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S.C., By and Through Her Parents E.T. and R.C v. Department of Education

May 16, 2013

S.C., BY AND THROUGH HER PARENTS E.T. AND R.C., PLAINTIFFS,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAII, DEFENDANT.



The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge

ORDER AFFIRMING ADMINISTRATIVE HEARINGS OFFICER'S FINDINGS OF FACT & CONCLUSIONS OF LAW

The Court hereby AFFIRMS the Hearings Officer's decision dated August 21, 2012. Plaintiffs failed to show that the 2009 and 2010 IEPs did not offer S.C. a free and appropriate public education or were not properly implemented.

STATUTORY FRAMEWORK

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., was enacted by Congress to, among other things, "ensure that all children with disabilities have available to them a free appropriate public education [("FAPE")] that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A) & (B). The IDEA gives federal money to state and local education agencies to help them educate disabled children, on the condition that the state and local agencies implement the substantive and procedural requirements of the IDEA. See R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1121 (9th Cir. 2011).

Under the IDEA, state and local education agencies must identify children with disabilities and develop annual Individual Education Programs ("IEPs") for them. 20 U.S.C. § 1414. An IEP is a comprehensive, individualized document developed by a team of parents, teachers, and other school administrators, which details the child's present levels of academic achievement and goals, the criteria for measuring progress, and the services and accommodation that the school commits to providing. Van Duyn ex rel. Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 827 (9th Cir. 2007); see 20 U.S.C. § 1414(d)(1)(A).

The IDEA also provides "substantial procedural safeguards" to ensure that the child receives a FAPE. Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1054 (9th Cir. 2012). States must comply with both the procedural and the substantive requirements of the IDEA. K.D. v. Dep't of Ed., State of Haw., 665 F.3d 1110, 1114 (9th Cir. 2011). When a parent disagrees with the process or content of an IEP, the parent may challenge that IEP by demanding an administrative due process hearing. See 20 U.S.C. § 1415(b)(6), (f). A parent may also enroll the child in a private program, and, upon establishing that the public school district failed to provide a FAPE, may seek reimbursement. See id. § 1412(a)(10)(C)(ii).

FACTUAL & PROCEDURAL BACKGROUND

In this case, S.C., by and through her parents (together "Plaintiffs") challenge two IEPs created for S.C. by the Hawaii Department of Education ("DOE").

S.C. is a seven-year-old girl with severe developmental delays. (See, e.g., Record on Appeal ("ROA") Ex. 1 at 4.) The parties dispute whether S.C. has an autism spectrum disorder. (See, e.g., Evidentiary Hearing Transcript ("Tr.") at 6:6-8:9.) She also has visual problems and hypotonia (muscle weakness). (See, e.g., ROA Ex. 1 at 4.)

In June 2008, S.C. was made eligible for special education due to her developmental delays. (Tr. at 16:12-21.) The DOE performed numerous assessments and observations of S.C. at that time, including reports by an occupational therapist, a psychologist, and a physical therapist. (See DOE Exs. 34-39.) The DOE developed an IEP that is not at issue here for S.C.'s 2008-2009 school year, and she began attending preschool at her home school, Blanche Pope Elementary School, in the "fully self-contained" special education class. (Tr. at 388:19-25.) S.C.'s special education preschool teacher, Megan Clark, was S.C.'s teacher for two and a half years, until S.C.'s parents removed S.C. from Pope Elementary in December 2010. (Id. at 15:9-16, 391:6-10.) Ms. Clark testified that she provided approximately 85% of S.C.'s instruction during her time at Pope Elementary. (Id. at 92:13-93:1.)

At some point during S.C.'s time at Pope Elementary, Ms. Clark filled out a questionnaire designed to help her create a Behavioral Support Plan for S.C. (Id. at 78:1-11, 18-25.) In response to the prompt "Please list existing and any past diagnoses, medical or psychiatric," Ms. Clark wrote: "Seizures. DD [developmentally delayed]. MR [mentally retarded]." (Pl. Ex. 42 at 932.) Ms. Clark later testified that at the time she filled out the questionnaire, she considered S.C. to be mentally retarded.*fn1 (Tr. at 77:2-8.) She also testified, however, that there was no significant difference between programming for children who are developmentally delayed and those who are mentally retarded. (Id. at 77:12-17.)

I. Drafting & Implementation of the 2009 IEP The first IEP challenged here was issued on June 2, 2009. (See DOE Ex. 15 ("2009 IEP").) The 2009 IEP contained sections drafted by the various specialist service providers who had assessed S.C. and had seen her throughout her first school year. (See Tr. at 25:22-32:7.) Ms. Clark also drafted parts of the IEP and created the first full draft of the document. (Id. at 84:14-25.) S.C.'s parents attended the IEP meetings and participated in developing the IEP. (Id. at 393:6-19.)

They reviewed the descriptions of S.C.'s present levels of educational performance, goals, and services, and gave input. (Id. at 448:22-449:18.) Ms. Clark testified that at that time, the IEP team had a "very strong relationship" with S.C.'s parents. (Id. at 33:5-13.)

Ms. Clark testified extensively about the approaches she used with S.C. during the 2009-2010 school year. (See generally id. at 40:1-46:6.) Ms. Clark used Applied Behavioral Analysis ("ABA") methodologies in her classroom. (See id. at 44:12-45:16, 92:3-12.) She also used Verbal Behavior ("VB") methodologies. (Id. at 11-88:9.)

S.C.'s mother, E.T., met with Ms. Clark quarterly and received progress reports from her. (Id. at 394:13-17; see id. at 391:11-19.) She also received a daily communication log from Ms. Clark, and the service providers logged their work with S.C. (Id. at 25:13-21, 426:24-427:3, 450:10-451:7.) E.T. visited S.C.'s classroom at least once a quarter. (Id. at 453:15-21.)

Ms. Clark testified that as the school year passed, she looked at the daily data collected about S.C. and adjusted her instruction accordingly. (Id. at 45:17-46:6.) Ms. Clark testified that she believed she had fully implemented the goals and objectives of the 2009 IEP. (Id. at 48:9-12.) She testified that S.C. had progressed in focus and participation, was able to walk in line with her classmates independently, to rote count to three, and to explore her environment and interact with other children more effectively. (Id. at 55:14-25.) Ms. Clark also testified that S.C. had made significant progress in language skills over the year. (Id. at 66:16-67:8.) In sum, she testified that S.C. had "thrived" in her classroom. (Id. at 53:1-3.)

II. Drafting of the 2010 IEP

In spring 2010, S.C.'s IEP team decided to have S.C. reevaluated to prepare for her possible transition to kindergarten. (Id. at 48:14-24.) The DOE performed numerous assessments and observations of S.C., including reports from a pediatric ophthalmologist, a speech/language therapist, an audiological report, and an assessment from Ms. Clark. (See DOE Exs. 46-55.)

At a spring 2010 meeting, E.T. saw S.C.'s results on the Assessment of Basic Language and Learning Skills ("ABLLS"), an educational tool designed to measure basic linguistic and functional skills. (Tr. at 399:11-400:11; see Pl. Ex. 23.) E.T. felt that the ABLLS showed little progress. (Tr. at 400:25-401:7.) She spoke to an educational consultant who referred her to Ana King (id. at 402:2-10), a board-certified assistant behavioral analyst (id. at 471:23-472:8). Ms. King owns her own company providing services to children with autism spectrum disorders, ADHD, and other issues. (Id. at 529:19-530:9.) She employs approximately seven skills trainers. (Id.)

In April 2010, a DOE psychologist, Susan Massey, assessed S.C. and issued an "Emotional/Behavioral Assessment" dated April 27, 2010. (DOE Ex. 52). At the end of the lengthy report, Ms. Massey summarized that S.C.'s level of functioning "should be considered consistent with a significant level of mental retardation" and that her difficulty in focusing her attention was "most likely primarily due to mental retardation." (Id. at 394.) Dr. Abby Royston, another DOE psychologist who was involved in drafting the report, testified at the evidentiary hearing that S.C. was at the time "functionally within the range" of mental retardation, but that with so young a child "you're not making a statement that this is the child's cognitive development and . . . this is where it's going to stay." (Tr. at 925:10-23; see id. at 947:12-24 ("[W]hat it was talking about was current function, which at four years old [is] simply a much more reasonable approach . . . because this child is not done developing.").)

S.C. had never been diagnosed with mental retardation. (Id. at 406:22-407:2.) Understandably, E.T. was "shocked" and upset by Ms. Massey's report. (Id. at 407:8-12, 408:22-410:1.)

E.T. testified that until she saw that report, she had not known how severe S.C.'s problems in school were. (Id. at 427:10-428:2.)

Ms. Massey also included in her report the results of autism testing performed by Ms. Massey and Dr. Royston. (See DOE Ex. 52 at 382.) The two psychologists found that S.C. did not meet the criteria to be diagnosed with an autism spectrum disorder. (Id. at 390.) Dr. Royston testified at the evidentiary hearing that although S.C. was not within the autism spectrum, she was close, and that Dr. Royston and Ms. Massey had "seriously considered and struggled with" the question of whether S.C. had an autism spectrum disorder. (Tr. at 917:2-25.) S.C.'s generally very low level of functioning made the tests difficult to interpret; Dr. Royston explained that at the time of the assessment, S.C. was functioning overall at a low level, and her social skills were not clearly lower than her overall level of functioning. (Id. at 923:3-20.)

The DOE did not change S.C.'s eligibility criterion as a result of Ms. Massey's report; S.C. remained eligible for special education in the category ...


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