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M.D., Individually and On Behalf of Her Minor Child, J.D v. State of Hawaii

March 29, 2012

M.D., INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, J.D., PLAINTIFFS,
v.
STATE OF HAWAII, DEPARTMENT OF EDUCATION AND KATHRYN MATAYOSHI, IN HER OFFICIAL CAPACITY AS ACTING SUPERINTENDENT 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 STATE OF HAWAII'S OFFICE OF ADMINISTRATIVE HEARINGS

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

I. PROCEDURAL BACKGROUND

This case comes before the Court on review of a decision of the State of Hawaii's Office of Administrative Hearings concerning the due process hearing brought by J.D. ("Student"), through his mother, against the State of Hawaii's Department of Education. The hearing concerned an IEP that had been developed in June 2009 for Student, who is currently 12 years old and is eligible for special education and related services under the IDEA pursuant to the category of Autism. (See Admin. R. Resp't's Exs. 1, 2.) The court has jurisdiction pursuant to 20 U.S.C. § 1415(i).

On April 29, 2011, in Civil No. 11-00289 ACK-RLP, Plaintiffs filed a complaint against Defendants the State of Hawaii, Department of Education ("State DOE"), and Kathryn Matayoshi, in her official capacity as Acting Superintendent of the Hawaii Public Schools (collectively, "State Defendants" or "State").*fn1 Plaintiffs' principal allegation is that the State Defendants have violated certain provisions of the Individuals With Disabilities Act (hereinafter, "IDEA"), 20 U.S.C. § 1415(e)(2). Specifically, Plaintiffs contend that the State Defendants denied Student a free appropriate public education ("FAPE"), in violation of the IDEA.

II. FACTUAL BACKGROUND*fn2

The factual background is set forth in detail in the administrative hearings officer's decision. (See Admin. R. Ex. 12 ("Admin. Decision")at 3-16.) The parties have not challenged the officer's factual findings. The Court will highlight some of the relevant facts in this section, but does not intend to reject any of the factual findings that the administrative hearings officer made. Neither party has requested to submit any additional evidence.

Student attended Kaimuki Christian School ("Private School") from pre-school until the second grade. In July 2008, Student began attending Kaahumanu Elementary School ("Home School") as a third grader. He remained at the Home School until February 2010, when Mother removed Student from the Home School. In June 2010, Mother re-enrolled student at the Private School, where he remained a student at the time of the filing of the Complaint.

At the beginning of the 2008-2009 school year, the Home School agreed to retain providers for Student who were originally hired by Mother, in order to facilitate Student's transition to the Home School. Id. Within a few months, several of these providers decided to leave for various reasons. One paraprofessional stated that she was declining the assignment after she was asked to be videotaped while working with Student in Mother's home. Id. Another paraprofessional was replaced at Mother's request, and others left for personal reasons. Id. Rather than accepting Mother's request that the Home School maintain multiple paraprofessionals for Student, the Home School decided to assign one behavior instructional support services provider ("BISS") and one skills trainer ("ST") for Student in order to provide a degree of consistency in the strategies used on Student; Student's former BISS and ST were retained and assigned to work with Student at the Home School. Id.

Starting in 2008, the Home School held monthly educational team meetings to discuss Student's progress and share data, among other things. Id. at 6. Although Mother was invited, she only attended one meeting. Id. Student's former BISS eventually decided to leave Student's case voluntarily after Mother requested that Home School replace both the former BISS and the ST in or about December 2008. Id.

Mother retained a psychologist to observe Student in the classroom during the 2008-2009 school year, whose report concluded, among other things, that she had "never seen a more proficient teacher" than the one in Student's classroom. Id. at 4. The psychologist also noted to Student's teacher that there was a conflict between Mother and Student's former BISS (who worked with Student from 2008 until approximately June 2009). Id. at 4-5. When Student's former BISS contacted Mother to arrange parent counseling sessions, Mother did not respond or schedule any sessions. Id. at 5. In addition, in or about October 2008, the ST and former BISS reported observing Mother using techniques with Student including straddling him and pushing his head into a book. Id. Mother denied this allegation. Id.

On June 8, 2009, Mother met with the Individualized Education Program team (the "IEP Team") to develop Student's IEP. Id. at 7. The team developed an IEP that included many detailed goals across various areas in which Student exhibited difficulty, including Language Arts, Math, Health, and World Languages. Id.

One of the goals that ST focused on was developing Student's independence from ST and fostering Student's dependence on his teacher and classmates. Id. at 8-9. This goal of independence was discussed between Student's BISS and fourth grade teacher, and as a result the ST started to gradually move away from Student to the back of the classroom rather than sit next to him. Id. at 9. As a result, Student's fourth grade teacher observed, "[Student] would have a partner, a buddy every week, and so he learned to not depend so much on [the ST] but learned more to depend on, you now, the peer." Id. Mother disagreed with this approach and wanted the SST to remain continuously with Student. Id.

The Home School agreed to Mother's request to replace Student's BISS in July 2009. However, only a few months after the new BISS started her assignment, Mother stopped responding to the new BISS's attempts at contact. Id. at 8. The Home School did not agree to Mother's request to replace the ST, however, because Student's new BISS felt that the current ST was a "good fit" for Student and because "IEP goals were being met or he was progressing in his IEP goals, essentially meeting them later on, meeting goals." Id.

Mother also complained that ST spent her time with a sick child rather than with Student while on a class field trip to the Polynesian Cultural Center during the fourth grade. Id. at 9. Mother was a volunteer chaperone on the school trip, and was assigned by Student's fourth grade teacher to keep an eye on a student who was on the "energetic side." Id. Mother, however, focused her attention on Student. Id. Student's fourth grade teacher, after reminding Mother to help with the "energetic" student, told Mother that if she wanted to remain with Student, the fourth grade teacher would need to have ST help with the rest of the students. Id. Later, during the trip, another student became ill and was vomiting, and the fourth grade teacher asked ST to stay with the sick student. Id. ST added that it had been difficult for her to work with Student because Mother was giving ST orders and the Student "would act up even more" in Mother's presence. Id. This was the reason, the ST explained, that the fourth grade teacher switched roles. Id.

Eventually, Mother asked Student's BISS to leave Student's case. However, Student's BISS declined this request. Id. at 10.

During both his third grade year and fourth grade years at the Home School, Student exhibited progress across various areas, including socialization. Id. at 11, 12, 15. ST and substitute skills trainers regularly documented Student's progress in data sheets, and a progress report was prepared based on the analysis of Student's data from monthly service plans and data received from the skills trainers. Id. at 10. At the end of third grade, Student's teacher observed progress in Student's socialization with peers. Id. at 11. Student's fourth grade teacher similarly noted Student's progress in socialization skills, noting that Student "was at first very apprehensive to talk to his peers. But as the year progressed . . . he became more confident and . . . was then able to provide help sometimes to his classmates." Id. at 12.

The Home School made data and analyses on Student available to Mother after she requested this information. The Care Coordinator confirmed that the Home School provided Mother with the data sheets she had requested; the Care Coordinator, Home School Principal, and the Student Services Coordinator had provided Mother with data sheets, and a second set of the Student's records were copied and left at the office for months, although Mother did not retrieve them. Id. at 13. Further, the data collection sheets prepared by the ST between January and February of 2009 were provided to Mother in February or March 2009. Id.

Mother also expressed concerns regarding the provision of speech-language therapy services to Student. (See June 2009 IEP, Resp's Ex. 2, at JD033.)*fn3 During the first quarter of the 2009-10 school year, the Speech-Language Pathologist provided Student with 1090 minutes of services, including 910 minutes of direct 1:1 service. See Admin. Decision at 14. Student also missed 70 minutes of available speech-language therapy services during this quarter because Mother decided not to take Student out of his core classes and asked that Student not be taken out of his other classes. Id. During the second quarter of 2009-10, the Speech-Language Pathologist provided Student with 1155 minutes of services, including 1005 minutes of direct 1:1 service. Id. Finally, during the third quarter of the 2009-10 school year, the Speech-Language Pathologist provided Student with 395 minutes of direct 1:1 service before Mother removed Student from the school in February 2010. Id. Student's Speech-Language Pathologist prepared data collection sheets of Student's progress from August 2009 through February 2010. Id. at 15. From the data she collected, SLT concluded that Student was making progress, and that in some of the goals he was "able to perform some of the tasks with a hundred percent accuracy, with no prompts, so independently." Id.

By 2009, teachers observed improvement in Student's behavior and performance in all subject areas. Id. By November 2009, the Speech-Language Pathologist noted improvement in Student's speech, including: "initiates conversations, able to sequence routine and explain what he is doing; and catching on the verbal vocabulary (space, etc.)." Id. By January 2010, Student was more vocal when asking for help, more responsive to his peers, able to function well with a substitute paraprofessional or substitute teacher, and responded well to prompting from a paraprofessional or a teacher when he was zoning. Id. However, Mother's decision to pick Student up early from his after-school program "made it difficult for teachers and aides to have Student complete his work." Id.

Student left the Home School in February 2010, and enrolled in the Private School in June 2010. Student has done "extremely well" at the Private School in both his behavior and academics, and is on par with the other fourth graders with the help of his ST. Id. at 16.

Mother's various concerns about the provision of services to Student at the Home School, and State Defendants' responses, are documented in a voluminous set of correspondence. (See Resp't's Exs. 10-25.) Mother ultimately requested a due process hearing, seeking reimbursement for the cost of the Private School and asserting that Student's placement at the Private School was appropriate because State Defendants failed to provide Student with a FAPE at the Home School.

The central document at issue in this case is the June 8, 2009 IEP (the "June 2009 IEP"). Plaintiffs assert that the June 2009 IEP was not faithfully implemented in a significant manner, and seek reversal of the administrative hearing officer's decision based upon these issues. Specifically, Plaintiffs contend that the IEP was flawed and/or was not properly implemented with regard to the following: (1) Student's 1:1 aide failed to address student's academic goals, and only focused on behavioral issues; and (2) the language used to describe provision of speech/language therapy repudiated the IEP team's agreement on the frequency of speech therapy. (Pls' Br. at 4-11.)

In the Administrative Decision, the Hearings Officer considered these additional arguments raised by Plaintiffs regarding alleged flaws in the IEP:

(1) Direct 1:1 aide worked as classroom aide at times, and not directly with Student;

(2) State Defendants' collection and analysis of the instructional and behavioral data was not sufficient to address Student's needs;

3) The BISS provided for Student was not sufficiently qualified to address Student's needs and to instruct the 1:1 aide;

4) the IEP states that Speech/Language Therapy can be delivered in a number of ways that would not provide direct instruction and therein potentially affects the agreement of the IEP team for this service, and the direct service frequency in the IEP was not delivered as specified;

5) parent's ability to participate in the development of the IEP was inhibited when unable to communicate with the direct service providers and get needed documentation on Student's program implementation;

6) the extended school day program was not implemented due to the failure of State Defendants to address Student's goals during this part of the day, and because Student's direct aides would leave before the program was over for the day;

7) the Extended School Year program should not exclude the provision of services on holidays, teacher work days and waiver days;

8) State Defendants failed to implement the IEP on furlough Fridays; and

9) Student's academic and socialization goals and objectives were not sufficiently addressed in the ...


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