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J.T., By and Through His v. Department of Education

May 31, 2012

J.T., BY AND THROUGH HIS
PARENTS RENEE AND FLOYD T., PLAINTIFFS,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER REVERSING IN PART AND REMANDING HEARINGS OFFICER'S ORDER DATED SEPTEMBER 12, 2011

Before the Court is an appeal pursuant to the Individuals with Disabilities in Education Act ("IDEA") by Plaintiffs J.T., by and through his parents Renee and Floyd T. (collectively, "Plaintiffs"), of the Administrative Hearings Officer's (the "Hearings Officer") Findings of Fact, Conclusions of Law, and Decision (the "Decision"*fn1 ), filed on September 12, 2011. Plaintiffs filed their Opening Brief in the present case on February 15, 2012. Defendant Department of Education, State of Hawai'i (the "DOE") filed its Answering Brief on April 16, 2012, and Plaintiffs filed their Reply Brief on April 27, 2012. The Court heard oral argument in this matter on May 7, 2012. Appearing on behalf of Plaintiffs was John Dellera, Esq., and appearing on behalf of the DOE was James E. Raymond, Esq. After careful consideration of the parties' briefs, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY REVERSED IN PART and REMANDED for the reasons set forth below.

BACKGROUND

I. Factual and Administrative Background

J.T. is a twelve-year-old boy who was adopted by Renee T. shortly after his birth. [Opening Brief at 1 (citing Pet.'s Exh. 8 at 1).] Plaintiffs state that, from early in his life, J.T. suffered from sensory and developmental problems and had to receive occupational therapy, physical therapy, and speech therapy services provided by the State of Hawai'i Department of Health. [Id. at 2 (citing Hrg. Trans. Vol. III at 292-93).]

J.T. entered the DOE's pre-kindergarten special education program and received special education services in speech, math, and language arts from age three to five. [Id. (citing Hrg. Trans. Vol. III at 294-95).]

During second and third grades, J.T.'s Present Levels of Educational Performance ("PLEP") put his academic performance at- or above-grade level in math, but indicated limited reading comprehension and writing skills. [Id. at 3 (citing Resp.'s Exh. 4 at 17; Resp.'s Exh. 5 at 29; Resp.'s Exh. 6 at 40).] Plaintiffs question J.T.'s math assessment, claiming that he did not know how to do his homework, did not ask questions in class, and performed below his grade level. [Id. (citing Hrg. Trans. Vol. III at 295-98).] Plaintiffs also claim that J.T. has difficulty communicating, answering questions, and expressing himself. [Id. (citing Hrg. Trans. Vol. III at 299:15-21).]

In 2008, Plaintiffs sought consultation from psychologist Peggy Murphy-Hazzard, Psy.D., who examined J.T. and produced a neuropsychological evaluation dated February 25, 2009 (the "Murphy-Hazzard Report"), which concluded that J.T. had below-average to borderline verbal cognitive abilities, the possibility of an auditory processing disturbance, a basis for diagnosing attention deficit hyperactivity disorder (ADHD), and a basis for diagnosing a mixed, receptive-expressive language disorder. [Id. at 3-4 (citing Pet.'s Exh. 9 at 94-95).] The report recommended further evaluation of J.T. in order to rule out a reading disorder and central auditory processing disorder. [Id. (citing Pet.'s Exh. 9 at 96).]

As provided by the IDEA, Renee T. was a member of a team tasked with crafting an Individualized Education Program ("IEP") for J.T. She claims that she expressed the same concerns at every IEP meeting:

I would go through his language or his communication, not being able to communicate. I would bring up spelling. I would bring up reading, math. For this IEP I figured math problems were going to be coming up. And he had the communication problems. I brought up him shutting down. Because if he's not asking questions that's why he can't do his work. And I was concerned for his grades. [Id. at 4 (quoting Hrg. Trans. Vol. III at 302-03).] Renee T. claims that, although the other team members appeared to listen to her concerns, the IEPs would not reflect issues such as mental health, math, and communication. [Id. at 4-5 (quoting Hrg.

Trans. Vol. III at 303:14-19).] Plaintiffs posit that the IEP team may have ignored Renee T.'s concerns because the teachers did not take notice of his behavioral issues, as he would instead "shut down." [Id. at 5 (quoting Hrg. Trans. Vol. III at 306:12-13).] Plaintiffs point to an after-school incident in which J.T. cut another student's finger with a pair of scissors. [Id. (quoting Hrg. Trans. Vol. III at 306:15-23).]

At J.T.'s March 3, 2009 IEP meeting, Renee T. informed the members of the IEP team that the Murphy-Hazzard Report was forthcoming [id. at 4 (citing Hrg. Trans. Vol. III at 304:15-19)], and she provided the team with a copy of the report in March or April 2009 [id. at 5 (citing Hrg. Trans. Vol. III at 301:23-25)]. On May 14, 2009, J.T.'s regular-education teacher, special-education teacher, student-services coordinator, and Renee T. met to discuss the Murphy-Hazzard Report, but Plaintiffs claim that the discussions had no impact on the IEP. [Id. (citing Pet.'s Exh. 4 at 63; Hrg. Trans. Vol. III at 308:11-17).] Plaintiffs did not receive notice of the next IEP meeting, which was held on May 29, 2009. [Id. (citing Hrg. Trans. Vol. III at 308-09; Resp.'s Exh. 5 at 38).] At that meeting, the IEP team, absent Renee T., developed PLEPs that referred to some of the findings of the Murphy-Hazzard Report, but did not include provisions for central auditory processing disorder, mixed receptive-expressive language disorder, or reading disorder. [Id. at 5-6 (citing Hrg. Trans. Vol. III at 310:3-7; Resp.'s Exh. 5 at 29).]

Plaintiffs contend that the March 3, 2009 PLEPs, which were prepared without consideration of the Murphy-Hazzard Report, and the May 29, 2009 PLEPs, which were prepared after Renee T. had provided the IEP team with a copy of the Murphy-Hazzard Report, were "essentially the same and focus exclusively on language arts, omitting behavioral, math, and auditory processing needs." [Id. at 6 (citing Pet.'s Exh. 5 at 66; Pet.'s Exh. 4 at 47).] The latter IEP allegedly does not reflect any change in goals and objectives. [Id.]

On March 2, 2010, the DOE scheduled J.T.'s next IEP meeting for the following day. Renee T. was not available to attend, and she instead suggested that they meet on March 5, 2010. [Id. at 7 (citing Pet.'s Exh. 10 at 148).] The DOE held the IEP meeting on March 3, 2010, without Renee T., and produced an IEP with goals and objectives identical to the previous IEPs. [Id. (citing Pet.'s Exh. 2 at 13-15).] The DOE delivered a copy of the IEP to Renee T.'s home that day. The IEP team subsequently met on May 26, 2010 and June 22, 2010, with Renee T. present, to produce a revised IEP (the "combined June 2010 IEP"). [Decision at 49.]

By letter dated May 26, 2010, Renee T. informed the DOE that she "will place J.T. at Loveland Academy at State expense." [Opening Br. at 7 (quoting Pet.'s Exh. 10 at 140).] J.T. began attending Loveland Academy in July 2010 for assessment, and he officially enrolled on November 10, 2010. [Id. (citing Pet.'s Exh. 22 at 276; Hrg. Trans. Vol. III at 331:12-13).]

On or around March 2, 2011, J.T. filed a Request for Impartial Hearing. [Id. at 8.] The hearing took place between March 17 and 24, 2011, and the Hearings Officer issued his Decision on September 12, 2011. [Id.] The Hearings Officer's conclusions are summarized as follows:

(1) The DOE's failure to provide Plaintiffs with advanced notice of the May 29, 2009 IEP meeting resulted in a denial of a Free Appropriate Public Education ("FAPE"). [Decision at 46.] The DOE improperly denied Renee T. an opportunity to participate in the formulation of the May 29, 2009 IEP. [Id. at 48.]

(2) The DOE's failure to include Renee T. at the March 3, 2010 IEP meeting was excusable and did not result in a denial of FAPE. [Id.] There was no evidence that the DOE deliberately attempted to exclude Renee T., and the DOE subsequently held two IEP revisions meetings with Renee T. that resulted in the combined June 2010 IEP. [Id. at 49.]

(3) The combined June 2010 IEP was not a denial of FAPE. [Id. at 50-56.] The Hearings Officer determined that Dr. Murphy-Hazzard "did not do an adequate study of Student and that the report's diagnosis of Student in the mental health area is not adequate to raise concerns by the DOE insofar as Student's education is concerned." [Id. at 51.] He noted that the basis for the report is one-sided and did not pertain to any mental-health behaviors in the school setting. [Id. at 52.]

(4) J.T. is not entitled to reimbursement and/or direct payments for J.T.'s placement at Loveland during the 2010-11 school year. [Id. at 56.] The Hearings Officer made no finding as to whether Loveland Academy was "appropriate" for J.T. [Id.]

(5) J.T.'s speech-language needs should have been evaluated in 2009, but, when the DOE finally attempted to institute an evaluation process in 2010, Renee T. failed to cooperate with the DOE. The Hearings Officer determined that, if "a future full assessment of Student results in a finding that he has one of [sic] both of these disorders [i.e., mixed receptive-expressive disorder and/or an auditory processing disorder], Student should receive the equivalent of an additional year of speech-language services appropriate to Student's situation at the time of such a finding or findings." [Id. at 63.]

Plaintiffs filed this appeal from the Decision on October 12, 2011. [Opening Br. at 9.]

II. Plaintiffs' Opening Brief

Plaintiffs appeal the Decision on the grounds that:

(1) Renee T. was denied meaningful participation at the IEP team meetings; (2) the DOE denied J.T. a FAPE by creating inadequate IEPs and failing to diagnose his mental health issues and speech-language disorders; (3) he is entitled to reimbursement of his tuition at Loveland Academy; and (4) he is entitled to compensatory education. They request that the Court vacate the Decision and order the DOE to: (1) pay J.T.'s tuition and related costs at Loveland Academy from November 10, 2010 until placement is changed in accordance with the law; (2) reimburse J.T. for the cost of evaluations by Dr. Murphy-Hazzard and Karen Tyson, Psy.D.; (3) award compensatory education at Loveland Academy for two years; and (4) pay J.T.'s attorneys' fees and costs. [Id. at 36-37.]

Regarding the standard of review, Plaintiffs argue that "[d]istrict courts have discretion concerning how much deference to give to hearings officers appointed under the IDEA." [Id. at 10 (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)).] They state that courts only need give findings "due weight," J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010), and "the ultimate determination of whether an IEP was appropriate is reviewed de novo." A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010). Determination of whether a state has offered a FAPE requires a two-part inquiry: (1) whether the state complied with the procedures set forth in the IDEA, and (2) whether the IEP developed is reasonably calculated to enable the child to receive educational benefits. [Opening Br. at 10-11 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)).] "Procedural deficiencies that result in the loss of educational opportunity or that infringe upon the parent's opportunity to participate in the IEP process in a meaningful way require a finding of denial of FAPE." [Id. at 11 (citing W.G. v. Target Range Sch. Dist., 960 F.2d 1479, 1484 (9th Cir. 1992)).]

A. Parent's Participation in IEP Meetings

Plaintiffs first argue that the Hearings Officer failed to uphold Renee T.'s right to meaningfully participate in IEP meetings. Plaintiffs cite to a number of ways in which the IDEA guarantees parental rights, including the inclusion of a parent on the child's IEP team. [Id. at 11-12.]

1. Attendance at IEP Meetings

Plaintiffs argue that the DOE denied Renee T. the opportunity to participate at IEP meetings. They contend that, with regard to the May 29, 2009 IEP, for which the Hearings Officer determined that J.T. was denied a FAPE, the Hearings Officer should have immediately remedied the violation, rather than conditioning the award of one-year compensatory education on a future evaluation. [Id. at 12-13 (citing Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 1994) (it "may be a rare case when compensatory education is not appropriate")).]

With regard to the Hearings Officer's ruling that the DOE's refusal to reschedule the March 3, 2010 IEP meeting to accommodate Renee T. did not implicate a denial of FAPE, Plaintiffs contend that the Hearings Officer erred. [Id. at 13.] The Hearings Officer reasoned that the DOE was "put in a bind" by its March 3, 2010 internal deadline and that the IEP developed at that meeting was not "the definitive IEP," since it was revised at subsequent meetings with Renee T. present. [Id. at 13 (citing Decision at 48-49).] According to Plaintiffs, however, the DOE could have postponed that meeting, because March 3, 2010 was merely an "arbitrary date" that the DOE selected for its review, as the actual "due date" for an IEP is the beginning of the following school year. [Id. at 13-14 (citing 34 C.F.R. § 300.323(a)).] Plaintiffs argue that, even if the DOE were held to the March 3 deadline, it was the DOE's own fault that it was forced to proceed with the meeting. The IEP team had to reschedule a meeting set for February 26, 2010. [Id. at 14 (citing Pet.'s Exh. 10 at 147; Hrg. Trans. Vol. III at 311:18- 25).] Renee T. apparently could not meet at the scheduled time on March 3, 2010 and suggested four other dates. [Id. (citing Pet.'s Exh. 10 at 148).] The IEP team instead met without Renee T., allegedly "for no good reason." [Id. (citing Pet.'s Exh. 10 at 146 ("being that March 3, 2010 was [J.T.]'s IEP annual due date, in [J.T.]'s best interest we proceeded with his annual IEP meeting")).] According to Plaintiffs, the DOE violated IDEA procedure when it favored its internal deadline over Renee T.'s schedule. [Id. at 14-15 (citing Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003)).]

Plaintiffs also argue that "the IDEA requires that parents have a full and meaningful opportunity to attend every IEP meeting." [Id. at 15 (emphasis in original).] They state that, if parents are excluded from IEP meetings, it is harder for them to convince the other team members to change their minds at later meetings. [Id.]

2. Meaningful Participation by Parent

Plaintiffs next argue that the Hearings Officer erred in finding that J.T. had no mental health or behavioral needs and disregarding "one-sided" information Renee T. provided insofar as it "was not substantially grounded in Student's educational setting." [Id. at 16 (quoting Decision at 52).] Renee T. had testified that J.T.'s teachers were not interested in her input and addressed only needs that manifested at school: (1) the DOE discontinued J.T.'s special education services in math, despite Renee T.'s claim that he was still struggling with homework; [id. (citing Hrg. Trans. Vol. III at 295:12);] (2) Renee T. sought help from a psychologist because J.T. was allegedly having tantrums at home and not asking questions at school; [id. (citing Hrg. Trans. Vol. III at 299-300);] (3) Renee T. shared her concerns about J.T.'s behavior at IEP meetings, but the IEPs did not reflect her concerns; [id. at 16-17 (citing Hrg. Trans. Vol. III at 303:14-19);] and (4) although the DOE issued a Prior Written Notice ("PWN") on May 14, 2009 indicating that the IEP would take into account the Murphy-Hazzard Report, the May 29, 2009 IEP did not include any of the Murphy-Hazzard Report's recommendations [id. at 17 (citing Pet.'s Exh. 4 at 60-61)].

Plaintiffs claim that, after the March 3, 2010 IEP meeting that Renee T. could not attend, the DOE held subsequent IEP meetings, but the IEP team ignored Renee T.'s concerns. [Id. at 17-18 (quoting Hrg. Trans. Vol. III at 316-18).] Plaintiffs contend that the Hearings Officer disregarded Renee T.'s testimony regarding J.T.'s alleged behavioral problems and erroneously "dismissed Dr. Murphy-Hazzard's diagnosis because she considered information provided by Parent." [Id. at 18 (emphasis in original).] Plaintiffs conclude that the DOE's denial of meaningful parental participation was a substantial procedural violation of the IDEA that denied J.T. a FAPE. [Id.]

B. Other Denials of FAPE

1. Failure to Evaluate Suspected Disabilities

Plaintiffs argue that the DOE denied J.T. a FAPE when it failed to evaluate him at his mother's request. [Id. at 19 (citing 20 U.S.C. § 1414(a)(2)(A)(ii); 34 C.F.R. § 300.303(a)(2)).] They argue that a school district is under an absolute obligation to assess all areas of suspected disabilities, and failure to do so may constitute a procedural denial of FAPE. [Id. at 19-20 (citing Park ex rel. Park v. Aneheim Union High Sch. Dist., 464 F.3d 1025, 1031-33 (9th Cir. 2006); Pasatiempo ex rel. Pasatiempo v. Aizawa, 103 F.3d 796, 802 (9th Cir. 1996); N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1209 (9th Cir. 2008); Amanda J. ex rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877 (9th Cir. 2001); Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994)).] Plaintiffs claim that, if the parent disagrees with the school district's evaluation, the parent has a right to an independent evaluation at the public's expense. [Id. at 19 (citing 34 C.F.R. § 300.502).]

a. Mental-Health Issues

Plaintiffs take issue with the Hearings Officer's finding that the DOE had no reason to suspect J.T. had mental-health problems because he did not experience problems at school.

They argue that such a determination "is against the weight of the evidence, applies the wrong legal standard, and is contrary to law." [Id. at 20.]

As to Plaintiffs' first argument, that the Hearings Officer's conclusions were against the weight of the evidence, Plaintiffs argue that "substantial evidence was offered to the IEP team that J.T. had behavioral problems that impaired his ability to do homework and to learn in class. The evidence was either ignored or erroneously disregarded by the hearings officer[.]" [Id. at 23.]

Plaintiffs take issue with the testimony of Glorilynn Manding, J.T.'s special-education teacher. They argue that, although Ms. Manding testified that she did not notice any behavioral problems (other than that J.T. was "impulsive in blurting out words"), she was not a mental health expert able to diagnose J.T.'s mental-health disabilities. [Id. at 21 (citing Hrg. Trans. Vol. III at 382:12-13, 399:20-24).] They point to Ms. Manding's testimony that the teachers on the IEP team considered the Murphy-Hazzard Report only insofar as it applied to the educational setting. [Id. (quoting Hrg. Trans. Vol. III at 386:23-24).]

Plaintiffs also take issue with the testimony of Esther Parish, J.T.'s special-education teacher in 2009-10. She testified that J.T. did not need mental-health services because his behavioral problems did not manifest in class. [Id. at 22 (citing Hrg. Trans. Vol. III at 411, 417-18).]

Plaintiffs challenge the testimony of school psychologist Renee Bergeron, who allegedly never met or observed J.T., but only reviewed his records and interviewed his special-education teachers. [Id. at 22 (citing Hrg. Trans. Vol. IV at 471-72).] Dr. Bergeron concluded that J.T. did not need mental health services because he was "progressing" and his teachers did not have "any mental health concerns." [Id. (quoting Hrg. Trans. Vol. IV at 477:14-15).]

Plaintiffs point to other evidence presented to the IEP team and the Hearings Officer allegedly demonstrating that J.T. suffered from behavioral problems: (1) the Murphy-Hazzard Report mentioned hyperactivity, inattention, impulsivity, and anxiety that "provide a clear basis for diagnosing ADHD, combined type"; [id. at 23 (citing Pet.'s Exh. 9 at 95);] (2) Renee T.'s concerns regarding J.T.'s anxiety, tantrums, and "shutting down" in class; [id. (citing Hrg. Trans. Vol. III at 299:15-24);] (3) the incident in which J.T. cut another child's finger with a pair of scissors; [id. (citing Hrg. Trans. Vol. III at 306:15-23);]

(4) reports from Loveland Academy that J.T. is an introvert who "internalize[s] his emotions," "shut[s] down, avoid[s] instructions, and stop[s] communicating," and has acted out aggressively towards peers [id. at 23-24 (citing Pet.'s Exh. 16 at 230; Hrg. Trans. Vol. II at 172:14-24, 193:14-16)].

Plaintiffs argue that the Hearings Officer's determination that J.T.'s behavior at Loveland Academy was the result of being "uprooted" from his home school, changing his teachers, and placing him in a program that "was not challenging enough" was unsupported by the record and contrary to evidence that Loveland Academy placed J.T. in a program for children with socialization and behavioral problems. [Id. at 24 (citing Decision at 53).] J.T.'s aide at Loveland Academy testified that he "still has deficits and social skills of the young kids," although "[h]is academic group is with peers at the same level." [Id. at 25 (quoting Hrg. Trans. Vol. II at 173-74).]

As to Plaintiffs' second argument, that the Hearings Officer applied the wrong legal standard, they argue that the Hearings Officer improperly ignored the DOE's failure to consider J.T.'s behavior outside of an educational setting. [Id. at 25-26.] Plaintiffs contend that the DOE "was required to consider all relevant information (especially that provided by the parent, see 20 U.S.C. § 1414(c)(1)(A)(i))," and it even admitted that information not observed at school should be considered in evaluating speech-language disorders. [Id. at 26 (citing Pet.'s Exh. 2 at 7).]

As to Plaintiffs' third argument, that the Hearings Officer reached conclusions contrary to law, Plaintiffs argue that the Hearings Officer erred in finding that the DOE did not violate its duty to conduct a mental-health evaluation: (1) the Hearings Officer speculated that behavioral problems would have been reported to J.T.'s special-education teachers and failed to recognize that those teachers were not qualified to identify mental-health problems; [id. at 27 (citing Decision at 52);]

(2) the Hearings Officer dismissed the Murphy-Hazzard Report because it was based "one-sidedly" on information that Renee T. provided, even though Dr. Murphy-Hazzard also considered standardized tests and her own observations of J.T.; [id. (citing Decision at 51; Pet.'s Exh. 9 at 87);] and (3) the Hearings Officer's speculation that J.T.'s behavioral problems at Loveland may be caused by "uprooting" J.T. from public school was unsupported by evidence [id. (citing Decision at 53)].

b. Speech-Language Disorders

Plaintiffs argue that the DOE's "belated" offer to evaluate him for speech-language disorders violated the IDEA. [Id. at 27-28.] They state that the DOE failed to evaluate J.T. for central auditory processing disorder and mixed receptive-expressive disorder, as recommended by the Murphy-Hazzard Report. [Id. at 27.] Although the Hearings Officer agreed with J.T. on this point, he concluded that the DOE's offer to evaluate J.T. was sufficient such that the DOE did not violate the IDEA. [Id. at 28 (citing Decision at 55).]

2. Inadequate IEPs

Plaintiffs next argue that the DOE created inadequate IEPs to meet J.T.'s educational needs. They state that the DOE is required to develop IEPs reasonably calculated to enable disabled students to receive educational benefits by providing personalized instruction with sufficient support services to allow the child to benefit educationally. [Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203-04 (1982)).] Plaintiffs contend that the Hearings Officer "completely ignored" the requirement in 20 U.S.C. § 1414(d)(1)(A)(i)(bb) that an IEP meet "each of the child's other educational needs that result from the child's disability." [Id. at 29.] Plaintiffs offer a number of goals and objectives, based on his assessments at Loveland Academy, that should have been included in his IEPs: mental-health goals, after-school program, speech-language services, and tutoring in mathematics. [Id. at 29-30.]

C. Reimbursement for Placement at Loveland Academy

1. Reimbursement Standards

Plaintiffs further argue that the Hearings Officer erred when he denied J.T. reimbursement for his education at Loveland Academy. They state that "[r]eimbursement for the costs of a unilateral private placement is generally awarded where the school district has denied a FAPE and the private placement is a proper one." [Id. at 30 (citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993)).] They argue that the Hearings Officer erred when he found that J.T. did not have mental-health needs and was not entitled to reimbursement for placement at Loveland Academy, merely because Renee T. unilaterally placed him at Loveland Academy specifically "because of its program dealing with mental health needs." [Id. at 31 (quoting Decision at 56).] Rather, they argue that (1) the DOE denied him FAPE (as discussed earlier), and (2) Loveland Academy is a proper placement.

As to that second contention, Plaintiffs cite to the Ninth Circuit's decision in C.B. ex rel. Baquerizo v. Garden Grove Unified School District, 635 F.3d 1155, 1159 (9th Cir. 2011), for the proposition that, "[t]o qualify for reimbursement under the IDEA, parents need . . . only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." [Id. at 32.] Plaintiffs state that "[t]here is no question that Loveland offers J.T. a program that meets his needs, and that he is making progress." [Id. (citing Pet.'s Exh. 13; Pet.'s Exh. 25 at 323, 305).] Plaintiffs state that Loveland Academy is a proper placement and request reimbursement for its tuition and costs. [Id. at 32-33.]

2. Statute of Limitations

Plaintiffs argue that there is no merit to the DOE's anticipated statute of limitations defense. Hawai'i Revised Statutes § 302A-443(a)(2) requires that a parent must request a due process hearing within 180 days of the unilateral placement in order to seek reimbursement of the private-school tuition. [Id. at 33 (citing Haw. Rev. Stat. § 302A-443(a)(2)).] According to Plaintiffs, the facts are not in dispute that: Renee T. gave the DOE notice on May 26, 2010 that she intended to place J.T. at Loveland Academy; [id. (citing Pet.'s Exh. 10 at 140);] he withdrew from public school for evaluation at Loveland Academy in July 2010; [id. (citing Hrg. Trans. Vol. I at 32-33);] and he enrolled at Loveland Academy on November 10, 2010 [id. (citing Pet.'s Exh. 22 at 276)]. Plaintiffs filed the due process complaint on March 2, 2011, which is 214 days after the start of J.T.'s evaluation at Loveland Academy, but 112 days after his official enrollment at Loveland Academy. [Id. (citing Resp.'s Exh. 1).]

Plaintiffs argue that the policy behind the statute of limitations defense precludes the DOE's argument. They state that the purpose of the statute of limitations is to bar stale claims where, due to the amount of time that has passed, it is impossible to determine their truth. [Id. at 33-34 (citing Yoshizaki v. Hilo Hosp., 50 Haw. 150, 433 P.2d 220 (1967);

Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390 (1868)).] In this case, they argue, the DOE knew at the May 26, 2010 IEP meeting that J.T. would be evaluated for placement at Loveland Academy. [Id. at 34 (citing Pet.'s Exh. 10 at 140).] By letter dated September 27, 2010 (likely in response to the DOE's letter of September 17, 2010, which suggested "educational neglect" for J.T.'s non-attendance), Renee T. advised the DOE that J.T. "is being placed at Loveland Academy. He is being assessed for placement and undergoing diagnostic prescriptive teaching." [Id. (quoting Pet.'s Exh. 10 at 115).] Plaintiffs state that the DOE acknowledged his enrollment by letters dated September 28, 2010 and September 30, 2010. [Id. at 34-35 (citing Pet.'s Exh. 10 at 112-14).] Plaintiffs request that the Court order the DOE to reimburse them for J.T.'s tuition at Loveland Academy beginning from November 10, 2010 until placement is changed by law.

D. Compensatory Education

Plaintiffs' last argument involves their request for compensatory education. Plaintiffs argue that Renee T.'s exclusion from the May 29, 2009 IEP meeting resulted in inadequate consideration of the Murphy-Hazzard Report regarding J.T.'s suspected disabilities, improper PLEPs, and inadequate goals and objectives. Plaintiffs contend that the DOE deprived J.T. of necessary services from March 3, 3009 to July 2010, and that the Hearings Officer's award of compensatory education contingent upon an evaluation in the undetermined future is effectively a denial of compensatory education. [Id. at 35-36.]

III. Defendant's Answering Brief

In its Answering Brief, the DOE first discusses the level of deference the Court should afford the Decision. [Answering Br. at 10-11.] The DOE argues that the Decision "must be afforded considerable deference and should not be disturbed." [Id. at 11.] It states that the Hearings Officer carefully considered and weighed the evidence, was fully engaged in the evidentiary portion of the hearing, carefully evaluated counsels' objections, did not favor either side, was in the best position to weigh and consider objections, and supported his Decision with an extensive Findings of Fact and numerous citations to the record. [Id. at 10-11.]

A. Parent's Participation in IEP Meetings

1. Attendance at IEP Meetings

The DOE first notes that, in accordance with the Target Range rule applied by the Ninth Circuit in L.M. v. Capistrano Unified School District, 556 F.3d 900, 909 (9th Cir. 2009), which provides that procedural deficiencies that cause the loss of educational opportunity or seriously infringe on the parents' ability to take part in the IEP process result in the denial of FAPE, the Hearings Officer ruled that J.T.'s parents' exclusion from the May 29, 2009 IEP meeting resulted in a denial of FAPE.

[Id. at 12.] The Hearings Officer awarded J.T. compensatory education for this violation.

The DOE next points to the Hearings Officer's conclusion that Renee T.'s non-attendance at the March 3, 2010 IEP meeting did not deny J.T. a FAPE. It highlights the Hearings Officer's determination that the DOE attempted to schedule a meeting to meet the March 3, 2010 annual IEP review date and argues that whether or not March 3 was the actual review date is irrelevant to the analysis, as the DOE believed it to be so and acted to meet that deadline. [Id. at 13 & n.2.] In determining that the DOE did not deny J.T. a FAPE, the Hearings Officer examined the effect of Renee T.'s absence on the IEP formulation and noted: (1) the DOE knew that the March 3, 2010 IEP was not the final IEP; [id. at 13-14 (citing Hrg. Trans. Vol. III at 431:1-22);] (2) the DOE promptly delivered the March 3, 2010 IEP to Renee T.'s home; [id. at 14 (citing Hrg. Trans. Vol. III at 431:12);] (3) the DOE told Renee T. that a revised IEP was warranted; [id. (citing Hrg. Trans. Vol. III at 431:12-14);]

(4) the DOE cooperated with Renee T. to schedule another IEP meeting; [id. (citing Hrg. Trans. Vol. III 352-53, 408:1-15);] and (5) the DOE held two additional IEP meetings to revise the March 3, 2010 IEP, with Renee T. and an advocate in attendance [id. (citing Pet.'s Exh. 2 at 9-23)].

2. Meaningful Participation by Parents

With regard to Plaintiffs' argument that the IEP team disregarded Renee T.'s input, the DOE argues that, just because the DOE members of the IEP team did not always agree with Renee T., it does not mean that they did not consider her concerns. [Id. at 14-15.] The DOE cites to the Ninth Circuit's decision in Ms. S. ex rel. G. v. Vashon Island School District, 337 F.3d 1115, 1131-32 (9th Cir. 2003), which held that a public school "has no obligation to grant [parent] a veto over any individual IEP provision." [Id. at 15 (quoting Ms. S., 337 F.3d at 1131) (alteration in Answering Brief)).] That case relied on Doe ex rel. Gonzales v. Maher, 793 F.2d 1470, 1490 (9th Cir. 1986), which recognized that, in the absence of agreement between IEP team members, the agency has a duty to ...


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