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Dep't of Educ. v. S.C.

United States District Court, D. Hawai'i

March 28, 2013

S.C., by and through his Father, DOUG C., Defendants

For Department of Education, State of Hawai'i, Plaintiff, Counter Defendant: Holly T. Shikada, LEAD ATTORNEY, Department of the Attorney General, Education Division, Honolulu, HI; Michelle M.L. Puu, LEAD ATTORNEY, Dept. of the Attorney General - State of Hawaii, Education Division, Honolulu, HI.

For S. C., by and through his father, Doug C., next friend Doug C., Defendant: Keith H.S. Peck, Law Office of Keith H.S. Peck, Honolulu, HI.

For S. C., by and through his father, Doug C., Counter Claimant: Keith H.S. Peck, Law Office of Keith H.S. Peck, Honolulu, HI.

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Leslie E. Kobayashi, United States District Judge.

Before the Court is Plaintiff Department of Education, State of Hawaii's (" DOE" or " Plaintiff" ) appeal from the Administrative Hearings Officer's (" Hearings Officer" ) July 23, 2012 Findings of Fact, Conclusions of Law and Decision (" Decision" [1]), pursuant to the Individuals with Disabilities

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Education Act of 2004 (" IDEA" ), 20 U.S.C. § 1400 et seq. The DOE filed its opening brief on January 7, 2013. Defendants S.C. (" Student" ) by and through his father, Doug C. (" Parent" ), filed their answering brief on February 7, 2013. The DOE filed its reply brief on February 14, 2013. This appeal came on for hearing on March 4, 2013. Appearing on behalf of Plaintiff was Michelle Puu, Esq., and appearing on behalf of Defendants was Keith Peck, Esq. After careful consideration of the supporting and opposing memoranda, and the arguments of counsel, the July 23, 2012 Decision is HEREBY AFFIRMED IN PART AND REVERSED IN PART. The Decision is AFFIRMED with respect to the finding of a denial of a Free Appropriate Education (" FAPE" ), and REVERSED with respect to the award of full reimbursement for Student's private placement from the period from November 4, 2011 to November 4, 2012.

I. Factual and Administrative Background

Student is eighteen years old and a student at Horizons Academy (" Horizons" ), a private school on Maui. Student is eligible for special education and related services under the IDEA in the category of autism. Student's home school is Maui High School (" MHS" ). At the time in question, Student was reading at a 3rd to 6th grade level, but could do some high school level math, and attended a pre-algebra class at Maui Community College (" MCC" ) in the fall of 2011. [Decision at 3-5.]

The DOE developed Student's November 4, 2011 Individualized Education Program (" IEP" ) at meetings on October 28, 2011 and November 4, 2011. The IEP offered Student placement as follows:

(Student) will not participate with non-disabled peers or receive his education with the general education population. (Student) will participate with his non-disabled peers in activities of his own choosing including morning recess, lunch, lunch recess, school assemblies, and other extra-curricular activities of his own choosing and interest.

[Id. at 5.] Under the IEP, Student would receive educational and related services at Maui High School's Workplace Readiness Program, in a self-contained classroom. The Workplace Readiness Program is:

for juniors, seniors, and continuing education students (ages 18-20) who are on a certificate of completion (not a diploma) track. The Workplace Readiness Program attempts to get students as life ready as possible, working on daily living and employment skills such as laundering, personal hygiene, budgeting, self-advocacy, and safety skills.

[Id. at 3.] At the IEP meetings, Parent told the IEP team that he wanted Student to remain at Horizons, but did not voice any specific concerns with the content of the IEP. Parent did not ask that Student be placed in a general education setting at the IEP meetings. [Id. at 4-7.]

On January 9, 2012, Defendants filed their Request for Impartial Hearing (" RIH" ) with the DOE. [ROA at 4-7.] The RIH asserts that the November 4, 2011 IEP denied Student a FAPE because:

o The designation of Student's placement is not the least restrictive environment (" LRE" ) for Student;
o The designation of Student's placement was not individualized for Student; and
o The designation of Student's placement is insufficient to determine its meaning.

[Id. at 8.]

The Hearings Officer convened the due process hearing on June 13, 2012, and the

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parties filed written closing arguments. [Id. at 1.]

The Hearings Officer framed the issues as whether Student was placed in the least restrictive environment; whether his placement was individualized and sufficiently defined; and the appropriateness of Plaintiff's placement at Horizons. With respect to LRE, the Hearings Officer found that the DOE did not consider placing Student in a general education class for math or whether Student's goals and objections could be implemented partly in general education classes. [Id. at 10-11.]

The Hearings Officer concluded that, with supports, " Student would obtain educational benefits from a math regular education classroom. Further, Student has socialization needs. The non-academic benefits of interaction with non-disable peers in a regular education classroom would be to provide Student with role models and socialization opportunities with general education peers." [Id. at 11.] The Hearings Officer concluded that the DOE failed to place Student in the least restrictive environment. [Id. at 12.]

The Hearings Officer also concluded that the IEP's placement was not individualized to his needs. He decided that the term " to participate with his non-disabled peers in activities of his choosing" was insufficient to describe the socialization opportunities with non-disabled peers that Student would have. [Id. at 15.] He also held that Horizons was an appropriate placement for Student, and based on the DOE's denial of FAPE, awarded Defendants the cost of reimbursement for education and related services for November 4, 2011 through November 4, 2012. [Id. at 16.] The DOE appealed the Decision on August 22, 2012. The DOE also filed a Motion for Reconsideration on July 31, 2012, which the Hearings Officer denied on September 6, 2012.

II. Plaintiff's Opening Brief

The DOE urges the Court to reverse the Hearings Officer's Decision that it denied Student a FAPE on the grounds that it lacks evidentiary support and contradicts the same Hearings Officer's previous decision involving the same parties. It characterizes Parent's participation during the IEP process as " withholding his complaints with the [offer of FAPE] until he testifies in the Administrative Hearing. This tactic thwarts the DOE's ability to address Parent's concerns short of a Due Process Hearing." [Opening Br. at 2.]

According to the DOE, this same Hearings Officer found for the DOE with respect to Student's November 2010 IEP in a June 14, 2011 decision, which contained the exact same placement language that the Hearings Officer found problematic in the instant case. That previous June 14, 2011 decision was affirmed on appeal to this district court. The DOE states that the earlier decision terminated Student's Stay Put status at Horizons on December 12, 2011, and that Student's continued placement thereafter was unilaterally determined by Parent. [Id. at 4, 6 n.1 (citing ROA Exh. 13 (10/10 IEP), and Exh. 16 (6/14/11 Decision); Doug C. v. Dep't of Educ., Civil No. 11-00441 KSC (D. Hawai`i 2012)).]

Here, the DOE argues that the Hearings Officer erred when he made the following factual findings and conclusions because: (1) Student's IEP team was not perplexed as to whether Student belonged on a Diploma or Certificate track; and (2) Student demonstrated a clear ability to make choices as to which activities Student would participate in with non-disabled peers. It also argues that Student's IEP placement language was legally sufficient ...

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