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Thomas W., Individually and On Behalf of v. State of Hawaii

December 19, 2012

THOMAS W., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, T.W., PLAINTIFF,
v.
STATE OF HAWAII,
DEPARTMENT OF EDUCATION, AND KATHRYN MATAYOSHI, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF HAWAII PUBLIC SCHOOLS, DEFENDANTS.



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

ORDER REMANDING ACTION TO SEEK CLARIFICATION OF ADMINISTRATIVE HEARINGS OFFICER HAUNANI H. ALM'S AUGUST 15, 2011 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION

ATTACHMENT A

I. INTRODUCTION

In this action brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(2), Plaintiff Thomas W., on behalf of his son, T.W. ("T.W." or "Student") (collectively, "Thomas W."), challenges in part an April 24, 2012 Administrative Hearings Officer's ("AHO") Findings of Fact, Conclusions of Law, and Decision (the "April 2012 Decision"). The April 2012 Decision found that Defendant State of Hawaii, Department of Education ("DOE") denied T.W. a Free Appropriate Public Education ("FAPE") by failing to have a valid Individualized Education Plan ("IEP") in place at the start of the 2011-2012 school year, and failing to have an IEP meeting prior to the start of the 2011-2012 school year to discuss T.W.'s placement. As for a remedy, the April 2012 Decision determined that Thomas W. was entitled to reimbursement for the portion of T.W.'s private school tuition at Autism Management Services ("AMS") that is directed to services from the Center for Autism and Related Disorders ("CARD") through November 28, 2011, the date of T.W.'s next IEP. Thomas W. challenges the remedy only, arguing that he is entitled to reimbursement for T.W.'s AMS tuition in its entirety, and that reimbursement should not be limited up until the November 28, 2011 IEP.

Thomas W. further argues that AMS is T.W.'s current educational placement for purposes of stay put in light of an earlier administrative challenge that resulted in an August 15, 2011 Findings of Fact, Conclusions of Law, and Decision (the "August 2011 Decision") by AHO Haunani H. Alm in DOE-SY 1011-109 determining that T.W. was denied a FAPE in 2010-2011 and ordering reimbursement for AMS on the basis that it is an appropriate program for T.W.

At the December 3, 2012 hearing, the parties did not dispute that if the court determines that T.W. is entitled to stay put at AMS, then the substantive issues raised on appeal become moot. The court therefore defers addressing the substantive issues raised on appeal until stay put is resolved. Based on the following, the court REMANDS the action to seek clarification from AHO Alm as to whether she determined that AMS is T.W.'s current educational placement for purposes of stay put.

II. BACKGROUND

T.W. is a six-year-old boy who has been diagnosed with an autism spectrum disorder and is eligible to receive special education and related services. AR Ex. 23, Apr. 2012 Dec. ¶ 1.*fn1 T.W. attended DOE schools up until Fall 2010, when Thomas W. unilaterally placed T.W. in a private school. Id. ¶ 2. Starting in April 2011, Thomas W. placed T.W. in his current private school, AMS, which utilizes CARD services. Id.

A. The Prior Decision

The basis for Thomas W.'s assertion that AMS is T.W.'s current educational placement is an administrative decision prior to the April 2012 Decision-- an August 2011 Decision. See Pet. Ex. 8, Aug. 2011 Dec. The August 2011 Decision required the DOE to pay for T.W.'s "education and related expenses at AMS" as a remedy for the DOE's denial of a FAPE. Id. at 17.

The basis of the August 2011 Decision is as follows: While T.W. was attending his first private school, Thomas W. contacted the DOE to see what it could offer T.W. Id. ¶ 13. In response to this request, Thomas W. was provided incorrect information that T.W. needed to be enrolled in a DOE school before an IEP meeting could take place. Id. ¶¶ 17-18. This misinformation ultimately led to a March 21, 2011 due process request and the August 2011 Decision finding that no IEP was in place for several months in 2010 and 2011, which resulted in a loss of educational opportunity for T.W. and denied Thomas W. the opportunity to participate in the IEP formulation process. Id. at 15-16.

Although T.W. began attending AMS in April 2011 after the filing of Thomas W.'s due process request, the August 2011 Decision outlined T.W.'s program through CARD and AMS in detail, and detailed T.W.'s progress in the program. Id. ¶¶ 43-55. The August 2011 Decision further noted that the DOE Autism Consultant Teacher had conducted a records review of T.W.'s program with CARD and "testified that on paper, Student's CARD program looked good." Id. ¶ 57.

Given T.W's placement and progress at AMS, the August 2011 Decision ordered reimbursement for AMS as follows:

Reimbursement

In Burlington, MA v. Department of Education, et al., 105 S. Ct. 1996 (U.S. 1985), the U.S. Supreme Court held that parents may be awarded reimbursement for costs associated with the unilateral placement if it is found that:

1. The school district's IEP is not appropriate; and

2. The parents' placement is appropriate. See also, Seattle School District v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).

With regard to Petitioners' requested remedy, the Hearings Officer finds that:

(1) Student was eligible for special education and related services from the DOE after he was withdrawn from the DOE on September 8, 2010. Father's intentions to seek an IEP meeting for Student in Fall 2010 were evident to the SPED Pre-School Teacher, Student's IEP Care Coordinator. Father's requests to conduct an IEP for Student were thwarted when Father received incorrect information from the SPED Pre-School Teacher regarding conducting an IEP meeting for Student. Therefore, Student was denied a FAPE; and

(2) AMS is an appropriate program for Student. The Hearings Officer finds by a preponderance of the credible evidence that Student's AMS program is appropriate for his individual needs and is being implemented with fidelity.

Id. at 16-17. The August 2011 Decision therefore ordered that the DOE "shall reimburse Petitioners and/or in the alternative, pay for Student's education ...


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