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A.D., By and Through His Parent L.D v. Department of Education

October 25, 2012

A.D., BY AND THROUGH HIS PARENT L.D., PLAINTIFF,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII, DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR STAY PUT

I. INTRODUCTION

On May 31, 2012, Plaintiff A.D., by and through his parent L.D. ("Plaintiff" or "A.D."), filed a Complaint under 20 U.S.C. § 1415(i)(2) of the Individuals with Disabilities Education Act ("IDEA"), seeking judicial review of two May 15, 2012 decisions of an administrative hearings officer. The first administrative decision denied Plaintiff's Motion for Stay Put, which sought an order that Plaintiff be allowed to remain at his current educational placement at Loveland Academy ("Loveland") pending his concurrent administrative Request for Due Process Hearing challenging the Defendant Department of Education, State of Hawaii's ("Defendant" or "D.O.E.") denial of his request for continued special education and related services after he reached age twenty. Administrative Record on Appeal ("AR") at 642. The second administrative decision denied Plaintiff's Motion for Summary Judgment and granted Defendant's Motion to Dismiss that underlying administrative challenge. Id. at 646. This Order concerns only the first administrative decision regarding "stay put" under 20 U.S.C. § 1415(j).*fn1

After filing this action, Plaintiff filed a Motion for Stay Put Order in this court. Doc. No. 9. Plaintiff has thus both (1) appealed the hearings officer's decision denying "stay put," and (2) filed a new request for "stay put" at the district court level. For the reasons set forth below, the Motion is GRANTED.

II. BACKGROUND

The court sets the stage by first explaining the legal context in which Plaintiff requested IDEA services beyond his twentieth birthday. The court then sets forth the basic details of Plaintiff's challenge and describes his corresponding Motion for Stay Put.

A. The Legal Context for Plaintiff's Eligibility Challenge

Under the IDEA, a state is eligible for federal assistance if it submits a plan to the Secretary of Education assuring that it has in effect "policies and procedures to ensure" that "[a] free appropriate public education [("FAPE")] is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive[.]" 20 U.S.C. § 1412(a)(1)(A). The IDEA thus allows for special education and related services until a student's twenty-second birthday. See, e.g., B.T. ex. rel. Mary T. v. Dep't of Educ., 637 F. Supp. 2d 856, 863 n.9 (D. Haw. 2009). That is, after turning twenty-two, a disabled student is no longer entitled to services under the IDEA.

"States, however, may impose different age restrictions, if those limitations are applied "broadly to general education students as well." R.P.-K. ex rel. C.K. v. Dep't of Educ., 2012 WL 1082250, at *6 (D. Haw. Mar. 30, 2012). In this regard, the IDEA provides:

The obligation to make a free appropriate public education available to all children with disabilities does not apply with respect to children --

(i) aged 3 through 5 and 18 through 21 in a State to the extent that its application to those children would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges.

20 U.S.C. § 1412(a)(1)(B). "Pursuant to this exception, a state may lower the age limit for FAPE eligibility to as little as eighteen, provided that it is done in a manner consistent with the State's 'provision of public education' to all children of that age." R.P.-K., 2012 WL 1082250, at *6. This exception "shall not apply . . . where a state does in fact provide or assure the provision of free public education to non-handicapped children" aged twenty to twenty-two. Doc. No. 9-1, Mot. for Stay Put at 4 (quoting S. Rep. No. 94-168, at 19 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1443).

Hawaii subsequently passed a provision lowering the age limit for public schools -- in 2010, the Hawaii Legislature passed Act 163, 2010 Haw. Sess.

L. ("Act 163"), now codified at Hawaii Revised Statutes ("HRS") § 302A-1134(c) (effective July 1, 2010), which provides:

No person who is twenty years of age or over on the first instructional day of the school year shall be eligible to attend a public school. If a person reaches twenty years of age after the first instructional day of the school year, the person shall be eligible to attend public school for the full school year.

Prior to passage of Act 163, "there was no law or practice in Hawaii to preclude students without disabilities from beginning a school year at age twenty, and therefore . . . Hawaii's [prior] age-out policy, standing alone, could not justify the denial of special education services." Aileen Y. v. Dep't of Educ., 2011 WL 2223659, at *5 (D. Haw. June 6, 2011) (citations omitted). That is, before Act 163, the prevailing view was that "because Hawaii schools provide education through 21 years old for general education students, it must provide a FAPE for [special education students through 21 years old] when the [Individual Educational Program ("IEP")] so recommends." B.T., 637 F. Supp. 2d at 866.

It was in this context that Plaintiff requested services under the IDEA up to his twenty-second birthday, as the court now explains.

B. Plaintiff's Administrative Action

Plaintiff, disabled within the meaning of the IDEA, was born in May of 1991. AR at 643. There is no dispute that he was qualified for, and entitled to, special education and related services, at least until he turned twenty in May of 2011. He was placed at Loveland at D.O.E. expense when he was seven years old, and he remains there today. Id.; Doc. No. 9-4, L.D. Decl. ¶ 7.

Prior to Plaintiff's twentieth birthday, Plaintiff's mother ("L.D.") attended an IEP meeting in May 2011 at his public home school to discuss post-secondary transition services. Doc. No. 9-4, L.D. Decl. ¶ 2. At that meeting, L.D. requested that Plaintiff be allowed to remain at Loveland (his "then-current educational placement") and continue to receive special education and related services after he turned twenty. Id. The home school's vice-principal denied the request. He relied on an interpretation of Act 163, and its specific limit of age twenty for eligibility for public school attendance. Id.

Thus, on May 27, 2011, the D.O.E. issued a formal Prior Written Notice of Department Action, indicating that, among other actions, "[A.D.] will continue to receive his education in a special education community based instruction class on a private school campus [but only] until the end of ESY summer school which will end on July 31, 2011." AR at 143. The reason given was: "[A.D.] will turn 20 [in May 2011] and will no longer be eligible to receive DOE services after summer ESY ending on 7/31/2011." Id.

On June 20, 2011 -- after he turned twenty, but before his IDEA services were to end -- Plaintiff challenged the denial by filing his administrative Request for Impartial Due Process Hearing. Plaintiff's position is that because the D.O.E. provides "public education" to non-disabled students beyond age twenty "by offering competency based (CB) diploma-equivalent or a General Education (GED) diploma-equivalent," the D.O.E. is therefore required to offer him special education and related services under the IDEA (20 U.S.C. § 1412(a)(1)(B)) until age twenty-two. AR at 3.

Meanwhile, after July 31, 2011, Plaintiff has remained at Loveland, and Loveland has continued to provide his special education and related services (but without being paid by the D.O.E. or by Plaintiff). Doc. No. 9-4, L.D. Decl. ¶ 7. The Motion for Stay Put essentially seeks payment for those services from August 1, 2011 to the present.

C. The Pending R.P.-K. Class Action

When Plaintiff filed his administrative request, the question whether Act 163 allows the D.O.E. to terminate eligibility for special education and related services under the IDEA prior to age twenty-two -- given the nature of the D.O.E.'s "diploma equivalent" services to non-disabled students after the age of twenty -- was being litigated in R.P.-K. ex rel. C.K. v. Department of Education, Civ. No. 10-00436 DAE-KSC ("The R.P.-K. Class Action"). The R.P.-K. Class Action had been filed about a year earlier, on July 27, 2010, in the U.S. District Court for the District of Hawaii before The Honorable David A. Ezra.

Three days after the R.P.-K. Class Action was filed, two of the named plaintiffs (R.P.-K. and R.T.D.) -- who were both twenty at the time, and who both faced impending termination of IDEA services -- filed a motion for temporary restraining order ("TRO") and preliminary injunction, seeking to prevent the D.O.E. from terminating their eligibility for IDEA services and to require it to continue to provide their special educational and related services until the conclusion of the R.P.-K. Class Action litigation. See Doc. No. 6-1 (Civ. No. 10- 00436 DAE-KSC). R.P.-K. and R.T.D. were both receiving services at public schools, and had also filed individual administrative challenges. See Doc. Nos. 6-17 & 22 (Civ. No. 10-00436 DAE-KSC). They withdrew their motion for TRO and preliminary injunction when the D.O.E. agreed to continue to provide IDEA services to them under the IDEA's "stay put" provision, pending completion of their administrative proceedings (including any appeals). See Doc. No. 10 (Civ. No. 10-00436 DAE-KSC). The D.O.E. agreed on July 31, 2010 as follows:

Because Plaintiffs R.P.-K. and R.T.D. have . . . both filed requests for impartial hearings with DCCA's administrative office on or about June 29, 2010 pursuant to the IDEA and Chapter 8-60 of the H.A.R., the DOE will agree to the continuation of services and educational placement for R.P.-K. and R.T.D. . . . [T]he DOE will comply with the stay-put requirements set forth in 34 C.F.R. Section 300.518(a). This provision of the IDEA allows a party to remain in their current educational placement during the pendency of any administrative or judicial proceeding regarding a due process hearing under Section 300.507, unless there is an agreement by the parties otherwise.

Doc. No. 10-1 (Civ. No. 10-00436 DAE-KSC).

On March 15, 2011, Judge Ezra certified the class in the R.P.-K. Class Action under Federal Rule of Civil Procedure 23(b)(2) as follows:

All individuals residing in the State of Hawaii who [are] over the age of 20 on or before the first day of the school year (or who will imminently be over the age of 20 on that date) but under the age of 22 who are entitled to receive special education and related services from Defendant the Hawaii Department of Education under the Individuals with Disabilities Education Act. R.P.-K. v. Dep't of Educ., 272 F.R.D. 541, 543 (D. Haw. 2011) (Order Granting in Part and Denying in Part Plaintiffs' Motion for Class Certification). In the present case, A.D. does not dispute that he is a member of that class. Indeed, in a subsequent motion for preliminary injunction in the R.P.-K. Class Action, A.D. was offered (among others) as a specific example of a class member whose IDEA eligibility was to be terminated based on Act 163. See Doc. No. 44-1, at 6-7 (Civ. No. 10-00436 DAE-KSC).*fn2 In May 2011 (as A.D. approached his twentieth birthday), about two months after certification of the class in the R.P.-K. Class Action, A.D. requested continued services from the D.O.E. As set forth above, the D.O.E. denied the request and Plaintiff filed his administrative due process request on June 20, 2011.

On July 12, 2011, and again on September 19, 2011, Judge Ezra denied without prejudice the class's motions for a preliminary injunction and for summary judgment. See R.P.-K. v. Dep't of Educ., 817 F. Supp. 2d 1182, 1200 (D. Haw. 2011). He determined that a trial was needed to make definitive conclusions regarding the nature of the D.O.E.'s "diploma equivalent services" that are available to those over age twenty. That is, factual questions regarding the nature of those services needed to be resolved before the court could decide whether the D.O.E. was violating the IDEA by ...


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