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Ds v. Department of Education

United States District Court, Ninth Circuit

November 14, 2013

D.S., by and through his mother, Clarenore S., Plaintiffs,
DEPARTMENT OF EDUCATION, State of Hawai'i, Defendant.


DERRICK K. WATSON, District Judge.


Before the Court is Plaintiffs David S. ("Student"), by and through his Parent, Clarenore S.'s (collectively, "Plaintiffs") appeal from the Administrative Hearings Officer's ("Hearings Officer") August 31, 2012 Findings of Fact, Conclusions of Law and Decision ("Decision"), pursuant to the Individuals with Disabilities Education Act of 2004 ("IDEA"), 20 U.S.C. § 1400 et seq. Also before the Court is Plaintiffs' Motion for Stay Put, pursuant to 20 U.S.C. § 1415(j). On July 19, 2013, the Court heard oral arguments on the appeal and the Motion for Stay Put. After careful consideration of the supporting and opposing memoranda, the administrative record, and the arguments of counsel, the August 31, 2012 Decision is REVERSED. Plaintiffs' Motion for Stay Put is GRANTED.


Student, a fifteen-year-old minor, was diagnosed with autism when he was five years old. Since that time, Student has received special education services. There is no dispute that Plaintiffs unilaterally placed Student at Loveland Academy ("Loveland"), a private facility, beginning in 2006. Student has continuously attended Loveland since 2006. The present appeal relates directly to Student's February 2, 2011 ("February IEP") and May 31, 2011 ("May IEP") individualized education programs ("IEP"). Petitioner's ("Pet.") Exs. 4, 2.

This is not the first appeal to this Court that seeks a review of an administrative hearings officer's decision related to an IEP for Student. The extensive factual history prior to this appeal can be found in the following two orders by Magistrate Judge Kurren in D.S. v. Haw. Dep't of Educ., Civ. No. 10-00053 BMK: 1) Order Affirming in Part, Reversing in Part, and Remanding the Administrative Hearings Officer's Decision (April 1, 2011) ("2011 Appeal Order"); and 2) Amended Order Granting Plaintiff's Motion for Stay Put (August 9, 2012) ("2012 Stay Put Order"). Only the facts directly pertinent to this appeal are briefly recounted here.

I. Behavior Assessments and IEPs

Student has many severe behavioral and mental health issues. Relevant here, Student developed newly sexualized behaviors in 2009 and 2010. Student's Intensive Instruction Services Coordinator ("IISC") at Loveland, Nichole Rowles, described the development of these behaviors:

In 2009 he started doing more sexualized behavior, but they really surfaced in 2010. In 2010 he had done things like grabbing women's breasts, kissing women, just randomly as he would walk by. Female skills trainers, that's what I mean by women.
He has punched. He's poured water on top of students, like over their heads. He's had violent tantrums. He has flashed his genitals. He has taken off all of his clothes in the bathroom while another person is entering.

Hearing Tr. Vol. I at 184:18-185:3.

As a result of these and other behaviors, beginning in May 2010, Parents requested that the Department of Education, State of Hawaii ("DOE") conduct three assessments of Student: (1) a Behavior Optometry Assessment; (2) a Neuropsychological Assessment; and (3) an Emotional Behavior Assessment ("EBA"). Decision at 12 ¶ 20. Parents temporarily withdrew the request for these assessments but renewed the request again in September 2010. Following a meeting on the proposed assessments, the DOE issued a Prior Written Notice ("PWN") on September 28, 2010, declining to conduct the Behavior Optometry Assessment and the Neuropsychological Assessment, but agreeing to conduct the EBA. In declining to conduct the Neuropsychological Assessment specifically, the DOE explained:

The DOE declines conducting a Neuropsychological Assessment because the DOE has all of the components of the neurological assessment (cognitive scores with processing scores), [and the] speech language assessment. The DOE is able to use this information to determine areas of strengths that they can incorporate in teaching and areas of weakness that would need to [be] supported when teaching. Based on the information the parties have up to this date the DOE is able to implement an offer of FAPE. A second reason the DOE declines the assessment is that there has been no recent traumatic events which would make the information available invalid. Therefore a neuropsychological assessment would not be appropriate at this time.

Respondent's ("Resp.") Ex. 20 (September 28, 2010 PWN) at 100. Ultimately, the EBA was also not conducted because Parents did not give their consent to the EBA in a timely fashion. Resp. Ex. 22 (February 18, 2011 PWN). Parents apparently did not consent because they were waiting for the results of a neuropsychological assessment, which they completed at their own expense when the DOE refused to conduct one. Hearing Tr. Vol. IV at 750:20-753:5.

On January 26, 2011, an IEP meeting for Student was held. Student's IISC, Ms. Rowles, attended that IEP meeting. At that meeting, she described to the IEP team the new sexual behaviors that Student had developed beginning in late 2009 and throughout 2010. Specifically, Ms. Rowles testified:

I told [the IEP team] that he has had newer behaviors, that he has groped women's breasts, he has shown body parts, he has - I think I also told them about the phone calls that he has made towards a female skills trainer, and he also had this obsession with one, to date a female skills trainer. So I told them about that.

Hearing Tr. Vol. I at 211:21-212:2; Decision at 16 ¶ 29. Ms. Matsuura, the DOE care coordinator for Student, admitted that Ms. Rowles conveyed information about these new behaviors to the IEP team at that meeting. Hearing Tr. Vol. IV at 741:17-742:2. Because it was not fully completed on January 26, the IEP meeting was reconvened and the IEP was completed on February 2, 2011.

The Present Levels of Educational Performance ("PLEPs") section of the February IEP explicitly relied on the behavioral assessments conducted by Loveland in October 2009. Pet. Ex. 4 at 00039. Because Student's new sexualized behaviors had not manifested at the time of these 2009 assessments, a parenthetical was included in the PLEPs for the February IEP: "(Loveland IISC added: Sometimes specific people [] trigger [Student.] It was clarified that they are usually adult females. This is a newer behavior.)" Id. However, the February IEP did not otherwise address the new sexualized behaviors.

In May 2011, another IEP meeting was held solely to address parent training needs. Decision at 18-19 ¶ 41; Pet. Ex. 42 (June 22, 2011 Letter) at 000365. There is no dispute, and the Hearings Officer found, that the May IEP is identical to the February IEP. Decision at 18-19 ¶ 41; Hearings Tr. Vol. IV at 749:18-20.

II. Settlements and Stay Put Payments

Through settlement agreements, the DOE paid for Student's attendance at Loveland for the 2006-2007 and 2007-2008 school years. As a result of the 2011 Appeal Order, the DOE was additionally ordered to pay for Student's attendance at Loveland for the 2008-09 and the 2009-2010 school years at a 30 percent reduced rate.

In the 2012 Stay Put Order, Judge Kurren ordered the DOE to make stay put payments through the conclusion of the remand proceedings in that case. As a result of that order, the DOE has paid Loveland for the period covering Student's attendance up until September 2012. Declaration of Maurolyn Gurtiza ("Gurtiza Decl.") ¶ 4 (stating that the DOE "has not paid for D.S.'s special education and related mental health services from September 2012, through the present"); see Declaration of Wade Okuma ("Okuma Decl.") ¶¶ 14-15.

III. Due Process Hearing and Appeal

On November 15, 2011, Plaintiffs sent to the DOE a request for an impartial due process hearing, asserting that Student was denied a free appropriate public education ("FAPE") through the February IEP and the May IEP. Pet. Ex. 1 (Due Process Request). The request states, in relevant part:

The DOE has not provided an appropriate offer of FAPE to the [Student]. Many of [Student's] needs revolve around his emotional/behavioral and psychological deficits. The DOE has failed to timely and properly evaluate and/or address his complex psychological or mental health needs, and denied Petitioners' request for a comprehensive psychological evaluation and/or a neuropsychological evaluation. [Student's] annual IEP of February 2, 2011 [w]as not conducted or concluded in a timely manner, and the IEPs of February 2, 2011 and May 22, 2011 do not provide any transfer plan for moving [Student] from Loveland Academy into an appropriate DOE classroom or environment. The IEPs do not adequately i[]dentify all of [Student's] strengths and needs, fails to provide ...

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