The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER
This court affirms the Findings of Fact, Conclusions of Law and
Decision ("Decision") issued by Haunani H. Alm, the Administrative
Hearings Officer ("AHO"), on December 30, 2011. That decision examined
whether Defendants Department of Education for the State of Hawaii and
Superintendent Kathryn Matayoshi (collectively, the "DOE") had denied
Dale W. the Free and Appropriate Public Education ("FAPE") required by
the Individuals with Disabilities Education Act ("IDEA").*fn1
The AHO correctly determined that the DOE had not denied a
"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).
According to the IDEA, a FAPE consists of: special education and services that-(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the school standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
20 U.S.C. § 1401(9). 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. Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982) (citing 20 U.S.C. § 1401(18)). The IEP, which is prepared at a meeting between 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). A school district must have an IEP in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a). "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 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 on a parent's opportunity to participate in the IEP process. Id.
When a public school fails to provide a FAPE, and a parent establishes that placement at a private school is appropriate, the IDEA authorizes reimbursement to the parent. See 20 U.S.C. § 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep't of Ed. of Mass., 471 U.S. 359, 370 (1985). In addition, the IDEA includes a "stay put" provision that permits a child to stay in the child's current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint notice. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a), (d). A plaintiff may seek a "stay put" order in the district court even if "stay put" issues were not litigated in administrative proceedings. See N.D. v. Haw. Dep't of Educ., 600 F.3d 1104, 1110-11 (9th Cir. 2010).
It is undisputed that Dale, 6 years old as of this date and autistic, is entitled to receive special education services under the IDEA. His first IEP was developed on July 8, 2010, for a pre-kindergarten program during the 2010-11 school year at a DOE public school. Dale's mother, Jill W., participated in that development. See Record on Appeal ("ROA") at 42. Dale's IEP was revised repeatedly. Meetings relevant to the present appeal were held on July 20, 2010, August 2, 2010, September 28, 2010, November 16, 2010, December 6, 2010, April 21, 2011, May 11, 2011, and July 8, 2011. See ROA 60, 78, 95, 114, 149, 164, 183.
Apparently not satisfied with the results of the meetings, Jill W., before the start of the 2011-12 school year, enrolled Dale at the Pacific Autism Center, a private institution. He began there in June 2011. Test. of Jill W., Transcript of Aug. 29, 2011, at 94; Test. of Christi Reed, clinical ...