The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER (1) DENYING IN PART
PLAINTIFF'S MOTION TO DISMISS
AND (2) REMANDING STAY PUT
ISSUES TO HEARINGS OFFICER
IN CONNECTION WITH DEFENDANT'S COUNTER-MOTION FOR STAY-PUTRECOGNITION; EXHIBIT A
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 appeals that decision.
Defendant, C.B., by and through and his parents, has brought five counterclaims against the DOE. The DOE now seeks to dismiss those counterclaims on various grounds. The court denies the DOE's motion as moot with respect to Counterclaims 2, 3, 4, and 5, as those claims have been voluntarily dismissed by C.B. With respect to Counterclaim 1, which asserts that the DOE is violating the stay put provision of the IDEA, 20 U.S.C. § 1415(j), the court stays the motion pending the remand set forth in this order. The court similarly stays C.B.'s motion, which asks this court to order the DOE to fund C.B.'s placement at AMS during the pendency of appellate proceedings ("stay put motion").
Because the court is unable to determine whether the AHO intended to change C.B.'s "current educational placement" when she referred to AMS as an "appropriate program" for C.B. and ordered reimbursement, the court remands this case to the AHO for clarification on that limited issue.
"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 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. 20 U.S.C. § 1414.
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). To be awarded reimbursement, a parent must establish that placement at a private school was proper under the IDEA. C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 653 F.3d 1155, 1159 (9th Cir. 2011) (quoting Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996)).
The IDEA also includes a "stay put" provision, which permits a child to stay in the child's current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint notice.
See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d).
III. FACTUAL AND PROCEDURAL BACKGROUND.
C.B. is a five-year-old boy with autism. See Administrative Record on Appeal, Petitioners' Exhibits, at 1. He has received special education since 2009. Decision ¶ 4. C.B. is now enrolled at AMS, a private program for children with autism, where he has been since May 2011. Id. ¶ 45.
On October 28, 2010, the DOE held an IEP meeting that resulted in the IEP in issue before this court. Id. ¶ 22. Parents disagreed with the content of that IEP and 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 had requested about certain services that the DOE was to provide to C.B. Decision at 17-18. She concluded that C.B. had been denied a FAPE.
The AHO then concluded that, under School Committee of Burlington v.
Department of Education of Massachusetts, 471 U.S. 359, 370 (1985)
("Burlington"), and Seattle School District., No. 1 v. B.S., 82 F.3d
1493 (9th Cir. 1996), C.B.'s parents were entitled to reimbursement
because C.B.'s placement at AMS had been appropriate. Id. at 21. She
ordered the DOE to reimburse Parents for the cost of C.B.'s tuition at
AMS until the DOE developed an appropriate IEP for C.B.*fn1
Id. The DOE contends that an appropriate IEP was developed on
May 20, 2011. Parents, however, dispute whether that IEP is
appropriate and have requested a due process hearing. See Reply Memo.
in Supp. of Pl. Dept. of Educ.'s Mot. to Dismiss Defs.'s Counterclaims
Ex. C., ECF No. 42-3.
On November 6, 2011, C.B. filed an answer to the DOE's Complaint and asserted five counterclaims: Count 1: "Violation Stay Put Injunction"; Count 2: "Violation of the Supremacy Clause"; Count 3: "Violation of the Supremacy Clause"; Count 4: "Preemption Under Federal Law"; Count 5: "IDEA and Section 504." Answer and Counterclaim, Nov. 06, 2011, ECF No. 10. The DOE now seeks to dismiss the Counterclaims. On December 22, 2011, C.B. filed a stay put motion, seeking recognition that AMS is his "current educational placement" under the stay put provision.*fn2
A. Counterclaims 2, 3, 4, and 5.
On February 14, 2012, C.B. filed a "Notice of Partial Dismissal" of Counterclaims 2 through 5. The DOE argues that C.B.'s "Notice of Partial Dismissal" does not comply with Rule 41(a)(1)(A) of the Federal Rules of Civil Procedure, and Local Rule 41.1, as the DOE did not stipulate to dismiss those counts.
Rule 41(a)(1)(A) permits a plaintiff to dismiss an action without a court order by filing "(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." The DOE argues that, because it filed a motion to dismiss the counterclaims before C.B. filed ...