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Scot S., Individually and On Behalf of His Minor Child, Scot S. Jr v. Department of Education


February 27, 2012


The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge



Scot S., individually and on behalf of his minor child, S. ("Student") (collectively, "Plaintiffs"), have sued the State of Hawaii, Department of Education, and Kathryn Matayoshi, in her official capacity as Acting Superintendent of the Hawaii Public Schools (collectively, the "DOE" or "Defendant"), for allegedly denying Student a free appropriate public education ("FAPE") to which he is entitled under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400-1487 (2005).

On February 3, 2010, Plaintiffs commenced the complaint process by requesting a due process administrative hearing. After several continuances and an attempt by the parties to resolve the matter, a hearing was held March 8-9, 2011. Subsequent to the hearing, the parties submitted written closing briefs. The administrative proceedings resulted in the Hearings Officer's issuance of Findings of Fact, Conclusions of Law and Decision on April 28, 2011 ("Admin. Decision"). The Hearings Officer concluded that the DOE had offered Student a FAPE, and Plaintiffs were therefore not entitled to reimbursement for Student's private tuition at the Pacific Autism Center ("PAC"). On May 27, 2011, Plaintiffs filed suit in this Court pursuant to 20 U.S.C. § 1415(i)(2)(A), which gives parties who are "aggrieved by the findings and decision" in a due process hearing the right to file a civil action challenging the findings and decision. See Doc. No. 1. On August 3, 2011, the Court received the Administrative Record on Appeal. Doc. Nos. 22 & 23. The complete record is comprised of the following four components:

(1) Administrative Record on Appeal ("A.R."); (2) Petitioners' Exhibits 1-6 ("Pls.' Exs.")*fn1 ; (3) Respondent's Exhibits 1-18 ("Def.'s Exs."); and (4) Transcript of Administrative Hearing (two volumes, "Tr. I" and "Tr. II").

On February 27, 2012, the Court held a hearing on Plaintiffs' administrative appeal.


The factual background is set forth in greater detail in the Hearings Officer's decision. See Admin. Decision 3-9. The parties have not challenged the Hearings Officer's factual findings, and the Court adopts them to the extent that they are relevant to this case. Neither party has requested to submit additional evidence and the Court will highlight the relevant facts set forth in the record.

Student is eligible for special education under the IDEA, and has been receiving services under that Act for several years. Plaintiffs filed a Request for Impartial Due Process Hearing challenging the appropriateness of an individualized education plan ("IEP") developed in March 2009 (the "March 2009 IEP"). Compl. ¶¶ 6, 11. At the time the March 2009 IEP was developed, Student was home schooled under a Center for Autism and Related Disorders ("CARD") program requested by his parents ("Parents") and paid for by the DOE. Admin. Decision 5. Student was also provided speech and occupational therapy ("OT") services at Keolu Elementary School ("KES"), Student's home school under the IDEA. Id.

On November 13, 2008, February 13, 2009, and March 5, 2009, IEP team meetings were held and the March 2009 IEP was developed. See Def.'s Ex. 5, at SS 058.*fn3 This IEP provided that Student would be placed at KES and a plan was developed to transition Student to school for longer increments of time until he was in school for the whole school day.*fn4 Id. at SS 074. The services grid on the IEP stated that the projected dates of services were between March 6, 2009, and March 5, 2010. Id. at SS 073.

On March 10, 2009, the parties entered into a settlement agreement (the "settlement agreement"), which provided that the DOE would pay for Student's tuition at PAC, a private clinic, through December 31, 2009. Admin. Decision 4; see Def.'s Ex. 17, at SS 168. The agreement further provided, inter alia, that (1) "[p]lacement as of January 5, 2010 will be at a DOE school"; (2) the "IEP team will meet in November, 2009 to develop a transition plan from PAC to DOE school"; (3) "Parent agrees to provide DOE with the following PAC documents[:] all data sets, progress reports, evaluations, assessment and attendance records"; and (4) "Parents agree to allow DOE to observe student at PAC." Def.'s Ex. 17, at SS 168.

On May 6, 2009, Alma Souki, the principal of KES, requested that PAC provide her with Student's records, including "progress reports and data records . . . including attendance records, IEP goals and objectives either working on or mastered." Id. at SS 175. The letter further provided that Souki would continue to request the reports on a monthly basis until November 2009. Id. On November 9, 2009, Souki wrote to Parents, requesting "all data sheets, progress reports, evaluations, assessments and attendance records from the Pacific Autism Center." Id. at SS 176. Souki also offered two dates in November when the IEP team could meet to develop a transition plan. Id.

In a letter dated November 15, 2009, Parents responded that they were unavailable on the dates offered, would like to reschedule so they can attend the meeting, and that they would "contact PAC for documents will provide them as soon as we get copies." Id. at SS 177. Souki replied in a letter dated November 19, 2009, offering two more dates for the transition meeting, December 7 and 8, 2009. Id. at SS 178. Parents responded in a letter dated December 1, 2009, that they were not available these two dates, but could meet December 15 or 18. Id. at SS 180. In a letter dated December 8, 2009, Souki informed Parents that the IEP team was not available on December 15 or 18 and offered December 17 as an alternative date. Id. at SS 181. Souki further stated that as provided for in the settlement agreement, "we are still requesting all data sheets, progress reports, evaluation, assessments and attendance records from Pacific Autism Center (PAC) at least by December 14, 2009." Id.

A meeting was held on December 17, 2009, and Parents participated by telephone conference call. Admin. Decision 7. At this meeting, a new IEP was not developed. On December 21, 2009, the DOE made a settlement offer (the "settlement offer") that provided that the DOE would continue to pay Student's tuition at PAC "from January 1, 2009 through the date of [Student's] Annual [IEP] of March 5, 2010 or five calendar days after the DOE's offer of FAPE, whichever date occurs first." Id. at SS 185-86. The offer further provided: (1) that placement as of March 5, 2010 or five calendar days after the DOE's offer of FAPE will be determined by the IEP team and in Student's least restrictive environment; (2) that Parents agree to provide the DOE with Student's documents and records from PAC no later than January 29, 2010, or tuition payments to PAC will cease on January 30, 2010; (3) that Parents agree to notify the DOE which of four dates are convenient for them to attend and participate in Student's Annual IEP; and (4) that the signed settlement offer must be received no later than December 31, 2009, or "tuition payment to PAC will be discontinued as specified in the Compromise Settlement Agreement of March 16, 2009." Id. at SS 186-88.

Parents declined to accept the settlement offer and on February 3, 2010, submitted a request for a due process hearing challenging the appropriateness of the March 2009 IEP. Admin. Decision 9. Plaintiffs request, inter alia, reimbursement for the costs of Student's privately obtained educational and related services. Compl. Prayer for Relief ¶ 5.


In evaluating an appeal of an administrative decision under the IDEA, the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C).*fn5

The statutory requirement "that a reviewing court base its decision on 'the preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982). Rather, "due weight" must be given to the findings in the administrative proceedings. Id.

The amount of deference given to an administrative hearings officer's findings is a matter of discretion for the court. See Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). The court must "consider the findings 'carefully and endeavor to respond to the hearing officer's resolution of each material issue,' but the court 'is free to accept or reject the findings in part or in whole.'" Id. (quoting Gregory K., 811 F.2d at 1311). "When exercising its discretion to determine what weight to give the hearing officer's findings," the court may "examine the thoroughness of those findings" and accord greater deference when they are "'thorough and careful.'" Id. (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)).

A court's inquiry in reviewing administrative decisions under the IDEA is twofold: "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." Rowley, 458 U.S. at 206-07 (footnotes omitted); see also Smith, 15 F.3d at 1524.


The issue in this case is whether the March 2009 IEP offered Student a FAPE. If a public school fails to offer a FAPE to a student, and a parent places that student in an appropriate private school, a court may require the DOE to reimburse the parents for the private school tuition. See 20 U.S.C. § 1412(a)(10)(C)(ii); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S. Ct. 2484, 2488 (2009).

Plaintiffs do not assert that the March 2009 IEP was inappropriate at the time it was developed. Instead, Plaintiffs assert the following four defects, each of which the Hearings Officer also considered: (1) "[t]he IEP was not updated and there was no process or services that addressed Student's needs if he were to transition between [PAC] and a less restrictive placement"; (2) "Student's Present Levels of Educational Performance was not updated as needed"; (3) the DOE would only allow Student to continue at PAC if Plaintiffs waived important rights; and (4) "Student's Behavioral Support Plan had not been updated, as needed." Pls.' Br. 3-4. Plaintiffs assert that because of these defects, the DOE failed to provide an offer of a FAPE to Student and that they are thus entitled to reimbursement for Student's private tuition. Id. at 11.

Some of Plaintiffs' arguments are repeated throughout the briefs. The discussion below consolidates Plaintiffs' repeated or related arguments, and therefore is organized somewhat differently than the briefs. The Court will first discuss the DOE's failure to update the IEP, present levels of educational performance ("PLEPs"), Behavioral Support Plan ("BSP"), and transition plan. The Court will then discuss whether the DOE offered Student a FAPE, followed by a discussion of Plaintiffs' arguments regarding the DOE's proposed settlement agreement offered to Parents in December 2009.

The Court finds that the Hearings Officer's findings of fact and conclusions of law are "thorough and careful," and therefore accords them significant deference. See Capistrano, 59 F.3d at 891. The Court concludes that the DOE complied with the procedural requirements of the IDEA and the March 2009 IEP was reasonably calculated to enable Student to receive educational benefits. The Court therefore affirms.

A. The DOE's Failure to Update the IEP, PLEP, BSP, and Transition Plan

Plaintiffs are challenging the appropriateness of the March 2009 IEP, the PLEP, the BSP, and the transition plan at the end of December 2009, the time the DOE's obligation to pay for PAC pursuant to the settlement agreement expired. See Pls.' Br. 4-6. Plaintiffs assert that the DOE denied Student a FAPE because the DOE did not update these plans based on Student's attendance at PAC. Id. at 3.

Defendant responds that at the time it developed the March 2009 IEP, Student was in home bound services and had not yet entered PAC. Def.'s Opp'n 10. Defendant explains that pursuant to the settlement agreement, the parties contemplated that updated records would be provided to the DOE, and that Parents could not expect an updated IEP without providing such records. Id. at 11. Defendant states that the record amply supports the Hearings Officer's findings, including that Parents failed to cooperate with the DOE in producing Student's records from PAC, and the Hearings Officer's conclusion that "parents can not expect to have an updated IEP or complain about the transition offered if they do not provide the DOE the needed information that parents had agreed to provide." Id.

Plaintiffs contend that Parents failure to provide the DOE with the requested progress reports and other data "would have affected the quality of the IEP the Department of Education developed for the student," but did not excuse DOE from developing a new IEP. Id. at 6-7. Plaintiffs further assert that the DOE's unaccepted settlement offer is not a substitute for an IEP offer. Id.

The Court agrees with Defendant; the failure to update the March 2009 IEP and other plans in December 2009 did not violate the IDEA. As the Hearings Officer explained, "it is clear that throughout 2009 [Parents] failed to provide the DOE with any information from the current private placement, even though Student had been there since April 13, 2009," and that "[w]ithout this information the DOE could not update the IEP." Admin. Decision 14. The Hearings Officer explained that "over a long period of time, the DOE attempted to get information about Student so that it could develop an appropriate IEP and transition plan." Id. at 13. Specifically: "Both the principal and the district education specialist confirmed that despite numerous requests, the DOE did not receive documents from the current private placement regarding Student. The district education specialist testified that this information was critical to developing Student's IEP and transition plan. Id.

"[W]here parents have information relevant to the development of an IEP in their possession, and fail to share it with the IEP team, they cannot later complain that the IEP is deficient for not addressing the withheld information." D.R. v. Dep't of Educ., Hawaii, Civ. No. 11-00116 ACK-KSC, 2011 WL 5025496, at *6 (D. Haw. Oct. 21, 2011). In K.D. v. Department of Education, Hawaii, --- F.3d ----, 2011 WL 6760338 (9th Cir. 2011), the Ninth Circuit concluded that a 2008 IEP that was based on many of the same tests considered in the 2007 IEP was a FAPE. Id. at *13. The Ninth Circuit explained that "[n]ot having received written consent or any records from [a private placement] due to [the mother's] lack of cooperation, the DOE could only prepare a 2008 IEP that was substantially similar to the 2007 IEP." Id.

Similarly, Parents did not provide records and documents pertaining to Student's program and progress at PAC, important information that the DOE would need to update Student's IEP. See Admin. Decision 13. Plaintiffs assert that nonetheless the DOE did not attempt to observe Student at PAC. Pls.' Br. 7. It is unclear from the record, however, whether the DOE attempted to conduct an observation, see Tr. II, at 183-85, and nonetheless the Court agrees with Defendant that observations are not a substitute for the records and progress reports specifically requested and not produced. See Def.'s Opp'n 14.

The Court concludes that through the failure to provide the DOE requested documents and records, Parents hindered, and ultimately prevented, the DOE from effectively updating the March 2009 IEP, the PLEP, BSP, and transition plan to reflect Student's development at PAC.*fn6 Thus, the Court concludes that in the circumstances of this case, the failure to revise the March 2009 IEP, PLEP, BSP, and transition plan did not result in the DOE's failure to offer Student a FAPE or a procedural violation of the IDEA.

B. Whether the DOE Offered Student a FAPE

Despite Parents' failure to provide the DOE with requested documents and records, the Court must address whether, under the circumstances, Student received an offer of a FAPE.

See Anchorage Sch. Dist. v. M.P., No. 10-36065, 2011 WL 5149140, at *1 (9th Cir. Nov. 1, 2011) ("Neither the IDEA nor its implementing regulations qualifies any duty imposed on a state or local educational agency as contingent upon parental cooperation.

Further, the [Anchorage School District] does not cite any binding case law, and we are not aware of any, that supports such a proposition."); but cf. Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1318-19 & n. 10 (11th Cir. 2003) ("If [Student's] parents significantly hindered or frustrated the development of an IEP, the district court may be justified in denying equitable relief on that ground alone."); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 411 (S.D.N.Y. 2005) ("[N]umerous courts, including the United States Court of Appeals for the Second Circuit, have held that parents who fail or refuse to cooperate with the [Committee on Special Education] in their school district - as, for example, by refusing to give the district a reasonable opportunity to evaluate their disabled child - forfeit their claim for tuition reimbursement.").

Plaintiffs assert that the March 2009 IEP was not an offer of the least restrictive placement as of December 2010 because the IEP would place Student back in home bound services after spending approximately six months at a private facility where other disabled students were also receiving services.

Pls.' Br. 5-6. Plaintiffs contend that Parents were "left with the choice between an IEP that placed student in a Home-Bound program or accept a settlement offer that pre determined the date (within 5-days) of his return to his 'least restrictive placement,' after the IEP meeting." Id. at 8.

The Court first notes that Plaintiffs' assertion that the March 2009 IEP placed student into home bound services is false. See id. at 5. The March 2009 IEP provided for placement at KES. Second, the Court notes that this is not a typical situation where an IEP is drafted and implemented shortly thereafter. Due to the settlement agreement after the development of the March 2009 IEP, it was not to be implemented until ten months later -- in January 2010.

In a twenty page decision, the Hearings Officer thoroughly analyzed the appropriateness of the March 2009 IEP and supported his conclusion that the DOE offered Student an appropriate placement at KES with specific facts contained in the record. Admin. Decision 14-19. As the Hearings Officer explained, under the IDEA, the DOE is obligated to place student in the least restrictive environment ("LRE"), which requires placing Student, to the maximum extent appropriate, with students who are non disabled. Admin. Decision 18-19; see 34 C.F.R. §§ 300.114-300.118; Hawaii Administrative Rules § 8-60-15(1) ("To the maximum extent appropriate, students with disabilities . . . are educated with students who are nondisabled."). The Hearings Officer concluded that the March 2009 IEP complied with the LRE requirement. Admin. Decision 18-19.

The Court agrees with the Hearings Officer.

Considering the March 2009 IEP both at the time it was designed and as of January 2010, when it was to be implemented, the Court concludes that it was "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07; see Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (instructing that a district court should consider whether an IEP "was appropriately designed and implemented so as to convey [Student] with a meaningful benefit").*fn7

Specifically, the March 2009 IEP offered Student 2400 minutes of special education services per week; 1170 minutes of OT services per quarter; 1620 minutes of speech/language therapy per quarter; and parent education of 600 minutes per quarter. Def.'s Ex. 5, at SS 073. The IEP additionally offered supplementary aids and services, including ABA training/consultation and methodologies, a positive BSP, and 1:1 instructional support for 2400 minutes per week. Id. The March 2009 contained a PLEP that was based on formal assessments conducted in February 2008. Id. at SS 059-61. A March 9, 2009, prior written notice stated: "A graduated return to school is proposed as noted on the IEP. [Student] will receive all special education services in a self contained special education classroom with the exception of lunch and recess. An extended school day program delivered in the home and community is proposed to assist [Student] with transfer and maintenance of skills learned in school." Id. at SS 080. The March 2009 IEP thus provided for individual instruction with opportunities for generalization with general education peers at lunch, recess, and special assemblies. Additionally, Souki, who was been a member of Student's IEP team since 2005, testified that Student needs to be in the school setting with other children. Tr. I, at 119-20.

The Hearings Officer further concluded that considering the placement provision of the March 2009 IEP both at the times Student was home schooled and when he attended PAC, "it is apparent that the transition offered by the DOE is appropriate." Admin. Decision 12. The Court agrees; the transition plan provided for a transition to KES over a period of three weeks, gradually increasing the amount of time Student spent at KES and the time Student spent with other students.*fn8

Although updated records would have been preferable and likely enhanced Student's educational benefit, an appropriate education "does not mean the absolutely best or 'potential-maximizing' education for the individual child." Gregory K., 811 F.2d at 1314. Rather, the IDEA requires only that states provide "a basic floor of opportunity through a program individually designed to provide educational benefit" to the student. Id. (internal quotations omitted). Based on the foregoing and the Court's review of the record, the Court agrees with the Hearings Officer that the March 2009 IEP was appropriate and meets the LRE provision.

C. The DOE's December 2009 Settlement Offer

Plaintiffs assert that the DOE would only allow Student to continue at PAC if Parents waived important rights. Plaintiffs assert that the DOE "threat[ened] to cut off funding for the private clinic unless [Parents] accepted the settlement offer," and that "offering a settlement without an alternative offer of a [FAPE], did not meet the DOE's legal responsibilities, under the circumstances." Pls.' Br. 4-5. Plaintiffs further contend that accepting the settlement offer "meant that Student would not have had a transition period between his present program at PAC and the DOE program that lasted no more than 5 calendar days." Id. at 9. Plaintiffs argue that therefore Parents were denied the right to participate in Student's IEP on this issue. Id. Defendant responds that the Hearings Officer correctly "found that the proposed settlement agreement merely proposed an extension of the prior settlement agreement to allow the DOE to obtain the records which were never provided by Plaintiffs pursuant to the settlement agreement." Def.'s Opp'n 13.

Plaintiffs' argument is based on the assumption that the DOE had an obligation to pay for PAC after December 31, 2009. Under the settlement agreement, the DOE was only obligated to pay for PAC through December 31, 2009. As discussed supra, Student had a present program to access -- the March 2009 IEP provided for placement at KES -- and that program was calculated to offer Student some educational benefit. Consequently, the DOE had no continuing obligation to pay Student's PAC tuition from January 2010 forward. Thus Parents were not put in a position where they had to agree to the settlement offer and waive important rights or refuse the settlement offer at the expense of a FAPE for Student.

In reality, the DOE was put in the position of implementing an IEP and transition plan that had not been updated with the appropriate records and documents or delay updating the IEP and transition plan until such documents were received. The Hearings Officer explained, and the Court agrees, that "the DOE's action in proposing the December 21, 2009 Compromise Settlement Agreement to extend the period of time the DOE would pay for Student's current private placement from January 1, 2010 to March 5, 2010, shows that the DOE was making an extra effort to obtain observations, assessments, and reevaluations that should have already been done according to the terms of the March 10, 2009 settlement agreement." Admin. Decision 16.

Consequently, Plaintiffs' arguments with respect to the December 2009 settlement offer are without merit. The DOE did not violate any legal obligation in gratuitously offering to extend payment for Student's PAC tuition to allow the DOE to update the IEP with Student's most recent records and documents. The Court is sympathetic to Parents' view that Student has been able to make significant gains at PAC and desire to have his education continue there. The IDEA, however, does not require States to provide the potential maximizing education for each child, rather it requires States only to "enable the child to receive educational benefits." Rowley, 458 U.S. at 207. The DOE's March 2009 IEP, both at the time drafted and at the time it was to be implemented in January 2010, was calculated to provide Student with educational benefits. Consequently, the DOE offered Student a FAPE and Plaintiffs are not entitled to reimbursement for Student's PAC tuition.*fn9


For the foregoing reasons, the Court AFFIRMS the Findings of Fact, Conclusions of Law, and Decision of the Office of Administrative Hearings.


Scot v. Department of Education, State of Hawaii, et al., Civ. No. 11-00347 ACK-RLP: Order Affirming the Findings of Fact, Conclusions of Law, and Decision of the Office of Administrative Hearings.

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