The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER REVERSING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER
Plaintiff Department of Education ("DOE") of the State of Hawaii appeals an order by an Administrative Hearings Officer ("AHO") that, pursuant to the Individuals with Disabilities Education Act ("IDEA"), the DOE reimburse Defendant C.B. and his parents, Donna and Scott B. ("Parents"), for expenses at a private institution. Asserting that the DOE had failed to provide a Free Appropriate Public Education ("FAPE") to C.B., Parents had sent C.B. to Autism Management Services ("AMS"), the private facility that the child now attends. This court concludes that C.B. was not denied a FAPE and reverses the AHO's decision.
"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 ("Rowley"), 458 U.S. 176, 181 (1982) (citing 20 U.S.C. § 1401(18)). The IEP, which is prepared at a meeting attended by a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, when appropriate, the child, consists of a written document containing:
(i) A statement of the present levels of educational performance of the child;
(ii) A statement of annual goals, including short-term instructional objectives;
(iii) A statement of the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; . . . .
(v) The projected date for initiation and anticipated duration of these services; and
(vi) Appropriate objective criteria and evaluation procedures and schedules for determining on at least an annual basis, whether instructional objectives are being achieved.
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).
"Parental involvement is a central feature of the IDEA." Hoeft, 967 F.2d at 1300. "Parents participate along with teachers and school district representatives in the process of determining what constitutes a 'free appropriate public education' for each disabled child." Id.
Violations of the IDEA may arise in two situations. First, a school district, in creating and implementing an IEP, may run afoul of the IDEA's procedural requirements. Rowley, 458 U.S. at 205-06. Second, a school district may become liable for a substantive violation of the IDEA by drafting an IEP that is not reasonably calculated to enable the child to receive educational benefits. Id. at 206-07. The district must provide the student with a FAPE that is "appropriately designed and implemented so as to convey" to the student a "meaningful" benefit. Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).
While the IDEA guarantees certain procedural safeguards for children and parents, the Ninth Circuit has recognized that not every procedural violation results in denial of a FAPE. See e.g., L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009) ("Procedural flaws in the IEP process do not always amount to the denial of a FAPE."). Procedural flaws in the IEP process only deny a child a FAPE when the flaws affect the "substantive rights" of a parent or child. Id. Such substantive rights include the loss of a child's educational opportunity or an infringement of a parent's opportunity to participate in the IEP process. Id.
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, 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)).
III. FACTUAL AND PROCEDURAL BACKGROUND.
C.B. is a five-year-old boy with autism.
Administrative Record on Appeal ("AR") at 227 ("Decision") ¶ 1. He has received special education since 2009. Id. ¶ 4. Since May 2011, C.B. has been enrolled at AMS, a private program for children with autism. Id. ¶ 45. C.B. previously attended Horizons Academy, a private school. Id. ¶ 18.
Disputes about the one-to-one paraprofessional services provided by the DOE are prominent in the present case. C.B.'s home public school was Kamali'i Elementary School on the island of Maui. Id. ¶ 16. An IEP dated June 18, 2009, required Kamali'i to provide twenty-nine hours per week of daily one-toone 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. The May 2010 IEP also removed the twenty-nine-hour requirement and stated only that C.B. would receive the one-to-one paraprofessional services "daily." Petitioners' Exhibits at 11. Not satisfied with the new DOE paraprofessional and allegedly seeing C.B.'s behavior regress, Parents moved C.B. to Horizons in September 2010. Decision ¶¶ 8-16.
On October 28, 2010, the DOE held an IEP meeting that resulted in the IEP in issue before this court. Id. ¶ 22; Petitioners' Exhibits at 28. C.B.'s father wanted the IEP to include services designed to ease C.B.'s transition back to Kamali`i. Decision ¶ 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. C.B.'s father asked how much time the paraprofessional would spend with C.B. each day and was told that "someone would always be there to watch Student at all times." Id. ¶ 29. The October 2010 IEP ultimately did not require any credentials and provided that C.B. would receive one-to-one paraprofessional support "daily." Id. ¶ 30; Petitioners' Exhibits at 39.
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 procedurally violated the IDEA (1) by not discussing C.B.'s transition needs at the IEP meeting on October 28, 2010, and by not including a transition plan or addressing C.B.'s transition needs in his October 2010 IEP, and (2) by failing to provide Parents with information they requested about the paraprofessional services. Decision at 18-19. She then concluded that those procedural violations denied C.B. a FAPE.
The AHO also 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 Parents for the AMS costs until the DOE developed an appropriate IEP for ...