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D.S., Individually and On Behalf of Her Minor Child v. State of Hawaii

December 27, 2011


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


Before the Court is an appeal by Plaintiff D.S. ("Mother"), individually and on behalf of her minor child, J.B. (collectively "Plaintiffs"), of the Administrative Hearings Officer's ("Hearings Officer") February 7, 2011 Findings of Fact, Conclusions of Law and Decision ("Decision") dismissing Plaintiffs' Request for Impartial Hearing.*fn1 Plaintiffs filed their Opening Brief on September 12, 2011. Defendants Kathryn Matayoshi, in her official capacity as Superintendent of the Hawai'i Public Schools, and the Department of Education, State of Hawai'i (collectively "the DOE" or "Defendants") filed their Answering Brief on October 24, 2011. The Court heard oral argument in this matter on December 5, 2011. Appearing on behalf of Plaintiffs was Keith Peck, Esq., and appearing on behalf of Defendants was Monica Morris, Esq. After careful consideration of the parties' briefs, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY AFFIRMED.


I. Factual and Administrative Background

J.B. ("Student"), is fourteen years old, and is eligible to receive special education and related services under the eligibility category of autism. Student's home school is Kalama Intermediate, which he has not attended. During the 2009-10 school year, he attended eighth grade at Horizons Academy, pursuant to a prior Hearings Officer's order following a due process hearing. [Decision at 4.]

On August 16, 2010, Plaintiffs filed a Request for Impartial Due Process Hearing ("RIH"). [ROA at 1-6.] The RIH asserts that the Individualized Education Program ("IEP"), dated May 21, 2010, which proposed transitioning Student to Kalama Intermediate, is flawed for the following reasons:. . . .

b. The IEP states that [Student] will have adult support, but it is unclear whether this is 1:1 adult support or if staff will be circulated[.]

c. The service, lead and direct paraprofessional is vague. Are there any qualifications or training required of the staff implementing this service? This statement is insufficient. . . . . [Id. at 4-5.]

The RIH sought the following:

1. Order that the DOE fund student's present placement during the pendency of this action;

2. Find that the DOE violated student and parents (sic) rights and denied them FAPE;

3. Award reimbursement to Petitioners for any educational and related programs incurred by his mother this school year. He is presently at Horizons Academy;

4. find that Petitioners are the prevailing party;

5. award attorneys fees and costs in the prosecution of this and related matters; and,

6. enter such other and appropriate relief as deemed just and necessary by this court.

[Id. at 5-6.]

The due process hearing convened on December 6 and 14, 2010. [Decision at 3.] The Hearings Officer filed the Decision on February 7, 2011. The Hearings Officer framed the issues presented in the RIH as "[w]hether the May 21, 2010 Individualized Education Program ('IEP') offered student a Free Appropriate Public Education ('FAPE')." [Id. at 4.]

The Decision summarized the process for putting together the May 21, 2010 IEP at issue. [Id. at 4-8.] The Hearings Officer found, inter alia:

6. On May 21, 2010; an IEP meeting was convened for Student. According to the list of IEP meeting participants, Mother, the IEP Care Coordinator, BHS [Behavioral Health Specialist], and other DOE members of the IEP Team ("Team") attended the meeting. No one from the Private School attended the meeting. Petitioners' Exhibit "I" page 18 and Respondent's Exhibit "4" page JB 028.

7. The purpose of the May 21, 2010 IEP meeting was to revise portions of Student's annual IEP that was developed on September 14, 2009. "Additional cueing (visual and/or verbal)" and a "Behavior Support Plan" ("BSP") were added to the Supplementary Aids and Services ("SAS") portion of the IEP and the term "adult support" replaced the term paraprofessional in the SAS. TOP page 95; lines 11-15.

8. The May 21, 2010 IEP continued to offer Student: (a) 1800 minutes of special education per week on a public intermediate school campus; (b) Specialized instruction throughout the school day (Math, Science, Social Studies, and English classes would be in a special education setting and two elective classes would be in the general education setting); (c) SAS - (1) 2250 minutes per week of adult support; (2) 720 minutes per quarter to lead and direct the paraprofessional; (3) an after school program; (4) speech-language and occupational therapy consultation; (5) frequent breaks; (6) a modified curriculum; (7) individual cuing (visual and/or verbal); (8) an individual testing setting; and (9) a BSP; and (d) Extended School Year ("ESY") services (here - summer school). Petitioners' Exhibit "I" pages 16-17 and Respondent's Exhibit "4" pages JB 026-027.

9. The clarification of services and supports section of the May 21, 2010 IEP stated, among other things, that: (a) Paraprofessional services were available for and to be provided to Student 10 minutes prior to the start of the school day, throughout the entire school day, 10 minutes after the school day ended, and for 5 hours per week during Student's after school program. Petitioners' Exhibit "I" page 16 and Respondent's Exhibit "4" page JB 026.

10. Mother testified that, on Student's previous IEP, the term "adult support" was referred to as "one-to-one paraprofessional". Mother understood what the term "one-to-one paraprofessional" meant. Mother stated there was no clarification at the May 21, 2010 IEP meeting of the training, qualifications, oversight or anything else regarding Student's adult support. Mother testified that she did not know who would work with Student or what adult support meant. TOP page 12; lines 22-25, page 13; lines 1-25, and page 14; lines 8-9.

11. Mother testified that on Student's previous IEP, the term "lead and direct paraprofessional" was referred to as a "BISS" or Behavior Instructional Support Specialist. Mother stated that on May 21, 2010, the Team never discussed what this service was and who would provide or oversee the provision of this service to Student. TOP page 14; lines 13-25 and page 15; lines 1-6.. . . .

13. The IEP Care Coordinator testified that the term "adult support" was discussed at the May 21, 2010 IEP meeting. Mother did not raise any questions about the terms "adult support" or "lead and direct paraprofessional" at the May 21, 2010 meeting. TOP page 97; lines 7-9; page 99; lines 3-8; and page 111; lines 16-25.

14. The BHS testified that at the May 21, 2010 IEP meeting the Team discussed that Student required a paraprofessional in school to support all of his learning activities, including his social, communication, and safety needs. In addition, an individual to lead and direct the paraprofessional was needed to provide the paraprofessional with expertise and training as it applied to Student's unique needs. TOP page 45; lines 14-25; page 54; lines 2-10; and page 72; lines 2-6.

15. The BHS further testified that Mother did not raise the terms "adult support" or "lead and direct paraprofessional" as concerns during the meeting. At the meeting, DOE Team members went over a draft IEP line by line and solicited input and/or agreement or disagreement from Mother. TOP page 54; lines 13-21; page 75; lines ...

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