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

February 27, 2012

SCOT S., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, SCOT S. JR.,
PLAINTIFFS,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAI'I, KATHRYN MATAYOSHI, IN HER OFFICIAL CAPACITY AS ) ACTING SUPERINTENDED OF THE HAWAII PUBLIC SCHOOLS, DEFENDANTS.



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

ORDER AFFIRMING THE FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION OF THE OFFICE OF ADMINISTRATIVE HEARINGS

I. PROCEDURAL BACKGROUND

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.

II. FACTUAL BACKGROUND*fn2

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 ...


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