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M.N., Individually and On Behalf of Her Minor Child v. State of Hawaii

December 1, 2011

M.N., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, A.B., PLAINTIFFS,
v.
STATE OF HAWAII, DEPARTMENT OF EDUCATION AND KATHRYN MATAYOSHI, IN HER OFFICIAL CAPACITY AS ACTING SUPERINTENDENT OF THE HAWAII PUBLIC SCHOOLS, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER AFFIRMING DECISION OF ADMINISTRATIVE HEARINGS ) OFFICER AND DENYING REIMBURSEMENT FOR PRIVATE PLACEMENT AND ATTORNEY'S FEES

ORDER AFFIRMING DECISION OF ADMINISTRATIVE HEARINGS OFFICER AND DENYING REIMBURSEMENT FOR PRIVATE PLACEMENT AND ATTORNEY'S FEES

I. INTRODUCTION.

Plaintiff M.N., proceeding individually and on behalf of her son, A.B., seeks reversal of the Findings of Fact, Conclusions of Law and Decision issued by the Administrative Hearings Officer ("AHO") regarding whether M.N. is entitled to be reimbursed for A.B.'s tuition at the Pacific Autism Center ("PAC"), a private school. The AHO's decision, issued on January 24, 2011, denied reimbursement, concluding that PAC was not an appropriate placement for A.B.

A.B.'s mother appeals the AHO's ruling, arguing that, as placement at PAC was appropriate, she is entitled to reimbursement from Defendants Department of Education for the State of Hawaii and Superintendent Kathryn Matayoshi (collectively, the "DOE") for A.B.'s tuition and attorney's fees under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. This court affirms the AHO's decision to deny M.N.'s request for reimbursement and also denies M.N.'s request for attorney's fees.

II. STATUTORY FRAMEWORK.

"The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310 (1988)). The IDEA ensures 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 and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).

To provide a free appropriate public education ("FAPE") in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education and services, conduct and implement an IEP, and determine an appropriate educational placement for the student. 20 U.S.C. § 1414.

The student's FAPE must be "tailored to the unique needs of the handicapped child by means of an 'individualized educational program' (IEP)." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982) ("Rowley") (citing 20 U.S.C. § 1401(18)). The IEP is prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, when appropriate, the child. 34 C.F.R. § 222.50; see also 20 U.S.C. § 1414(d). Local or regional educational agencies must review, and, when appropriate, revise each child's IEP at least annually. 20 U.S.C. § 1414(d)(4).

When a parent disagrees with the contents of an IEP, the parent may challenge that IEP by demanding an administrative due process hearing. See 20 U.S.C. § 1415(b)(6), (f)(1)(A). In addition, a parent may enroll the child in a private program, and, upon establishing that the pubic school failed to provide a FAPE, the parent may seek reimbursement. See 20 U.S.C. § 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370 (1985). To be awarded reimbursement, the parent must establish that placement at a private school was appropriate. Id.

III. FACTUAL AND PROCEDURAL BACKGROUND.

A.B. is an 8-year-old autistic boy with severe communication, academic, and behavioral difficulties. See Petitioners' Exs. at 1-9. He was diagnosed with autism in September 2006 and qualifies for special education. Id. at 42;

Administrative Record ("AR") at 14. From 2007 through the 2008-09 school year, A.B. attended Ewa Beach Elementary, a public school. Id. at 154. In June 2009, his mother unilaterally removed him from Ewa Beach Elementary and enrolled him at the Pacific Autism Center. Administrative Record ("AR") at 154.

PAC applies verbal behavior science and employs a method called Applied Behavioral Analysis ("ABA"). See Transcript of Proceedings ("Transcript") at 38:21 to 39:4, 40:9-15. The clinical director of PAC, Christi Reed ("Reed"), explained that PAC focuses on the "acquisition of language and how to make that functional." Id. at 39:9-10. She described verbal behavior as "breaking down the function of language so that our kids can use it every which way that they will need to help them succeed." Id. at 42:21-24. She further explained that, for A.B., "in order to acquire more advanced skills, such as traditionally viewed academic and social skills, [PAC] tr[ies] to decrease problem behavior." Id. at 72:25 to 73:1-4. According to Reed, A.B. had behavior problems that arose out of his inability to communicate his wants and needs. See id. at 70:25 to 71:1-5.

On March 1, 2010, while A.B. was attending PAC, representatives from Ewa Beach Elementary conducted an IEP meeting regarding A.B. AR at 155. M.N. attended the meeting, but a representative from PAC was unavailable. Id. PAC provided Ewa Beach Elementary with only limited information about A.B.'s educational performance in the form of a Student Status Report dated December 14, 2009. Petitioners' Ex. at 1; Respondents' Ex. at 88.

An IEP was prepared in March 2010 that identified a number of goals and objectives for A.B. in various areas, including writing, reading, math, physical education, fine arts, and health. The IEP provided for occupational therapy, as well as speech and language therapy. Id. at 10-27.

On May 28, 2010, M.N. told Ewa Beach Elementary Care Coordinator Anne Greseth-Kim ("Greseth-Kim") by telephone that A.B. would be returning to Ewa Beach Elementary the next school year. Transcript at 111:20 to 112:2. Greseth-Kim informed M.N. that M.N. had to attend a transition meeting, and that someone would contact her soon to schedule the meeting. Id. at 114:10-21. However, M.N. changed her mind and informed Greseth-Kim by letter on June, 28, 2010, that A.B. would be staying at PAC. See Petitioners' Ex. at 36. Greseth-Kim continued to try to schedule the transition ...


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