The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER AFFIRMING HEARINGS OFFICER'S NOVEMBER 29, 2011 DECISION
Before the Court is Plaintiffs Rachel L. ("Mother"), individually and on behalf of her minor child, Julia L.'s ("Student," both collectively "Plaintiffs"), appeal from the Administrative Hearings Officer's ("Hearings Officer")
November 29, 2011 Findings of Fact, Conclusions of Law and Decision ("Decision"*fn1 ) dismissing Plaintiffs' Request for Impartial Due Process Hearing ("RIH"), pursuant to the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiffs filed their opening brief on June 12, 2012. Defendants the Department of Education, State of Hawaii, and Kathryn Matayoshi, in her official capacity as Superintendent of the Hawaii Public Schools ("Defendants" or "the DOE"), filed their answering brief on July 16, 2012. This appeal came on for hearing on August 27, 2012. Appearing on behalf of Plaintiffs was Keith Peck, Esq., and appearing on behalf of Defendants was Gary Suganuma, Esq. After careful consideration of the supporting and opposing memoranda, and the arguments of counsel, the November 29, 2011 Decision is HEREBY AFFIRMED.
I. Factual and Administrative Background
At the time in question, Student was twelve years old and in the sixth grade at Redemption Academy. Student is eligible for special education and related services under the IDEA in the category of autism. Student's former home school was Kaelepulu Elementary School ("Former Home School"), and her current home school is Kailua Intermediate School ("Current Home School"). Student attended Redemption Academy from 8:00 a.m. until 1:00 p.m. and received services from Pacific Autism Center from 1:15 p.m. until 3:30 p.m. Mother has a doctorate in clinical psychology and has worked for a local children's hospital in the area of pediatric trauma for seven years. She has a regular caseload and also handles emergencies, so she is always at the hospital from 8:00 a.m. to 3:00 p.m. and sometimes until 8:00 at night. Mother and Student's other parent ("Parent #2," collectively "Parents") adopted student at twenty-two months. [Decision at 1, 4-5.]
Student's Former Home School began preparing for Student's annual Individualized Education Program ("IEP") meeting approximately three months before an April 21, 2011 annual review deadline. On January 18, 2011, Student Services Coordinator Peggy Yogi sent Mother an e-mail with a checklist of things to do in order to prepare for Student's annual IEP. The e-mail stated that Melanie Calleon would be Student's Care Coordinator for the year. The e-mail was sent to Mother's email address,*fn2 and Ms. Calleon was copied on the email. Ms. Calleon is a licensed special education teacher and was previously the Student Care Coordinator when Student was in the first, second, and third grades. [Id. at 5.]
On February 24, 2011, Ms. Yogi sent Mother an e-mail informing her that Ms. Calleon would be scheduling an observation for the next week. The e-mail asked Mother to provide a current report card, progress reports on the IEP, and any other data that would be relevant to writing Student's annual IEP. This e-mail was sent to Mother's email address and copied to Ms. Calleon. On February 25,2001, Teri Lynn Kim, Student's teacher at Redemption Academy, sent Ms. Calleon an email stating that Ms. Yogi had informed her that Ms. Calleon would be scheduling a time for observation and asked Ms. Calleon to contact her regarding obtaining approval for this observation. Ms. Kim copied her e-mail to Mother to Mother's email address. On February 28, 2011, Mother sent Ms. Calleon an e-mail regarding scheduling the observation from Mother's email address, and asked her to please respond to this same address. On March 1, 2011, Ms. Calleon sent Ms. Kim an e-mail confirming the date and time of the classroom observation and requesting current data, reports and any other information on academic, behavior and social areas, and copied Mother at Mother's email address. Ms. Kim replied to Ms. Calleon's March 1, 2011 email, and offered to have a telephone conference after the observation period and requested a DOE standard observation form. Mother was copied on the email at Mother's email address. Ms. Calleon replied the same day to this email, again with a copy to Mother's email address. Mother sent an e-mail to Ms. Calleon on March 3, 2011 confirming that Ms. Kim would provide Ms. Calleon with a grade update and information about progress "re IEP." The email also stated that Ms. Calleon would be provided a copy of the "bx plan." Like the previous emails, Mother sent this e-mail from Mother's email address. [Id. at 6-7.]
On March 4, 2011, Ms. Calleon observed Student for approximately two hours in Student's classroom at Redemption Academy. On March 22, 2011, Ms. Calleon sent an e-mail to Ms. Kim to request Student's report cards and information about Ms. Kim's availability between April 5 and April 15, 2011.
Ms. Calleon also sent an e-mail to Mother on March 22, 2011 asking for a copy of the "bx plan" referred to in Mother's e-mail of March 3, 2011 because it was not provided to Ms. Calleon when she did her classroom observation. The e-mail also asked about Mother's availability during the first two weeks of April so that Ms. Calleon could schedule Student's annual IEP meeting. This e-mail was sent to Mother's email address. Ms. Calleon sent another e-mail to Mother at the same address on March 23, 2011 asking Mother to write a letter stating her desire for Student to opt out of certain testing for the 2010-2011 school year. [Id. at 7-8.]
On March 30, 2011, Ms. Calleon sent Mother a letter as an attachment to an e-mail about Student's IEP, noting that it due for review by April 21, 2011. The letter offered meeting times on April 12, 13, or 14, 2011. It asked Mother to propose alternatives dates and times before April 21 if those three dates were not available, and asked for a response by April 6.
April 12, 2011 was set as the meeting date if there was no response by April 6. The letter offered Mother the option of participating in the IEP meeting by telephone if she was not able to participate in person. The letter further stated that Redemption Academy and Pacific Autism Center would be notified of the three dates so they could be reserved and that both schools would be notified once a date was finalized. In addition, the letter requested updated assessment information, report cards, behavior support plans and relevant data because the information had not been provided despite two previous requests. The letter was sent by email to Mother's email address and was also sent by regular mail to Mother. Without receiving a response to her March 30, 2011 letter and e-mail, Ms. Calleon sent Mother another letter on April 1, 2011 that was identical to the March 30 letter, except that it changed the default date for the meeting to April 14 if the DOE did not hear from Mother by April 6, 2011. This letter was also sent by e-mail to Mother's email address and by regular mail. [Id. at 8.]
The DOE mailed Plaintiffs a Conference Announcement dated April 7, 2011 for a proposed conference on April 14, 2011 to review Student's IEP plan. Mother testified that she responded to this announcement by sending a text message during the noon hour on April 8, 2011 to the DOE stating that Parent #2 was leaving for the week and that the April 14, 2011 IEP meeting needed to be cancelled. No alternative dates were proposed.
Ms. Calleon phoned Mother back that day and left a voicemail message requesting availability for the week beginning April 18, 2011. Mother did not respond. [Id. at 9.]
On April 8, 2011, the DOE sent Mother a draft IEP for the period from April 15, 2011, through April 14, 2012. In addition to the voicemail message on April 8, 2011, the DOE e-mailed Mother at Mother's email address on April 11, 2011, asking if April 19 or April 20, 2011 would be good days for the IEP meeting. About two hours later on April 11, 2011, receiving no response from Mother, Ms. Calleon sent an e-mail to Mother stating that the April 1, 2011 letter had asked for a response by April 6 but that the DOE did not hear from Mother, and notified her that the IEP meeting would go forward on April 14, 2011, but that Mother could participate by telephone if she was unable to personally attend. If Mother was not able to personally attend, the e-mail stated that another meeting would be scheduled to review and revise the IEP. A copy of this e-mail was also sent by mail on April 13, 2011. [Id. at 10.]
At 10:28 a.m. on April 13, 2011, Mother sent a text message to Ms. Calleon stating that Parent #2 was traveling and that Mother had cancelled the proposed IEP meeting the previous week. On the morning of April 14, 2011, Ms. Calleon sent an e-mail to Mother's same e-mail address, acknowledging receipt of Mother's text message of the previous day about canceling the April 14 IEP meeting. The e-mail indicated that the IEP meeting was being held to meet the annual time line and that Ms. Calleon would schedule another meeting to revise the IEP with input from the entire team. She requested that Mother send her three dates, before May 6, 2011, that she would be available to meet. The DOE held Student's annual IEP meeting on April 14, 2011 and the only attendees were DOE personnel. [Id. at 11.]
On Apri1 25, 2011, the DOE wrote Parents a letter with enclosed copies of Prior Written Notices, the Apri1 14, 2011 IEP, a Transition Plan dated April 14, 2011, and a Parent Rights and Procedural Safeguards notice. The letter was signed by the Principal of Student's Former Home School, sent by certified mail on April 26, 2011, and signed for by Parent #2 on May 5, 2011. The Apri1 25 letter stated that the IEP meeting went forward on April 14 and that the DOE would like to meet with Parents to review the proposed program and consider their input. The letter asked for three dates that Parents were available to meet and review the DOE's proposed IEP. The letter also allowed for Parents to participate by telephone if they were unable to attend in person. On May 11, 2011, Parent #2 left the Principal a phone message, indicating that Parent #2 wanted to discuss the IEP.
The Principal asked Ms. Calleon to return Parent #2's telephone call, believing it was related to scheduling the meeting.
Ms. Calleon called Parent #2 back that day and left a message. Later on May 11, 2011, Parent #2 called Ms. Calleon back and requested that the Principal return her call because the Principal was the person whom Parent #2 had left the message for. The Principal called Parent #2 back later that day and Parent #2 told Principal that the preferred time for Parents to meet for an IEP was on Friday mornings after 9:00 a.m. [Id. at 12.]
On May 12, 2011, Ms. Calleon sent the other members of the IEP team an e-mail advising that Parents were requesting a meeting. Based upon the Parents' availability and the forthcoming end of the school year, the only day to schedule the meeting was Friday, May 27, 2011, at 9:30 a.m. On May 13, 2011, Principal left a phone message at Pacific Autism Center inviting a representative to the May 27 IEP meeting. On May 16, 2011, Ms. Calleon sent Redemption Academy a follow-up e-mail to one sent May 12, 2011, inviting a representative to attend the May 27 IEP meeting. On May 20, 2011, Ms. Calleon sent Parents a meeting notice for the May 27, 2011 IEP meeting by regular mail. On May 24, 2011, Ms. Calleon sent an e-mail to Mother at the same email address requesting confirmation that Mother had received the meeting notice for the May 27, 2011 meeting. On May 25, 2011, Principal called Parent #2 to ask if Parents were coming to the May 27 revision IEP. Parent #2 told her that they were not. Principal thereafter instructed Ms. Calleon to notify the rest of the IEP team that the meeting was cancelled. [Id. at 12-13.]
On June 4, 2011, Mother sent Ms. Calleon an e-mail in reply to Ms. Calleon's e-mail dated May 24, 2011 stating that "this is no longer my active email for quite some time" and informing Ms. Calleon of Mother's new e-mail address. [Id. at 11-12.] According to Mother, she informed the DOE that her e-mail address had changed at a meeting with a DOE autism specialist and Ms. Yogi on February 11, 2011, but that Ms. Calleon was not at this meeting. Mother did not send any DOE personnel any written notice, either by letter or e-mail, that her e-mail address had changed prior to June 4, 2011. [Id. at 4.]
The April 14, 2011 IEP provided Student with the same Extended School Year ("ESY") services as in her previous IEP. She was to receive services after a break of one day, and begin ESY services on the second day.
On June 14, 2011, Plaintiffs filed their RIH with the DOE. [ROA at 4-7.] The RIH asserts that Student's IEP dated April 14, 2011 denied Student a Free Appropriate Public Education ("FAPE"). The RIH sought the following:
1. Award reimbursement to Petitioners for expenses related to the evaluation, consultation and observations for Student in assessment of Students' needs by privately obtained professionals;
2. award reimbursement to Petitioners for any educational and related expenses incurred for [her] education and related expenses through the Pacific Autism Center and through support providers[.] [Id. at 6-7.]
The Hearings Officer convened the due process hearing on September 29, 2011, and the parties filed written closing arguments. [Decision at 4.]
The Hearings Officer framed the issues presented as whether the April 14, 2011 IEP resulted in a denial of FAPE because:
a. The IEP was conducted without a parent in attendance even though the parent timely informed the Respondent of her unavailability.
b. The IEP was insufficient because the DOE developed no Behavioral Support Plan for the offered placement.
c. The Extended School Year services were improperly constituted where they failed to consider Student's individual needs during breaks.
d. The offered "Transition Plan" is insufficient to support the Student's transfer from her current program into the offered program and placement, "and is not an element of the IEP offer." [Id. at 15-16 (footnotes omitted).]
A. Parental Participation at the April 14, 2011 Meeting
The Hearings Officer ruled that Plaintiffs failed to demonstrate that the April 14, 2011 IEP was improperly conducted without a parent in attendance resulting in a denial of FAPE. The Decision states as follows:
In the present case, the Hearings Officer concludes that the DOE made reasonable efforts to find a mutually convenient date for the IEP meeting. The DOE tried to accommodate Mother's desire to have Parent #2 attend the meeting as well as Mother. The DOE sent a draft IEP of great length on April 8, 2011 so that Mother and Parent #2 would be apprised in advance of what the DOE was thinking for this potentially lengthy and complicated IEP. As discussed more fully below, the DOE adequately communicated the proposed IEP meeting date to Mother, presented some alternative dates, and received no cooperation from Mother in scheduling the meeting. Mother never presented any alternative dates.
In addition, the DOE was faced with the statutory deadline of April 21, 2011 per the annual review requirement of 20 U.S.C. §1414(d)(4)(A) and 34 C.F.R. §300.324(b). This situation is basically the same as the one facing the school district in the [E.P. v. San Ramon Valley Unified School District, No. C05-01390 MJJ, 2007 WL 1795747 (N.D. Cal. June 21, 2007),] case. Holding the IEP meeting before the statutory deadline was not an instance of scheduling the meeting for the convenience of the DOE representatives' schedules.
Further, the DOE always recognized that the Apri1 14, 2011 IEP was not necessarily the final version of the IEP. There was ample time to revise that IEP before the start of the next school year, and the DOE promptly initiated steps to set up a revision IEP meeting where Parents would be in attendance and personally submit their concerns. Parents inexplicably failed to participate in the revision meeting set up to meet their schedule demands.
Petitioners rely on the portion of the Shapiro v. Paradise Valley Unified School District[, 317 F.3d 1072 (9th Cir. 2002),] opinion that states: "After-the-fact parental involvement is not enough." 317 F.3d at 1078. That statement was made, however, with reference to a factual context where there was no need for the IEP meeting to be held on the date chosen by the district other than the convenience of the district representatives' schedule, no acknowledgment by the district that the IEP prepared at the meeting without the parents was only "proposed," and no effort by the district to promptly schedule an IEP with the parents to go over the "proposed" IEP.
In E.P. v. San Ramon Valley Unified School District, supra, the district offered the parents another IEP meeting later in the school year (which was much later than in this case where the additional IEP meeting was offered well before the relevant school year started). The parents relied on the above statement from the Shapiro case, but the Court did not view that statement as a per se test. There, as here, the district did not present a completed IEP to the parents on a "take-it-or-leave-it" basis and offered a "safety net" of an additional IEP meeting to consider the parents' concerns. The statement from the Shapiro case relied upon by Petitioners herein must be viewed in the entire context of events. Here, as in the E.P. v. San Ramon Valley Unified School District case, the statement does not compel a decision by the Hearings Officer in favor of Petitioners. [Id. at 20-21.] The Hearings Officer also found that "Mother failed to reasonably cooperate in setting up a meeting date prior to the statutory deadline. To the contrary, her actions undermined the DOE's ability to set up that meeting." [Id. at 21.]
The Hearings Officer concluded that Plaintiffs failed to show that the April 14, 2011 IEP meeting was improperly conducted without a parent in attendance and resulted in a denial of FAPE. [Id. at 26.]
B. Behavioral Support Plan
Under the April 14, 2011 IEP, Student was to attend the Current Home School for the 2011-2012 school year, as she was moving from elementary school to intermediate school. The Hearings Officer found that it "would not have been ethical to prepare a functional behavior analysis ("FBA") and a [behavioral support plan ("BSP")] for the new Home School because Student had never been in the new Home School environment." [Id. at 15.]
As to whether the Student was denied FAPE because no BSP was in place at the time of the offer, the Hearings Officer concluded as follows:
Petitioners' request for impartial hearing alleged that the DOE's offer of FAPE was not appropriate because no behavioral support plan ("BSP") had been developed for Student at the time of the offer. Petitioners made no mention of this claim in either their Opening Brief or their Closing Brief.
The DOE had developed a sufficient plan for establishing Student's BSP upon Student starting at the new Home School, so that a BSP or equivalent thereof would cover Student at the offered placement.
Petitioners have not met their burden that the April 14, 2011 IEP was insufficient because of the ...