The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER DENYING PARENTS' SECOND MOTION FOR SUMMARY JUDGMENT AND AFFIRMING IN PART AND REMANDING IN PART THE ADMINISTRATIVE DECISION
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., was enacted by Congress to, among other things, "ensure that all children with disabilities have available to them a free appropriate public education [("FAPE")] that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A) & (B). The IDEA provides federal money to state and local education agencies to assist them in educating disabled children, on the condition that the state and local agencies implement the substantive and procedural requirements of the IDEA. See R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1121 (9th Cir. 2011).
Under the IDEA, state and local education agencies are required to identify children with disabilities and develop annual Individual Education Programs ("IEPs") for every child.
20 U.S.C. § 1414. An IEP is a comprehensive document developed by a team of parents, teachers, and other school administrators setting out the goals for the child, and the special education and related services that are necessary to reach those goals. Id. § 1414(d). The IDEA also provides procedural safeguards to help ensure that the child receives a FAPE, including an opportunity for due process hearings for complaints alleging any violation of the IDEA. K.D. v. Dep't of Educ., Hawaii, 665 F.3d 1110, 1114 (9th Cir. 2011). During the pendency of any proceedings conducted pursuant to the IDEA, the child is entitled to remain at her "then-current educational placement." 20 U.S.C. § 1415(j).
II. Procedural Background
K. ("Student") is a student who is eligible for special education under the IDEA. Acting on her behalf, her parents, Aaron P. and Puakielenani P. ("Mother") (collectively, "Parents"),*fn1 on July 15, 2010, and December 15, 2010, filed Requests for Impartial Due Process Hearings challenging the sufficiency of Student's IEPs formed on September 17, 2009, and August 27, 2010. Administrative Record on Appeal ("Admin. Rec."), at 1-16, 41-49. The administrative hearings officer ("Hearings Officer") consolidated the two cases, DOE SY1011-005 and DOE-SY1011-084. Id. at 70-72.
On September 20, 2011, the Hearings Officer issued a decision concluding that Student had been denied a FAPE because the September 17, 2009 IEP did not offer an appropriate program and placement and the August 27, 2010 IEP did not offer an appropriate placement. Id. at 343-81 ("Admin. Dec.").*fn2 The Hearings Officer further concluded that Student's current private placement, the Pacific Autism Center ("PAC"), is an appropriate placement. Admin. Dec. 37. The Hearings Officer deemed Parents prevailing parties and granted Parents "reimbursement for the costs of continued placement at the current private placement, including transportation and other related services, for the periods of August 3, 2009 to June 30, 2010, and December 6, 2010 to present [(September 20, 2011)]." Id. at 39. The Hearings Officer denied Parents' requests for reimbursement for private evaluations and compensatory education. Id.
On October 20, 2011, Parents filed an appeal in this Court requesting attorneys' fees and challenging numerous findings of fact, the failure of the Hearings Officer to address their claim that the DOE failed to implement Student's August 27, 2010 IEP, and the denial of reimbursement for evaluations and compensatory education. Doc. No. 1 ("Parents' Compl.").
Also on October 20, 2011, the Hawaii Department of Education (the "DOE") filed an appeal in state court. See Doc. No. 10-1 ("DOE's Compl."). The DOE seeks a finding that it provided a FAPE to Student, reversal of the Administrative Decision, attorneys' fees, a denial of Parents' request for attorneys' fees, and such further relief as may be just and equitable under the circumstances. Id. Prayer for Relief. Parents removed the DOE's appeal to this Court on November 20, 2011. Doc. No. 10. On February 6, 2012, the Court consolidated these two appeals. Doc. No. 22.
On June 8, 2012, Parents filed an opening brief ("Parents' Opening Br."). Doc. No. 69. On June 12, 2012, the DOE filed an opening brief ("DOE's Opening Br."). Doc. No. 73. On July 10, 2012, Parents filed an answering brief to the DOE's opening brief ("Parents' Answering Br."), Doc. No. 80, and the DOE filed an answering brief to Parents' opening brief ("DOE's Answering Br."). Doc. No. 79. On July 24, 2012, Parents filed an optional reply brief to DOE's Answering Brief ("Parents' Reply"). Doc. No. 94.
Meanwhile, on March 9, 2012, Parents filed a Motion for Partial Summary Judgment seeking an order enforcing stay put payments and for summary adjudication that PAC did not charge unreasonable fees. Doc. No. 31. On March 27, 2012, and April 17, 2012, the Court granted Parents' motions to supplement the record on appeal to add evidence related to their stay put claim. Doc. Nos. 53 & 63. On May 4, 2012, the Court granted Parents' Motion for Partial Summary. Doc. No. 67 ("Stay Put Order"). The Court held that PAC is Student's "then-current educational placement," within the meaning of the IDEA's stay put provision, 20 U.S.C. § 1415(j), and that Student is entitled to stay put relief. See Stay Put Order at 28. Parents asked the Court to "summarily adjudicate that portion of the 9/20/2011 HOD which correctly refrained from finding PAC fees 'unreasonable.'" Doc. No. 58, at 6. The DOE did not oppose this request and therefore the Court concluded that the DOE has waived any argument that PAC's fees are unreasonable. See Stay Put Order at 28.
Specifically, the Court concluded:
[T]he DOE's obligation to pay for Student's PAC costs began when the placement became bilateral on September 20, 2011 -- the date of the Hearing Officer's decision. The DOE is responsible for Student's PAC costs and fees, including late fees, from September 20, 2011, until the conclusion of the instant proceedings.
The DOE is directed to reimburse Parents for any tuition they paid for this time period and to pay the balance of the amount owed to PAC directly.
Id. at 29 (internal citation omitted). The Court ordered that the DOE meet its obligations for bills incurred up to the date of its Order (May 4, 2012) by May 31, 2012, "provided that the DOE must pay Student's June tuition by PAC's due date." Id. at 30.
On July 10, 2012, Parents filed a Second Motion for Partial Summary Judgment ("Parents' Sec. MSJ"), accompanied by a supporting memorandum ("Parents' Sec. MSJ Mem.") and concise statement of facts ("Parents' CSF"). Doc. Nos. 81 & 82. In this motion, Parents seek to amend the record on appeal to add evidence related to the DOE's alleged noncompliance with the Court's Stay Put Order, a declaration that the DOE has not complied with all of its stay put obligations, an order enforcing the DOE's stay put obligations, and a declaration that the DOE's post-Stay Put Order actions and inactions separately denied Student a FAPE. Parents' Sec. MSJ 2-6. The evidence Parents seek to add to the record is Exhibits A-X to Parents' Second Motion for Partial Summary Judgment. See Doc. Nos. 82-92.
The DOE filed an opposition to Parents' Second Motion for Summary Judgment on August 22, 2012 ("DOE's Opp'n to Sec. MSJ"), and a reply to Parents' CSF ("DOE's CSF"). Doc. Nos. 96 & 97. On August 29, 2012, Parents filed a reply. Doc. No. 98.
On September 12, 2012, the Court held a hearing on the parties' administrative appeals and on Parents' Second Motion for Partial Summary Judgment.
III. Factual Background*fn3
Student is a seven-year-old child who is eligible for special education under the IDEA. In July 2009, Mother and Student moved from Maui to Oahu, where Student's home school is Ahuimanu Elementary School (the "home school" or "Ahuimanu"). Admin. Dec. 4. Student's last Maui IEP was developed on July 17, 2009 IEP (the "July 2009 Maui IEP"). Id. at 4. The July 2009 Maui IEP offered student numerous supplemental aids and services including paraprofessional support for 34.25 hours per week, autism consultation services for 240 minutes per month, and behavioral analyst support for 20 hours per month. Id. It stated, "Due to [Student's] global developmental delays . . . an intensive program in the areas of functional communication, physical and emotional regulation, social interaction, self help/daily living skills, cognitive/pre-academic skills, fine motor skills is needed." Id. This IEP was never implemented, however, due to Student's move to Oahu. Id.
Student's IEP team met at the current home school, Ahuimanu, on August 27, 2009 to determine Student's eligibility under the IDEA and on September 17, 2009, to develop an IEP for Student at the home school. The IEP developed at this meeting ("the September 17, 2009 IEP") provided for special education services for the entire school day, direct speech-language therapy services of 540 minutes a quarter, direct occupation therapy services of 270 minutes a quarter, 1:1 instructional support of 1740 minutes per quarter, behavioral analyst support of 20 hours per month, parent education services of 240 minutes per month, and physical therapy consultation services of 30 minutes per quarter. DOE's Admin. Ex. 10, at 175.*fn4 The IEP team determined that Student did not require physical therapy services, nor an extended school day to derive educational benefit. See Admin. Dec. 8.
Student began attending PAC on August 3, 2009. Admin. Dec. 5. Parents wrote a letter, stamped received by Student's Maui home school on July 6, 2009, that Parents disagreed that the Maui IEP offered Student a FAPE and they were enrolling Student in a private placement at public expense. DOE's Admin. Ex. 28, at 623. The DOE, however, did not receive a letter from Parents regarding the September 17, 2009 IEP until June 22, 2010, in which Parents stated they disagreed that the September 17, 2009 IEP offered Student a FAPE. Id. Due to financial considerations, Student stopped attending PAC on June 30, 2010. Id.
Student's IEP team met on July 19, 2010, August 10, 2010, and on August 27, 2010 to develop the second IEP for Student at the current home school. See DOE's Admin. Ex. 12, at 231. At this meeting, the IEP team had the August 26, 2009 speech-language evaluation and a January 2010 progress report from PAC. Id. at 232. The IEP developed at this meeting ("the August 27, 2010 IEP") provided for special education services of 1770 minutes per week, direct occupational therapy ("OT") services of 60 minutes per week, direct speech-therapy services of 60 minutes twice a week, 1:1 instructional support services of 720 minutes per week after school, Autism Educational Consultation services of 15 hours a month after school, parent education services of 4 hours a month, physical therapy consultation services as needed, team meetings of 90 minutes per month, and Autism Educational Consultation Services during school of 15 hours a month. See id. at 250-51. Student's mother was present at the July 2010 and August 2010 IEP meetings. See Admin. Tr. Vol. IV, at 550-55, 576-82.
Meanwhile, during the Summer of 2010, Student attended a home program but continued to receive speech/language services at PAC. Admin. Dec. 10. Student began attending the home school on September 10, 2010. Id. at 13. On December 1, 2010, Parents withdrew Student from the home school. Id. at 18. Student re-enrolled at PAC on December 6, 2010. Id.
The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Summary judgment is therefore appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion," and can do so in either of two ways: by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
"A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case. A 'genuine issue' of material fact arises if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).*fn5 Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir. 2006). The moving party may do so with affirmative evidence or by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.*fn6 Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 324; Matsushita Elec., 475 U.S. at 586; Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).*fn7
The nonmoving party must instead set forth "significant probative evidence" in support of its position. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat'l, 391 U.S. at 290). Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322.
When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., 809 F.2d at 630--31.*fn8 Accordingly, if "reasonable minds could differ as to the import of the evidence," summary judgment will be denied. Anderson, 477 U.S. at 250--51.
II. Review of Administrative Appeals
In evaluating an appeal of an administrative decision under the IDEA, the district court "(I) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C).*fn9
The statutory requirement "that a reviewing court base its decision on 'the preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982). Rather, "due weight" must be given to the findings in the administrative proceedings. Id.
The amount of deference given to an administrative hearings officer's findings is a matter of discretion for the court. See Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). The court must "consider the findings 'carefully and endeavor to respond to the hearing officer's resolution of each material issue,' but the court 'is free to accept or reject the findings in part or in whole.'" Id. (quoting Gregory K., 811 F.2d at 1311). "When exercising its discretion to determine what weight to give the hearing officer's findings," the court may "examine the thoroughness of those findings" and accord greater deference when they are "'thorough and careful.'" Id. (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)).
A court's inquiry in reviewing administrative decisions
under the IDEA is twofold: "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more." Rowley, 458 U.S. at 206-07 (footnotes omitted); see also Smith, 15 F.3d at 1524.
Parents' second motion for summary judgment seeks to supplement the record on appeal with documents related to the DOE's conduct regarding Parents' stay put claim. Parents also ask this Court to conclude that "DOE's failure to pay stay put causing Student's suspension from April 4, 2012 to May 1, 2012 and/or DOE's increasingly burdensome monitoring demands upon Student K. and/or PAC, resulted in impeding Student K.'s right to a FAPE significantly impeding parents' opportunity to participate in the decision-making process regarding the provision of FAPE, and caused deprivation of education benefits to Student K., violating IDEA justifying the stay put remedial relief sought." Parents' Sec. MSJ Mem. 25. Parents also assert that the DOE has failed to pay to PAC a portion of the stay put amount ordered by the Court and has incurred further late fees. See Parents' Sec. MSJ Declaration of Puakielenani P. ¶¶ 37-44.
A. Supplementation of the Record
"A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP." Mackey v. Bd. of Educ. for Arlington Cent. Sch.
Dist., 386 F.3d 158, 160 (2d Cir. 2004). The Court will thus consider Parents' exhibits in the limited context of Parents' motion to enforce stay put. It is improper to consider them in context of the administrative appeal because they relate to events after the Hearings Officer's decision and are not otherwise applicable to the issues raised in the ...