m. to 5:30 p.m., in the class room, recess, the cafeteria/lunch time, at home and in the community.

57. Student's IEPs were developed with information and input from Student's teachers, related service providers, Parents, data collected for Student, and assessments and evaluations conducted by [the DOE], and assessments evaluations (sic) from private providers shared by Parents, quarterly reports submitted by the BISS, observations, IEP and other progress reports, and classroom work. [Id. at 13-15 (citations omitted).] Ultimately, the Hearings Officer found that,

69. Student's placement, special education pre-school program with pull-outs for 1:1 teaching for discrete trial training [("DTT")], speech, occupational therapy and sensory regulation, was required to ensure she was provided with appropriate opportunities for learning. Student's placement was in the least restrictive environment and allowed her to learn and benefit from her IEP goals and objectives. Student was provided the opportunity to interact with special education peers and typical peers in various school settings. [Id. at 17.]

In her conclusions of law, the Hearings Officer divided the issues that Plaintiffs raised into two categories -evaluation, and program/placement. As to evaluation, Plaintiffs contended that the DOE failed to consider the private evaluations that Plaintiffs provided and that the DOE failed to complete the evaluations agreed upon during the May 18, 2009 IEP team meeting in a timely manner. [Id. at 19.] After reviewing the recommendations and observations of the private providers as compared to those of DOE personnel, [Id. at 19-22,] the Hearings Officer concluded that the related services that the DOE offered to Student K. during the 2007-2008 and the 2008-2009 school years "addressed her unique needs and provided her with adequate support services to take advantage of educational opportunities."

[Id. at 22.] The Hearings Officer also concluded that the DOE completed the agreed upon evaluations in a timely manner once Plaintiffs provided their consent to the evaluations. [Id.]

As to program and placement, Plaintiffs contended that: the DOE failed to offer Student K. an appropriate, autism-specific program or services, including ABA; the DOE special education pre-school setting could not meet Student K.'s needs, even with accommodations; Student K. needed direct physical therapy services, and additional occupational therapy and speech language therapy services; Student K.'s IEPs did not have either adequate identifications of her needs or appropriate goals and objectives; and the services called for in Student K.'s IEPs were not fully implemented. [Id. at 19.] The Hearings Officer concluded that the IEPs adequately identified Student K.'s strengths and needs and that the goals and objectives in the IEPs were appropriate and were reasonably calculated to enable her to receive educational benefit. [Id. at 22-24.] As to Plaintiffs' claim that the DOE failed to provide some of the services called for in Student K.'s IEPs, the Hearings Officer concluded that Plaintiffs did not provide sufficient evidence to prove that Student K. was denied the agreed upon parent education services or that she received less than the specified number of occupational therapy minutes. [Id. at 24.] The Hearings Officer also concluded that the challenged IEPs provided Student K. with an autism-specific program, including related and consultative services appropriate to her needs, that was reasonably calculated to allow her to receive educational benefit. [Id. at 25-26.]

The Hearings Officer therefore concluded that Plaintiffs failed to prove that the challenged IEPs denied Student K. a FAPE because the placement offered in the challenged IEPs "was offered in the least restrictive environment and appropriate for her unique needs." [Id. at 26-27.] The Hearings Officer dismissed the RIH and found the DOE to be the prevailing party. [Id. at 27.]

The instant action followed.

II. Plaintiffs' Opening Brief

Plaintiffs' first major argument is that the DOE did not perform a comprehensive evaluation of Student K.'s suspected autism until shortly before her private placement, and therefore Student K.'s program could not adequately address her needs and did not enable her to make any meaningful progress. Specifically, Plaintiffs argue that: 1) the Hearings Officer over-simplified the issues presented in the RIH; 2) the Hearings Officer committed reversible error in failing to acknowledge Student K.'s educational history beyond the statute of limitations period; 3) the Hearings Officer erred in characterizing Student K.'s self-injurious behaviors ("SIBS") as emerging communication attempts; 4) the DOE's failure to evaluate Student K.'s autism constituted a procedural denial of a FAPE; 5) the DOE failed to provide Student K. a "basic floor" because her IEPs resulted in minimal academic and functional progress; 6) the contested IEPs denied Student K. a FAPE because her providers were not trained in ABA techniques, the DOE failed to implement various aspects of the contested IEPs, and Student K. was incapable of following the regular pre-school program at Kamali`i because of her lack of communication and other skills; and 7) Plaintiffs are entitled to reimbursement for their expenses at PAC because PAC was the least restrictive environment available for Student K.

Plaintiffs argue that the Court should not accord deference to the Decision because, "although it is prolix and contains a plethora of information," the Hearings Officer did not cite the facts that she relied upon in reaching her conclusions of law and her findings of fact were not supported by the record. [Opening Br. at 32-33.]

A. Alleged Factual Errors and Limitation of the Issues

Plaintiffs contend that the Hearings Officer improperly limited her review to the 4/8/08 IEP, the 9/8/08 IEP, the 5/18/09 IEP, and the 6/23/09 IEP. Plaintiffs argue that they "pled and presented evidence of the inadequacy of 11 IEPs and their accompanying PWNs, and two additional PWN's (sic) beginning in 2007-2008 and concluding with the 7/17/09 IEP prior to [Student K.'s] placement at PAC in 7/09." [Opening Br. at 11 (citing RIH).] Plaintiffs assert that the Hearings Officer's improper limitation of the scope of the RIH led to other misperceptions in the Decision.

Plaintiffs argue, in making findings about the adequacy of Student K.'s IEPs, the Hearings Officer did not specify which IEPs she was referring to and failed to recognize the fact that each IEP change was apparently a failed attempt to address Student K.'s severe global deficits. Plaintiffs emphasize that, although the DOE knew of Student K.'s deficits since July 2006, her IEPs did not reflect eligibility for services under autism until the June 23, 2009 IEP. [Id. at 12.]

Based on the special education teacher's testimony, with which the ACT and the BISS agreed, the Hearings Officer also found that, during the 2007-2008 and the 2008-2009 school years, Student K. had "an intense, highly structured, educational program designed for her individual needs." [Decision at 14, ¶ 54; id. at 15, ¶ 58, 16, ¶ 62.] Plaintiffs argue that this finding was not supported by the record because the many incremental changes to Student K.'s IEPs indicate that the intensity of her program varied a great deal over the period in question. [Opening Br. at 12-13.] Plaintiffs argue that Student

K.'s IEPs could not represent a floor of educational opportunity because it was "constantly shifting beneath Student K.'s already globally deficient, unstable feet". [Id. at 23 n.9.]

Plaintiffs contend that the Hearings Officer erred in analyzing Student K.'s progress over the entire three years she was in the DOE system, rather than looking at her progress on an annual basis. Further, the Hearings Officer relied upon anecdotal testimony rather than on objective data. [Id. at 13.] Plaintiffs also argue that the Hearings Officer's finding that Student K. did not require direct physical therapy services was erroneous in light of the fact that the DOE did not conduct a core strength physical therapy evaluation and in light of the private physical therapy assessments that Plaintiffs obtained. [Id. at 13-14.]

B. Educational History Beyond the Statute of Limitations

Plaintiffs acknowledge that there is a statute of limitations issue in this case, and they will stipulate that they can only recover for actions that the DOE undertook, or failed to undertake, during the limitations period, i.e. within two years prior to the July 15, 2009 RIH. [Opening Br. at 33-34.] Plaintiffs, however, emphasize that the DOE had a continuing duty to conduct a comprehensive evaluation of Student K. because it failed to conduct a comprehensive evaluation upon her enrollment. Plaintiffs argue that the DOE breached this duty until it administered the Assessment of Basic Language and Learning Skills ("ABLLS") in July 2009. [Id. at 33.] Plaintiffs also argue that the Hearings Officer should have considered events occurring before the limitations period for context. [Id. at 34.]

Further, the August 10, 2007 IEP team was erroneously configured because it did not have an autism specialist. [Id. (citing Resp. Ex. 7, p. KP-0043).] As a result, there was no one present at the meeting who could interpret any objective evidence of Student K.'s lack of progress. Plaintiffs also argue that the IEP team failed to consider either the DOE annual progress reports or available cognitive/academic assessment results in formulating the IEP. [Id. at 35-36.] Plaintiffs contend that the failure to consider Student K.'s lack of progress resulted in the formulation of an inadequate IEP, and this same faulty process was repeated in the IEP team meetings on November 2, 2007, February 14, 2008, and April 8, 2008. [Id. at 36-37 (citing Pet. Ex. "16", p. 299 (11/2/07), "15", p. 277 (2/14/08), "14", p. 253 (4/8/08); Resp. Ex. "27", p. KP-155).] Plaintiffs contend that, had the IEP team properly examined Student K.'s lack of progress, it would have known that a comprehensive evaluation was necessary and the team could have implemented autism-supporting SPED and related services.

C. SIBS v. Emerging Communication Attempts

Plaintiffs argue that this Court reviews administrative findings of fact for clear error. [Id. at 40.] Plaintiffs argue that the Hearings Officer's finding that Student K.'s SIBS - "crying, dropping to the floor, head banging" - were emergent communication attempts. The Hearings Officer overlooked credible witness testimony that these behaviors were signs of Student K.'s anxiety and frustration because of her inability to communicate. [Id. at 41 (citing TR Vol. III, p. 593, L. 18-21, p. 606, L.24-p. 607, L. 245).] Plaintiffs contend that the Hearings Officer's finding was clear error and/or plain error.

D. Failure to Evaluate Suspected Autism

Plaintiffs contend that the DOE's failure to conduct a comprehensive evaluation in light of Student K.'s suspected autism constitutes a procedural denial of a FAPE. They argue that the Hearings Officer did not address the fact that the DOE failed to conduct a comprehensive evaluation for Student K.'s suspected autism until late July 2009 and that this delay affected her eligibility, progress, and the adequacy of the educational floor that her IEPs created. Even the DOE's objective data showed that Student K. did not progress until the time of the UCLA Evaluation. [Id. at 14-15.] At the May 18, 2009 IEP meeting, however, the IEP team rejected the recommendations in the UCLA Evaluation. [Id. at 16 n.4.] Thus, Plaintiffs argue that the "[f]ailure to comprehensively evaluate caused significant delay in the creation and implementation of appropriate foundationally targeted educational interventions . . . contradicting [the Hearings Officer's] conclusion that there is no evidence of harm[.]" [Id. at 17 n.4 (citing Pet.

Exh. "33").] Plaintiffs note that the DOE did not provide any reason for the delay in conducting an autism specific assessment and, an increase in Student K.'s ABA-DTT services was recommended after the assessment. Plaintiffs had previously requested these changes, but the DOE denied the requests and Student K. did not receive those services until she was at PAC. [Id. at 18-19 n.4.]

Plaintiffs point out that the DOE had notice since July 2006 that a potential autism diagnosis was responsible for Student K.'s poor performance. [Id. at 42 (citing Pet. Ex. "71", pp. 1061-62; Pet. Ex. "35").] The DOE, however, failed to obtain a timely initial comprehensive evaluation and failed to inform Plaintiffs that it would reimburse them if Plaintiffs obtained such an evaluation themselves. Plaintiffs argue that the failure to conduct a comprehensive initial evaluation resulted in the failure to develop and implement an IEP that would deliver a FAPE to Student K., and this failure continued through the attachment of liability on July 15, 2007. [Id.]

Plaintiffs note that the DOE issued a September 6, 2007 Prior Written Notice ("PWN"), without calling an IEP team meeting, noting that it sought various assessments of Student K., which the DOE called "reevaluations". [ROA, Pets.' Exh. 18.] Plaintiffs, however, argue that the assessments could not have been reevaluations because the DOE never conducted a comprehensive evaluation of Student K. in the first place. [Opening Br. at 19.] Plaintiffs assert that "[g]lobal developmental delays, autism, MR, fine and gross motor impairments, and visual impairments were all suspected that triggered DOE's duty to undertake a comprehensive evaluation in all areas of suspected disability[.]" [Id. at 23 n.10 (citing 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4) & (c)(6)).] Plaintiffs argue that, while the Hearings Officer may have been correct that the DOE, Plaintiffs, and the private evaluators agreed about Student K.'s levels of performance, the Hearings Officer failed to recognize that, without knowledge of the cause of Student K.'s needs, the IEP could not formulate appropriate interventions. [Id. at 23 n.11.] Thus, even after the team reviewed the UCLA Evaluation, it did not adequately develop and/or implement "[n]ecessary Autism-specific supports and related services", and Student K. did not receive these until she enrolled at PAC. [Id. at 24 n.11.]

Plaintiffs also complain that the DOE issued another PWN on October 6, 2007 making various changes to Student K.'s program, including specifying that "picture schedule, PECS signs" would be used in her classroom. [ROA, Pets.' Exh. 17.] First, Plaintiffs note that the changes to Student K.'s program were based upon her developmental delays, which had not changed since she enrolled in the DOE system in 2006. Plaintiffs state that this "was the first in a long line of IEP changes based solely upon pre-existing knowledge of Student K.'s needs from 6/06-7/09, which DOE failed to timely implement." [Opening Br. at 20-21 (citation omitted).] These changes based on pre-existing knowledge show that the DOE failed to adequately address Student

K.'s needs upon her initial enrollment. [Id. at 23 n.9.] In summary, Plaintiffs argue that [r]egardless of when DOE's ad hoc evaluations were administered, no evaluation or series of DOE partial evaluations, assessments, tests, consultations, observations, and/or reports administered by the DOE, either in whole or in part, amounted to the comprehensive evaluation required under IDEA to follow-up on the suspected Autism and Developmental Coordination Disorder, sufficient to allow the IEP team to develop, create and implement an appropriate IEP . . . . [Id. at 27-28 (footnote omitted).] Plaintiffs argue that the DOE procedurally denied Student K. a FAPE, and therefore the Court need not reach the question of substantive compliance if the procedural denial resulted in the loss of educational opportunities or caused a deprivation of educational benefits. [Id. at 45 (citing 20 U.S.C. § 1400 et seq.; N.B. and C.B. v. Hellage Elem. Sch. Dist., 541 F.3d 1202, 1207 (9th Cir. 2008)).]

Plaintiffs also raise three sub-issues regarding the evaluations of Student K. First, Plaintiffs argue that the Hearings Officer erred in finding that the DOE completed its evaluations in a timely manner after Plaintiffs gave their consent. Plaintiffs assert that they never withheld consent for evaluations of Student K. Further, even if parents temporarily withhold consent to a particular evaluation, that does not relieve the DOE from its duty to conduct a comprehensive evaluation of the student. [Id. at 45.]

Second, Plaintiffs argue that the Hearings Officer committed reversible error in treating the DOE's evaluations in July 2009 as interchangeable with the UCLA Evaluation. Plaintiffs argue that the Hearings Officer should have assessed whether the IEP team responded appropriately to the comprehensive UCLA Evaluation and whether the IEP team's failure to adopt the UCLA Evaluation negatively impacted Student K.'s learning. Plaintiffs contend that the reason the DOE insisted upon its own evaluations was to avoid the ASD diagnosis and to avoid providing the intensive services necessary to address it. [Id. at 46-47.]

Third, Plaintiffs argue that the Hearings Officer failed to consider Plaintiffs' private evaluations of Student K., as well as the DOE's failure to conduct its own evaluations, until confronted with the results of the private evaluations. [Id. at 47-48.] The Hearings Officer expressly found that Student K. had not seen a private speech pathologist, when in fact Student K. had done so, and the speech pathologist testified at the hearing. Further, the Hearings Officer did not refer to the testimony of Plaintiffs' witnesses and providers, including Mary Marasovich and Carol Riccio in the Decision. Plaintiffs argue that those witnesses' testimony and reports were relevant to the assessment of Student K.'s needs, which was a central issue in the case, particularly in light of the fact that the Hearings Officer found that there was a factual dispute regarding the nature and severity of Student K.'s communication needs. Moreover, the Hearings Officer relied upon individual witnesses' subjective descriptions of the severity of Student K.'s needs, and those could have differed from one professional to another. [Id. at 48-49.]

E. Provision of a "Basic Floor"

Plaintiffs argue that the DOE did not provide Student K. with a basic floor of opportunity at Kamali`i, as evidenced by the fact that she made only trivial progress during her three years there and she regressed in some areas. They also argue that the Hearings Officer's finding that Student K.'s goals and services were adequate is contradicted by Student K.'s lack of progress, particularly where she remained non-verbal in spite of the fact that she exhibited a preference for vocalizing. [Id. at 53-54.] Plaintiffs also emphasize that they, as well as others including the BISS, the UCLA evaluators, and PAC, consistently asked "for an increase in [S]tudent K.'s opportunities for learning." [Id. at 54 (citing Appx. C).]

F. Whether the Program & Placement Provided a FAPE

1. ABA Techniques

Although the Hearings Officer concluded that the DOE provided Student K. with ABA based strategies and techniques, Plaintiffs argue that the DOE did not provide timely training for Student K.'s providers in ABA strategies and DTT. [Id. at 55 (citing hearing testimony).]

2. Failure to Implement Aspects of Student K.'s IEPs

Plaintiffs argue that a material failure to implement a student's IEP constitutes a violation of the IDEA. The materiality standard does not require a showing of harm to the student, but the lack of educational progress may be probative on the issue whether the shortfall in services was significant. [Id. at 56 (citing Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 778 (9th Cir. 2007)).]

a. Inadequate DTT Implementation

Plaintiffs argue that the following DOE omissions denied Student K. a FAPE: failure to formulate a plan for DTT programing; and failure to collect data to document progress toward DTT targets for the 2007-2008 school year. [Id. at 57 (citing RA, Vol. III, p. 637, L. 6-17).] Plaintiffs emphasize that the ACT stated that Student K. "suffered actual harm in that she 'lost time' for two-years at Kamali`i." [Id. (quoting Pet. Ex. "60"; Recording 9/8/08 IEP Meeting, 23:10 Time Stamp).]

b. Signing Goal/Objective

The July 8, 2008 IEP included "sign" as a goal/objective for Student K.'s communication. [Id. at 57.] Plaintiffs state that the DOE never implemented this goal/objective. Although Student K. had a limited ability to sign, and it was her preferred method of communication when she entered the DOE system, none of the DOE staff who worked with her knew American Sign Language ("ASL"). Plaintiffs argue that the failure to implement sign was a "material failure to implement the IEPs and PWNs which mandate that multi-functional communication modalities be offered, supported, and taught." [Id. at 20 n.5.] If Student K.'s IEP team made a conscious decision to eliminate sign from her IEP, Plaintiffs argue that this was a significant procedural and substantive error because the DOE failed to indicate the change in a PWN and the team did not discuss the matter at a meeting. [Id.]

Plaintiffs argue that the failure to implement the signing goal/objective was critical because Student K. could not communicate her needs, which put her at risk of developing problematic behavior, and because she was approaching the end of the developmental age window where "'there are likely to be explosions of words'". [Id. at 58 (quoting RA, Vol. I, p. 57, L. 19-24).]

c. Pointing Objective

Student K.'s August 10, 2007 IEP targeted "'pointing to body parts.'" [Id. at 59 (quoting Pet. Ex. "19", p. 358).] Student K.'s special education teacher, BISS, and speech therapist, however, refused to implement this because they believed that it would encourage her to be rude and demanding. [Id. at 59-60 (quoting RA, Vol. III, p. 631, L. 7 to p. 632, L. 13).] In fact, they discouraged her from pointing by redirecting her to her PECS book or other picture icons. [Id. at 62 (citing RA, Vol. I, p. 632, L. 10-13).]

Thus, Student K. was unable to point, except to her PECS on an inconsistent basis, when she enrolled in PAC. She could only communicate by pulling a person toward what she wanted and by engaging in SIBS. Plaintiffs argue that pointing is a critical step in the development of communication abilities. [Id. at 60-61.] Once at PAC, Student K. ...

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