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Department of Education v. M.F.

December 28, 2011

DEPARTMENT OF EDUCATION,
STATE OF HAWAII, PLAINTIFF,
v.
M.F., BY AND THROUGH HER PARENTS R.F. AND W.F.,
DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) AFFIRMING IN PART AND REMANDING IN PART THE NOVEMBER 18, 2010 DECISION OF ADMINISTRATIVE HEARINGS OFFICER, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPLEMENT RECORD AND TO ENFORCE "STAY PUT"

I. INTRODUCTION

This Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq., action reviews November 18, 2010 Findings of Fact and Conclusions of Law (the "November 2010 Decision") of Administrative Hearings Officer Richard A. Young. The November 2010 Decision addressed two consolidated requests for impartial hearing brought against Plaintiff State of Hawaii, Department of Education (the "State" or "DOE") by Defendant M.F., by and through her parents R.F. and W.F. (the "Student" or "M.F."). The Hearings Officer, incorporating a ruling he made in a prior August 26, 2010 Order, found denials of a right to a Free Appropriate Public Education ("FAPE"). He awarded

(1) reimbursement for tuition and certain related services for private placement at the Loveland Academy ("Loveland") for the Student's School Year ("SY") 2009-2010 and 2010-2011, and for extended school years ("ESY") 2010 and 2011; and

(2) compensatory education at Loveland for SY 2011-2012 to remedy a denial of FAPE from the beginning of the Student's SY 2008-2009 until February 11, 2010. He found, however, that the State's offer of FAPE for SY 2009-2010 was appropriate as to certain related services (occupational and physical therapy, and speech-language services).

Having primarily lost at the administrative level, the State filed this action pursuant to 20 U.S.C. § 1415(i)(2)(A), challenging particular findings of fact and conclusions of law encompassed in the November 2010 Decision. Doc. No. 1-1. The State denies that it failed to offer FAPE for the years in question, and, regardless, contends the Hearings Officer erred in the scope of the remedies awarded. In turn, the Student filed a corresponding Motion in this court seeking

(1) to supplement the record, (2) partial summary judgment "to enforce" the November 2010 Decision, and (3) "to enforce Stay Put." Doc. No. 24.

Based on the following, the court (1) AFFIRMS the November 2010 Decision IN PART, and VACATES and REMANDS the action for further proceedings, and (2) GRANTS in part and DENIES in part the Student's corresponding Motion.

II. BACKGROUND

A. Factual Background

1. M.f. Qualifies for Services under the IDEA

No one disputes that now-fourteen year old M.F. is disabled for purposes of the IDEA. Her parents adopted her from an orphanage in China when she was thirteen months old. AR 338, Nov. 2010 Dec. at 5.*fn1 She has multiple conditions qualifying her as "emotionally disturbed," including reactive attachment disorder, attention deficit hyperactivity disorder, gender identity disorder, and major depressive disorder. AR 337; MF082. Rather, at issue are procedural and substantive challenges to the offers, or lack of offers, of a FAPE by the DOE from 2008 to 2010.

The record indicates M.F. was receiving special education benefits since pre-school and at her DOE home school since at least 2006. AR 6; Pet. 210-37, 253-83. She had a "skills trainer" throughout her time at the home school, Tr. 206-07, and received special education services under an individualized education program ("IEP") for her SY 2007-2008. Pet. 198-209. Thus, near the end of her fourth grade year, the DOE had in place a May 28, 2008 IEP (the "May 2008 IEP"). Pet. 136-46. This offer of FAPE was to expire on August 29, 2008. Pet. 143; AR 336.

M.F.'s IEP team, including M.F.'s parents, met on May 29, 2008 to discuss the May 2008 IEP. M.F.'s parents did not object to that IEP, and they did not challenge it as an inadequate offer of FAPE -- the "written notice of department action" states that "the team proposed that the program and placement remain the same," and "[t]here were no concerns about program." The notice continues:

Parents shared that [M.F.] will be attending Variety

School for the summer. In the beginning of next school year [SY 2008-09], the team will meet to discuss any concerns regarding [M.F.] and her needs. It was suggested that a fade plan*fn2 be developed next school year.

AR 62. And so, after her fourth grade year, M.F. attended the private Variety School for the 2008 summer. AR 62; Pet. 289; Tr. 210.

2. Student Withdraws from Public School in Favor of Variety School for SY 2008-2009 By all accounts, M.F.'s 2008 summer went well. On July 11, 2008,

M.F.'s mother called the DOE home school to notify it that M.F. would be attending Variety School for the upcoming SY 2008-2009. The home school's Student Services Coordinator ("SSC") wrote in an event log of July 11, 2008 that "[M.F.'s] mother called and said that [M.F.] enjoyed attending Variety School without the paraprofessional support and requested a release from [the home school.]" AR 64. The SSC continued:

[I] [t]old mother that I would inform the team and Hawaii Behavioral Health that [M.F.] will no longer need contracted services. Informed mother that if she would like [M.F.] to return to [home school] in the future, to contact the school. Called . . . Hawaii Behavioral Health . . . , submitted Cancellation Orders (for contracted services), and left voice messages for her BISS and Paraprofessional Support Service providers.

Id. Similarly, M.F.'s mother wrote in a July 9, 2008 email to a provider at Hawaii Behavioral Health:

Just wanted to let you know that [M.F.] will be attending Variety School next year [SY 2008-2009]. I know [home school] starts on 7/28 but Variety School will just be starting on their Summer Intersession (sic.). They will start their new school year August 20. . . . I just wanted to let you know in case they do not contact you until school starts. [M.F.] continues to enjoy attending Variety School. . . . . . . .

The school has been quite a learning experience for [M.F.] . . . . She is also happy that she can attend school on her own; without a "helper". It is such a relief that [M.F.] wants to attend Variety School during the regular session. . . .

If we do not get a chance to talk again, I would like to thank you once again for all your help. I will continue to keep all your suggestions in mind.

Pet. 289.

Given M.F.'s move to Variety School, the May 2008 IEP expired on August 29, 2008. Nevertheless, the DOE provided periodic notices to M.F.'s parents indicating that M.F. was entitled to a FAPE and that if they wanted special education services they should contact the DOE to enroll in a public school. The DOE, however, did not prepare another IEP at the start of M.F.'s SY 2008-2009 or SY 2009-2010, and did not review the May 2008 IEP in 2009.

Specifically, on July 31, 2008, the DOE provided by certified mail a notice to M.F.'s parents, stating in part that:

Your child has been identified as a student with a disability under the Individuals with Disabilities Education Act (IDEA) and Chapter 56 of the Hawaii Administrative Rules and is currently not enrolled in a Hawaii public school. As a reminder to you, your child, as a student with a disability enrolled by you in a private school, is eligible for the following:

X Free Appropriate Public Education (FAPE) Your child is eligible to receive a FAPE which includes special education and related services in the public schools. If you wish to have your child receive these services by enrolling in a public school, please contact [the principal at home school] or [a district educational specialist].

AR 66. The letter references a "Procedural Safeguards Notice for Parents and Students" as an attachment. Id. Although M.F.'s parents received the letter on August 4, 2008, they did not respond. AR 68.

A similar letter was mailed to M.F.'s parents on November 3, 2008, stating in part:

. . . . As a parent of a student with a disability, you continue to have protection under the procedural safeguards of Chapter 56 (see attached "Procedural Safeguards Notice for Parents and Students"). Further, your child, as a student with a disability, is eligible for the following:

X Free Appropriate Public Education (FAPE) Your child is eligible to receive a FAPE which includes special education and related services in the public schools. If you wish to have your child receive these services in a public school, please contact the principal at the phone number listed above.

X Private School Participation Project (PSPP) Our records indicate that your child has been identified by the HIDOE as having a disability, but is enrolled in a private school. Your child may be eligible for services under the Private School Participation Project (PSPP); please see the attached description for details. If you wish to pursue this option, please contact the principal at the phone number listed above.

AR 71. The letter also references a "Procedural Safeguards Notice for Parents and Students" and a "Private School Participation Project Information" as attachments. Id. Although M.F.'s parents received the letter on November 8, 2008, no response was received by the DOE. AR 74.

The DOE mailed a similar letter to M.F.'s parents the following summer, by notice dated August 25, 2009. In addition to referencing eligibility for a FAPE as before, this notice also referred to a "reevaluation" as follows:

X Reevaluation

Our records indicate your child's three year re-evaluation is due. The HIDOE proposes to conduct a re-evaluation of your child to determine continued eligibility for special education services because a review of existing evaluation data on your child indicates that the information we have is no longer current. Should your child continue to be eligible for special education, an appropriate program for your child will be developed and placement will be determined. If you wish to have a reevaluation conducted, or if you need assistance in understanding the provisions of Chapter 56, please contact the principal at the phone number listed above.

If we do not hear from you by, September 25, 2009 ;

* a re-evaluation will not be conducted,

* your child will no longer be eligible for special education, and

* you will no longer receive this notice.

Should you wish to request an initial evaluation for special education in the future, please contact your HIDOE home school.

AR 76. Like prior notices, this letter references a "Procedural Safeguards Notice" as an attachment. Id. As before, this letter was sent by certified mail to M.F.'s parents' address of record (the same address that was used the year before). AR 78. The notice, however, was returned as "unclaimed," with delivery apparently attempted on August 28, 2009, September 4, 2009, and September 14, 2009. AR 79.

On November 2, 2009, the DOE mailed another notice. This notice was similar to prior notices, except all three criteria (FAPE, "Private School Participation," and "Reevaluation") were marked. This notice provided that:

If we do not hear from you by, December 2, 2009 ;

* a re-evaluation will not be conducted,

* your child will no longer be eligible for special education, and

* you will no longer receive this notice.

Should you wish to request an initial evaluation for special education in the future, please contact your HIDOE home school.

AR 81. This letter was sent to the same address as before, and was received on November 3, 2009. AR 83. Unlike with prior notices, however, M.F.'s parents responded to this notice. Although their exact response is not in the record (the court infers it was an oral response), M.F.'s parents apparently responded to the DOE's latest notice by requesting services in some form or an updated evaluation. Pet. 125.

On November 26, 2009, the DOE scheduled a conference for December 10, 2009 (subsequently rescheduled to December 17, 2009) to "determine what additional data, if any, is needed to define the needs of [M.F.]" and "determine if a 504 or IDEA initial evaluation or reevaluation is warranted." Pet. 128-29. After that conference, various tests were scheduled and reports were prepared as necessary for a new or revised IEP. E.g., Pet. 71-117; MF 070, 074, 076, 082, 086. The DOE performed several new psychological and educational evaluations in January 2010, and prepared a February 11, 2010 IEP ("the February 2010 IEP") for the remainder of SY 2009-10 and for part of SY 2010-11 (until February 2011). Pet. 33-47. It offered, among other things, to place the Student at an "Intensive Learning Center" ("ILC") with "integrated therapeutic supports" for SY 2010-11. Pet. 45-46. The IEP provided that the Student "will not participate with non-disabled peers," "will receive specialized instruction . . . in the special education setting for the whole school day and will not participate in the general education setting," and "will receive specialized instruction in a public separate facility." Pet. 46. It also offered no speech or language services, and limited occupational/physical therapy (consultation one time per quarter, thirty minutes per semester). Pet. 45.

An IEP meeting was held on February 11, 2010. Pet. 31, 62. M.F.'s parents, however, disagreed with that offer of FAPE. Pet. 285-86. The parents disagreed with the DOE's proposed placement in an ILC at a middle school, and instead sought for M.F. to remain in her private school. (M.F. was now attending Loveland, having enrolled there in December of 2009, as explained below.)

On February 26, 2010, the DOE scheduled another IEP meeting for March 25, 2010. Pet. 284. That meeting apparently focused on ESY services for 2010. Pet. 13. The team considered additional reports from M.F.'s providers regarding the need for ESY in 2010. See Pet. 244, 245, 246. After the March 25, 2010 meeting, the DOE proposed that M.F. receive ESY services for the upcoming summer (the end of SY 2009-2010), but retained the proposed placement at the ILC. Pet. 13. M.F.'s parents again disagreed and, on April 6, 2010 filed their first Request for Impartial Due Process Hearing against the DOE. Pet. 8.

3. Private Placements at Variety School and Loveland Academy

In rejecting the February 2010 IEP's offer of placement at an ILC, M.F.'s parents wanted M.F. to remain at her then-current private placement at Loveland, which she had begun attending in December 2009. M.F. had moved to Loveland during her sixth grade year (SY 2009-2010), after spending her prior year (SY ...


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