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A.G. v. State, Department of Education

United States District Court, D. Hawaii

June 19, 2015

A.G., individually and on behalf of her minor child, M.G., Plaintiffs-Appellants,
STATE OF HAWAII, DEPARTMENT OF EDUCATION and KATHRYN MATAYOSHI, in her official capacity as Superintendent of the Hawaii Public Schools, Defendants-Appellees.


DERRICK K. WATSON, District Judge.

This appeal concerns the administrative hearings officer's ("AHO") determination of M.G. ("Student") and A.G.'s ("Parent") request for due process following the issuance of Student's October 29, 2013 Individualized Education Program ("IEP") for the 2013-14 school year. Because Plaintiffs have not shown by a preponderance of the evidence that the AHO's April 17, 2014 decision should be reversed, the Court affirms that decision.


During the relevant time period, Student was 14 years old, attending Maui High School ("MHS"), and was eligible for special education services under the category of intellectual disability. Prior to attending MHS ("Home School") in August 2013, Student attended Lokelani Intermediate School ("Former Home School"), and received special education services under the category of specific learning disability. Plaintiffs did not challenge Student's May 1, 2013 IEP, which was the last one developed by his Former Home School. Decision at 4-5.[1]

The meeting to develop Student's May 1, 2013 IEP addressed Student's transition from intermediate to high school. At that meeting, the IEP team discussed with Student's parents, Student's placement in the high school workplace readiness program, and explained the difference between that certificate program and the diploma programs at the Home School. Decision at 5-6. The workplace readiness program is a certificate track program solely for disabled students; participants do not receive a diploma and there is no physical education ("PE") requirement. Decision at 7-8. Pursuant to the May 1, 2013 IEP, Student was to be placed in special education classes for all academic subjects at the Home School because of his below-grade level abilities in nearly all areas. The May 1, 2013 IEP set out Student's placement with his non-disabled peers for recess, lunch, lunch recess, school-wide assemblies, and other school-sponsored events. Decision at 5-6.

Parent requested that Student be re-evaluated in July 2013. The Home School scheduled an evaluation conference and IEP meeting for August 13, 2013, which Parent attended. The IEP resulting from this August 13, 2013 meeting included the same placement in the Home School's workplace readiness program, and explained that those who participate in this self-contained certificate program do not participate in the general education classroom curriculum. Decision at 7. School Psychologist Jared Kono attended the August meeting and prepared a Psychoeducational Evaluation, dated September 11, 2013. Kono concluded that Student should be eligible for services under the intellectual disability category, due to his below-average cognitive ability in conjunction with adaptive skills. Both of Student's parents attended an October 24, 2013 conference to discuss the evaluation and determine Student's eligibility category. Student's parents indicated that they needed more time to review the evaluation, and a follow-up conference convened on October 29, 2013. At that meeting, parents were provided with a draft IEP prepared by John Van Plantinga, the Home School Special Education Teacher. Decision at 8-9.

The AHO characterized the October 29, 2013 draft IEP as a "working document that the IEP team would discuss to see if it needed to be changed, altered, expanded, or contracted before it becomes the final working document." Decision at 9. At the October 29, 2013 meeting, the draft IEP was read aloud in its entirety by the teachers responsible for drafting each section. Decision at 9. Based upon parental feedback at that meeting, the IEP team decided to provide formal progress notes to Parent in the speech-language area. At the October 29, 2013 meeting, speech language objectives were agreed upon and incorporated into the final IEP. Decision at 9-10.

The October 29, 2013 IEP meeting included specific discussion of Student's placement in the workplace readiness program in response to parental concerns that Student be placed with non-disabled peers for part of the day, and their desire that Student go to college. The IEP team explained why it felt the workplace readiness program was appropriate given Student's current evaluation. Decision at 10. The record does not reflect any specific discussion of Student's participation in PE with non-disabled peers at this meeting. Decision at 11.

The October 2013 meeting also included specific discussion of Student's eligibility for Extended School Year services ("ESY") in response to parental concerns and desire that Student receive ESY. The IEP team explained that Student had not shown regression in speech and language during school breaks or otherwise demonstrated a need for ESY. Decision at 10.

Following the October 2013 IEP meeting, the Special Education Teacher emailed Parent to determine whether the most recently developed IEP should be labeled a "revision" IEP, valid until the annual renewal date of May 1, 2013, or labeled an "annual" IEP, meaning that the next scheduled IEP meeting would be in October 2014. The teacher indicated that the IEP would be considered a "revision" IEP if he did not hear back that day. Parent did not respond until November 15, 2013, at which point she indicated that the IEP should be considered "annual." Decision at 11-12.

Student's final October 29, 2013 IEP included placement in the workplace readiness program, and stated that Student did not meet the standard for ESY services. Decision at 12. During the Home School's winter break in December 2013, Plaintiffs retained a private tutor who worked with Student four days a week for two weeks. Decision at 12.

In their Request for Due Process Hearing below, Plaintiffs alleged that the October 2013 IEP was flawed because:

1. Student was improperly denied extended school year services.
2. Student was denied speech/language services that appropriately addressed his needs.
3 Student was denied supplementary [aids] and services to support him in a general education setting.
4. The [Department of Education ("DOE")] failed to consider the least restrictive environment for implementation of Student's program when his placement was predetermined before the completion of the development of that program and when the placement failed to consider the appropriate factors.
5. Student's least restrictive environment should have included physical education and non-academic classes with non-disabled peers.

Decision at 13.

The AHO held a due process hearing on February 24 and 25, 2014, and issued his decision on April 17, 2014. The decision concluded that Plaintiffs failed to meet their burden to establish that the DOE denied Student a free appropriate public education ("FAPE") and dismissed their complaint. ...

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