The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
This is an appeal from a decision by an Administrative Hearings Officer ("AHO"). The AHO determined that Defendant C.B., a minor, had been denied a Free Appropriate Public Education ("FAPE"), as required by the Individuals with Disabilities Education Act ("IDEA"). The AHO ordered Plaintiff Department of Education ("DOE") of the State of Hawaii to reimburse the child and his parents, Donna and Scott B. ("Parents"), for services at Autism Management Services ("AMS"), the private facility that the child now attends. The DOE seeks a preliminary injunction barring enforcement of the AHO's decision, which included findings of fact and conclusions of law ("Decision"). Only one element of the four-factor preliminary injunction test, the "likelihood of success on the merits" factor, weighs in favor of granting the injunction. The other factors do not. The court therefore denies the DOE's motion.
"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 Individualized Education Program ("IEP"), and determine an appropriate educational placement for the student.
The student's FAPE must be "tailored to the unique needs of the handicapped child" through an IEP. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982) (citing 20 U.S.C. § 1401(18)). The IEP is prepared at a meeting among 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). A parent may also enroll the child in a private program, and, upon establishing that the public 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, a parent must establish that placement at a private school was appropriate. Id.
III. FACTUAL AND PROCEDURAL BACKGROUND.
C.B. is a five-year-old boy with autism. Decision ¶ 1.
He has received special education since 2009. Id. ¶ 4. C.B. is now enrolled at AMS, a private program for children with autism, where he has been since May 2011. Id. ¶ 45. C.B. previously attended Horizons Academy, a private school. Id. ¶ 18. Unhappy with C.B.'s progress at his home public school, Kamali'i Elementary School on the island of Maui, Parents had unilaterally placed C.B. at Horizons in September 2010. Id. ¶ 16.
Disputes about the one-to-one paraprofessional services provided by the DOE are prominent in the present case. An IEP dated June 18, 2009, required the DOE to provide twenty-nine hours per week of daily one-to-one paraprofessional services by a DOE-contracted provider. Id. ¶ 5. Another IEP was prepared for C.B. on May 28, 2010. Id. ¶ 6. The May 2010 IEP replaced the contracted provider with a DOE employee and required that the paraprofessional have certain credentials. Id. ¶ 6-7. Not satisfied with the new DOE paraprofessional and allegedly seeing C.B.'s behavior regress, Parents moved C.B. to Horizons. Id. ¶¶ 8-15.
On October 28, 2010, the DOE held an IEP meeting that resulted in the IEP in issue before this court. Id. ¶ 22.
C.B.'s father wanted the IEP to include services designed to ease C.B.'s transition back to Kamali`i. Id. ¶ 24. Parents also requested that the IEP require the one-to-one paraprofessional to have certain credentials required by the IEP of May 24, 2010.
Id. ¶ 28. The DOE refused on the ground that doing so would limit which individuals could work with C.B. Id. ¶ 28. The October 2010 IEP ultimately stated only that C.B. would receive daily one-to-one paraprofessional support. Id. ¶ 30.
Parents requested a due process hearing on April 26, 2011. The AHO convened a hearing on July 18, 2011, and issued her decision on August 30, 2011. The AHO made numerous factual findings and concluded that the DOE had violated the IDEA (1) by not discussing or developing a transition plan, and (2) by failing to provide Parents with information they requested about the paraprofessional services. Decision at 17-18. She concluded that C.B. had been denied a FAPE.
The AHO then concluded that, under Burlington, 471 U.S. 359, Defendants were entitled to reimbursement because C.B.'s placement at AMS had been appropriate. Id. at 21. She ordered the DOE to reimburse Defendants for the cost of C.B.'s tuition at AMS until the DOE had developed an appropriate IEP for C.B. Id. The DOE contends that an appropriate IEP was developed on May 20, 2011. In the present appeal, the DOE challenges the AHO's Decision on various grounds and seeks a preliminary injunction to prevent its enforcement.
IV. PRELIMINARY INJUNCTION STANDARD.
The purpose of a preliminary injunction is to preserve the status quo if the balance of equities so heavily favors the moving party that justice requires the court to intervene to secure the positions until the merits of the action are ultimately determined. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). "A plaintiff seeking a preliminary injunction must establish  that he is likely to succeed on the merits,  that he is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in his favor, and  that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Winter makes it clear that a preliminary injunction may not issue when a plaintiff who demonstrates a strong likelihood of prevailing on the merits shows only a possibility of irreparable harm. Small v. Avanti Health Systems, LLC, 661 F.3d 1180, 1187 (9th Cir. 2011) (citing Winter, 555 U.S. at 22).
The Supreme Court has cautioned that a "preliminary injunction is an extraordinary remedy never awarded as of right." Winter, 555 U.S. at 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). Courts balance the competing claims of injury and consider the effect on each party of granting or denying the injunction. A court is not to grant a preliminary injunction "unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotations and citations omitted) (emphasis in original).
The DOE does not establish two of the four preliminary injunction factors. It does not show that it will suffer irreparable harm, or that the balance of equities tips in its favor. The DOE does show that it is likely to succeed on the merits. The public interest factor is neutral. Balancing the four factors, ...