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I.T., By and Through His Parents Renee v. Department of Education

July 30, 2012

I.T., BY AND THROUGH HIS PARENTS RENEE AND FLOYD T., PLAINTIFFS,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII, DEFENDANT.



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

ORDER AFFIRMING IN PART AND VACATING IN PART THE HEARINGS OFFICER'S OCTOBER 6, 2011 DECISION

Before the Court is an appeal by Plaintiffs I.T. ("Student"), by and through his parents Renee and Floyd T.*fn1 ("Plaintiffs"), of the Administrative Hearings Officer's ("Hearings Officer") October 6, 2011 Findings of Fact, Conclusions of Law and Decision ("Decision"). Plaintiffs filed their Opening Brief in the instant case on March 12, 2012. Defendant the Department of Education, State of Hawai`i ("Defendant" or "the DOE") filed its Answering Brief on April 26, 2012, and Plaintiffs filed their Reply Brief on May 10, 2012. The Court heard oral argument in this matter on June 25, 2012. Appearing on behalf of Plaintiffs was John Dellera, Esq., and appearing on behalf of Defendant was James Raymond, Esq. After careful consideration of the briefs, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY AFFIRMED IN PART AND VACATED IN PART for the reasons set forth below. The Decision is VACATED insofar as the Court CONCLUDES that:

1) Defendant violated the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq., by failing to evaluate Student for a suspected auditory processing disorder, although this violation did not deny Student a Free Appropriate Public Education ("FAPE") because the evidence ultimately established that he did not have the disorder; and 2) Defendant denied Student a FAPE by failing to address his speech/language needs until formulation of the August 23, 2010 Individualized Education Programs ("IEP"). The Court GRANTS Plaintiffs' request for compensatory education as a remedy for the denial of FAPE. The Decision is AFFIRMED in all other respects.

BACKGROUND

I. Factual and Administrative Background

At the time of the Decision, Student was ten years old and in the sixth grade at Loveland Academy ("Loveland"). He has been diagnosed with attention deficit hyperactivity disorder ("ADHD"), combined type, mixed receptive-expressive language disorder, reading order, dyslexia, and a generalized anxiety disorder. Student's home school is Kaleiopuu Elementary School ("Home School"), which he attended from pre-school to the 2009-2010 school year, when he was in the fourth grade. Student began attending Loveland in mid-July 2010, and he officially enrolled there in November 2010. [Decision at 1, 4.*fn2 ]

On February 24, 2011, Plaintiffs filed their Request for Impartial Due Process Hearing ("RIH") with the DOE. [Administrative Record on Appeal ("ROA") at 4-7.] The RIH asserts, inter alia, that Student's March 3, 2009 IEP, February 22, 2010 IEP, and August 23, 2010 IEP*fn3 (collectively "the Contested IEPs") denied Student a FAPE and that the DOE refused to acknowledge or address Student's mental health/behavioral issues. [Id. at 6.]

The RIH sought the following:

1. A finding that the March 3, 2009, February 22, 2010, and May 26, 2010, June 22, 2010 and August 23, 2010 (collectively, "August 23, 2010") IEPs do not offer FAPE to [Student] and the DOE has not provided appropriate services necessary for him to obtain a meaningful benefit in the public school for the 2009-2010 and 2010-2011 school years;

2. A finding that the DOE committed procedural and substantive violations of the IDEA;

3. Reimbursement to Petitioners and/or payment to Loveland Academy for school tuition and related service expenses, including transportation, at Loveland Academy for the extended school year 2010, 2010-2011 school year, and extended school year 2011 pursuant to 20 U.S.C. 1412(a)(10((C)(iii) [sic];

4. [Student] requests multi-sensory reading and math instruction and afternoon tutoring in reading and math;

5. [Student] needs an increase in his speech therapy services provided by a qualified speech language pathologist;

6. A Functional Behavioral Assessment needs to be conducted and Behavioral Support Plan needs to be completed and implemented;

7. [Student] requires mental health services available to him throughout his school day;

8. [Student] requires an appropriate afterschool program . . .;

9. Reimbursement and/or payment for the psychological evaluation conducted by Karen Tyson, Psy.D.;

10. Compensatory education;

11. Attorneys' fees and costs. [Id. at 6-7.]

The Hearings Officer convened the due process hearing on July 25, 2011, and the evidentiary portion of the hearing continued on July 26, 27, and 28, 2011. The parties filed written closing arguments. [Decision at 3-4.]

The Hearings Officer framed the issues presented in the RIH as whether the Contested IEPs:

- failed to adequately detail Student's strengths and needs in the PLEPs,[*fn4 ] and that many of the goals and objective were inadequate or inappropriate; - offered services that were not appropriate or not properly implemented; - failed to acknowledge or address Student's mental health or behavioral issues; and - offered services in the DOE public school setting that were not appropriate for Student to obtain meaningful benefit for the 2009-2010, and 2010-2011 school years. [Id. at 13-14.]

A. March 3, 2009 IEP

As to the appropriateness of the program and placement offered in the March 3, 2009 IEP, the Hearings Officer concluded as follows:

Petitioners contend that the DOE failed to assess Student's possible auditory processing disorder. Psychologist P.M.'s[*fn5 ] February 2009 report mentions that [Central Auditory Processing Disorder ("CAPD")] should be ruled out. However, at the time the March 3, 2009 IEP was developed, Mother admitted that she had not provided the IEP team with psychologist P.M.'s report.

The Hearings Officer concludes that Petitioners have not shown that the DOE had sufficient information about Student having a CAPD to have a duty to conduct a CAPD evaluation for the March 3, 2009 IEP. The DOE can not [sic] be expected to consider a report that it had not received. Additionally, as evidenced by the March 3, 2009 [Prior Written Notice ("PWN")], the DOE was willing to consider psychologist P.M.'s report once it was received.

Further, Respondent presented evidence that an auditory processing disorder evaluation was not needed. As testified by the SSC,[*fn6 ] the DOE audiologist had opined that there was no need for Student to have an auditory processing evaluation. Additionally, parental consent is needed before an auditory processing evaluation can be done. No parental consent for an auditory processing evaluation was given.

Petitioners next contend that the March 3, 2009 IEP did not address Student's behaviors. In their Request, Petitioners state that Student's, [sic] "behaviors occur several times a day". However, special education teacher G.M.[*fn7 ] testified that Student progressed in all areas during his 3rd grade school year at the home school that needed to be addressed. The Hearings Officer concludes that Petitioners have not shown that Student exhibited behaviors at the home school that needed to be addressed. [Id. at 16-17.]

In addition, the Hearings Officer also concluded that:

*Student's PLEPs were appropriate, even though they did not address Student's behaviors, because there were no areas of behavioral concern;

*the goals and objectives were appropriate, even though they did not address Student's alleged speech and communication difficulties, because the DOE conducted a speech/language assessment in February 2009, and Student's March 3, 2009 IEP stated that the IEP team would amend the IEP to add language services after the team received Dr. Murphy-Hazzard's report;

*Student did not need speech/language services at the time the IEP team formulated the March 3, 2009 IEP because he could "functionally communicate" and he could perform even challenging tasks after verbal prompts; and

*the March 3, 2009 IEP offered an appropriate placement in the least restrictive environment. [Id. at 17-18.]

B. February 26, 2010 IEP

As to the appropriateness of the program and placement offered in the February 26, 2009 IEP, the Hearings Officer concluded as follows:

At the time the February 26, 2010 IEP was created, the DOE had psychologist P.M.'s report that recommended CAPD be ruled out. However, psychologist P.M. did not testify, and there was no explanation why CAPD should be ruled out. In fact, psychologist P.M.'s report of a BioMAP test implies that Student did not have an auditory processing disorder.

In their rebuttal brief, Petitioners argue that the DOE has a duty to evaluate when the DOE has a reason to suspect a disability. However, the Hearings Officer concludes that, because Student had not manifested any need for a CAPD evaluation in the 5 previous years he had attended the home school, the fact that psychologist P.M. mentions that CAPD should be ruled out does not place the DOE on notice that Student has a suspected disability in this area. [Id. at 19.]

The Hearings Officer noted that Plaintiffs raised the same challenges to the February 26, 2010 IEP that they raised to the March 3, 2009 IEP. Mother, however, testified that she did not voice her disagreement with the February 26, 2010 IEP to the team because she felt like she was not allowed to participate and because her input was not included in the IEP. In particular, the February 26, 2010 IEP did not mention that Student "shuts down" or that he has mental health needs. [Id.] The Hearings Officer noted that the PLEPs did reflect Mother's concerns about Student's homework. Based on the classroom observations of Student stated in the PLEPs, his special education teacher's testimony that Student did not exhibit any behavioral problems and that Student's speech and language were not areas of concern, and Student's progress in reading, the Hearings Officer concluded that Student did not need speech/language services or behavioral interventions in the February 26, 2010 IEP. As with the March 3, 2009 IEP, the Hearings Officer concluded that the February 26, 2010 IEP offered Student an appropriate placement in the least restrictive environment. [Id. at 19-20.]

C. August 23, 2010 IEP

As to the appropriateness of the program and placement offered in the August 23, 2010 IEP, the Hearings Officer noted that:

Mother testified that the DOE would not consider psychologist P.M.'s report as it was too old. However, both the SSC and special education teacher E.P.[*fn8 ] testified that at the May 26, 2010 meeting the team discussed psychologist P.M.'s report but took the fact that it was over a year old into consideration. Although psychologist P.M.'s report mentions Student's behaviors, special education teacher E.P. testified that behaviors and anxiety were not occurring in the classroom. Mother admitted that although the SSC offered to have Student assessed for CAPD, Mother did not provide consent for an evaluation.

The SSC further testified that besides the evaluations, the IEP team considers how Student is doing at the home school. [Id. at 20.]

In addition, the Hearings Officer also concluded that Plaintiffs failed to establish that the PLEPs in the August 23, 2010 IEP were inaccurate because:

*Student's PLEPs indicated that he was "functioning at a high level" and this was consistent with both his math skills and his fifth-grade-level ability to understand inferential language;

*Student's special education teacher, Ms. Parish, testified that he did not exhibit problem behaviors in the classroom and did not need mental health services; and

*Ms. Parish testified that Student progressed on his goals and objectives during the 2009-2010 school year.

[Id. at 21.] Similarly, because the DOE witnesses testified that Student did not exhibit behavioral problems at school, the Hearings Officer rejected Plaintiffs' arguments that: the amount of Student's special education services and the amount of speech/language therapy were inadequate; and Student needed supplemental behavioral supports, such as counseling. The Hearings Officer also noted that witnesses from Loveland testified that, when Student first attended the school, he did not exhibit behavioral problems. The behaviors began when he was presented more difficult tasks, but the provision of a one-to-one skills trainer helped Student tremendously. The Hearings Officer therefore concluded that the DOE did not have cause to believe that Student needed behavioral or mental health services in the August 23, 2010 IEP. [Id. at 21-22.]

The Hearings Officer noted that Student's fourth grade general education teacher testified that Student "did well, interact[ed] with his fellow students in small groups[,] . . . made progress during the school year and although he sometimes struggled with his work, Student was not withdrawn or isolative." [Id. at 22.] The Hearings Officer also credited the testimony of DOE speech and language pathologists that: the sixty minutes of speech/language therapy included in the August 23, 2010 IEP was appropriate for Student's needs; Student's communication goals and objectives were appropriate; and the speech/language services offered at Loveland were essentially the same as those the DOE offered in the August 23, 2010 IEP. The Hearings Officer discounted the opinion of Plaintiffs' privately retained psychologist, Karen Tyson, Psy.D., that Student's services were not adequate and that Student needed behavioral supports, such as counseling. The Hearings Officer therefore concluded that Plaintiffs had not established that the August 23, 2010 IEP offered Student inappropriate services. As with the other IEPs, the Hearings Officer concluded that the August 23, 2010 IEP offered Student an appropriate placement in the least restrictive environment. [Id. at 22-23.]

The Hearings Officer ultimately concluded that Plaintiffs failed to prove that the Contested IEPs denied Student a FAPE and that Plaintiffs failed to establish procedural violations of the IDEA. The Hearings Officer therefore dismissed the RIH. [Id. at 24.]

The instant action followed.

II. Plaintiffs' Opening Brief

In their Opening Brief, Plaintiffs contend that the Hearings Officer erred in dismissing their claims that:

(1) the educational program and placement offered by the Department . . . in IEPs dated March 3, 2009, February 26, 2010, and August 23, 2010 denied I.T. a free appropriate public education ("FAPE"); (2) Defendant committed procedural violations of the IDEA by failing adequately to consider the parent's input at IEP meetings;

(3) Defendant failed to evaluate all suspected disabilities; and (4) parent should be reimbursed for or Defendant should pay tuition at Loveland Academy commencing November 10, 2010 and the cost of the neuropsychological evaluation conducted by Karen Tyson dated February 19, 2011. [Opening Br. at 1.]

Plaintiffs summarize the history of Student's receipt of services beginning with the Department of Health's Zero-to-Three program and continuing through his years at the Home School and the formulation of his IEPs. [Id. at 1-11.] In particular, Plaintiffs note that they obtained a neuropsychological evaluation by Peggy Murphy-Hazzard, Ph.D., dated February 28, 2009 ("Murphy-Hazzard Report"), which indicated, inter alia, that Student may have an anxiety disorder and that CAPD should be ruled out. [Id. at 3-5; ROA, Pets.' Exh. 7 at 86-97.] The IEP team, however, did not discuss the Murphy-Hazzard Report until May 26, 2010, and Student's PLEPs did not mention the report until August 23, 2010. [Opening Br. at 6 (citing ROA, Pets.'

Exh. 2 at 20; 7/28/11 Hrg. Trans. (Vol. IV) at 608).] Further, as of May 26, 2010, neither Student's general education teacher nor his special education teacher had read the Murphy-Hazzard Report. [Id. at 10 (citing ROA, 7/27/11 Hrg. Trans. (Vol. III) at 582, 546, 555).]

Plaintiffs emphasize that the DOE's language assessment report of Student by Christie Iraha, dated February 18, 2009 ("Iraha Report"), indicated that he was eligible for speech/language services. [Id. at 5-6; ROA, Pets.' Exh. 4 at 69 (PWN dated March 3, 2009), Exh. 8 at 98-100 (Iraha Report).] The DOE, however, conditioned the commencement of services upon receiving the information about CAPD in the Murphy-Hazzard Report. [ROA, Pets.' Exh. 4 at 69.] Thus, the ...


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