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J.M. v. Department of Education

United States District Court, D. Hawaii

December 1, 2016

J.M., by and through his Mother, MARIA MANDEVILLE, Plaintiff,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAI`I, and KATHRYN MATAYOSHI, superintendent of the Hawaii Public Schools, Defendants.

          ORDER AFFIRMING THE HEARINGS OFFICER'S SEPTEMBER 9, 2015 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION; AND GRANTING PLAINTIFFS' REQUEST FOR STAY-PUT RELIEF

          Leslie E. Kobayashi United States District Judge

         On October 6, 2015, Plaintiffs J.M. (“Student”), by and through his Mother, Maria M. (“Mother, ” collectively “Plaintiffs” or “Petitioners”), filed an appeal of the Administrative Hearings Officer's (“Hearings Officer”) September 9, 2015 Findings of Fact, Conclusions of Law and Decision (“2015 Decision”).[1] [Complaint (dkt. no. 1).] Plaintiffs filed their First Amended Complaint on December 22, 2015. [Dkt. no. 11.] Plaintiffs filed their Opening Brief on July 25, 2016. [Dkt. no. 35.] Defendants Department of Education, State of Hawai`i and Kathryn Matayoshi, Superintendent of the Hawai`i Public Schools (collectively, “Defendants, ” “the DOE” or “Respondents”), filed their Answering Brief on August 26, 2016, and Plaintiffs filed their Reply Brief on September 12, 2016. [Dkt. nos. 39, 41.] The Court heard oral argument in this matter on October 11, 2016. After careful consideration of the briefs, record, arguments of counsel, and relevant legal authority, this Court HEREBY AFFIRMS the 2015 Decision, but GRANTS Plaintiffs' request for stay-put relief pursuant to 20 U.S.C. § 1415(j).

         BACKGROUND

         Student was born in 2003, and he is eligible for special education services under the category of Autism Spectrum Disorder (“ASD”). [2015 Decision at 3.] The Hearings Officer found that “Student has sensory issues and social concerns representative of a child on the Autism Spectrum that require accommodations and specially designed instruction in social skills.” [Id.] Student attended his Home School from kindergarten. [Id. at 3.] The Hearings Officer found that, at the Home School, “Student was bullied by other students on several occasions even though he had counseling and a one-to-one (1:1) aide with him at all times.” [Id.] In March 2013, Mother unilaterally removed Student from the Home School, and he began attending an autism center (“Private School”). [Id.]

         An October 24, 2014 Findings of Fact, Conclusions of Law, and Decision (“2014 Decision”)[2] found that Student's November 7, 2013 Individualized Education Program (“11/7/13 IEP”) denied him a free appropriate public education (“FAPE”) because “Student was the victim of bullying at the Home School and his learning opportunities were substantially restricted.” [2015 Decision at 3.] The Hearings Officer in the 2014 Decision found that Student's placement at the Private School was appropriate and awarded Plaintiffs reimbursement. [Id.]

         On November 24, 2014, the Home School held an IEP team meeting for Student and formulated an IEP (“11/24/14 IEP”). [Id. at 4; AR, Respondents' Exhs. at 11-26 (11/24/14 IEP).] The IEP team reviewed: the 11/7/13 IEP; the Home School special education teacher's (“SPED Teacher”) observations of Student at the Private School on November 5, 2014; information obtained on November 5, 2014 from Student's Private School skills trainer; progress reports from the Private School dated November 5; samples of Student's work on November 5; the behavioral health specialist's (“BHS”) observations of Student on November 5; the occupational therapist's (“OT”) observations of Student at the Private School on November 21, 2014; and input from the IEP team members. [2015 Decision at 5.] During the SPED Teacher's observation of Student, she saw Student try to converse with another student, who was younger. “The other student had difficulty communicating back and forth with Student; the other student wasn't able to answer questions and had to be prompted to engage in a conversation.” [Id. at 4.]

         As described by the Hearings Officer:

The [11/24/14] IEP provided Student with 270 minutes per quarter of counseling, 1770 minutes per week of special education, and l770 minutes of individualized instructional support. He would receive daily: 1) role playing of situations that may cause anxiety; 2) seating near positive peer role models; 3) modified lunch and recess, as needed until Student felt comfortable with peers; 4) opportunities to interact with same-age peers; 5) opportunities to practice self-calming strategies; 6) social stories to help with his anxiety and peer interaction; 7) Behavior Support Plan (“BSP”); and 8) Crisis Plan. He would also have peer mediated instruction and intervention (buddy program) two times per week.

[Id. at 5.] The Hearings Officer found that, based on the Home School Principal's and the SPED Teacher's testimony, Student would have an adult - i.e. a 1:1 aide - with him at all times when he returned to the Home School. [Id.] The 11/24/14 IEP provided for transition services at the Home School during the winter break, and the SPED Teacher testified about other transition services that would be available after the break. [Id. at 5-6.]

         The DOE Psychologist testified that the Crisis Plan was developed to address, inter alia: any future bullying because of the prior bullying that Student experienced at the Home School; and Mother's concerns about Student's anxiety related to bullying.[3] [Id. at 6.] As described by the Hearings Officer:

The Crisis Plan stated that the student “would be under close adult supervision at all times.” Interactions with peers would be monitored by an adult. The Crisis Plan listed steps to be taken “[s]hould a bullying incident occur (i.e., negative verbal and/or physical interaction, including, but not limited to: name calling, laughed at, pushed, kicked, punched, having things thrown at him, saying negative comments or statements, etc.) . . .[”]

[Id. at 7.]

         At the meeting, the IEP team proposed a “draft” IEP, but added the following statement in the final version to address concerns that Mother raised in a November 21, 2014 letter (“11/21/14 Letter”): “‘Mother later voiced concern about a bullying incident at the Home School.'” [Id. at 8; 11/24/14 IEP at 2.]

         In November 2014, Student began seeing a private counselor once a week for his anxieties. Student's Grandfather, who is Student's primary caretaker, testified that Student was a nervous child, who had phobias about other children, as well as the wind and rain. However, Student's anxieties improved after he started seeing the counselor. [11/24/14 IEP at 3-4.] The Hearings Officer found that the IEP team was unaware that Student was seeing a private counselor, and, if they had known about it, they would have had the Home School Counselor conduct further assessments to determine if there were other services or supports that Student needed. [Id. at 8-9.]

         Mother rejected the 11/24/14 IEP at the end of the meeting, and she sent a written notice of rejection to the Home School by facsimile on December 10, 2014. [Id. at 9.] The Home School issued a Prior Written Notice of Department Action on December 4, 2014 (“12/4/14 PWN”). It stated that Mother and the Private School representative wanted Student to remain at the Private School, but the Home School rejected that option because his IEP team could provide the services necessary for a FAPE at the Home School. [Id.; AR, Respondents' Exhs. at 27.] On December 28, 2014, Mother sent another letter to the Home School Principal rejecting the 11/24/14 IEP because of the previous bullying incidents at the Home School (“12/28/14 Letter”). The 12/28/14 Letter stated that Student would continue to attend the Private School and that Mother had instructed the Private School to continue to bill the DOE pursuant to the 2014 Decision. [2015 Decision at 9; AR, Petitioners' Exhs. at 45.] On February 3, 2015, the DOE sent the Private School a letter stating that it was only required to pay for Student's services received from the Private School up to the date of the 12/4/14 PWN. [2015 Decision at 9; AR, Petitioners' Exhs. at 46.]

         On February 11, 2015, the Home School sent Mother a letter through the Private School (“2/11/15 Letter”) regarding the scheduling of a meeting to review the 11/24/14 IEP and to develop a plan for Student's transition services during spring break. The 2/11/15 Letter noted that the DOE had been having difficulty contacting Mother and requested that she update her contact information as soon as possible. [2015 Decision at 9; AR, Petitioners' Exhs. at 47.]

         On February 13, 2015, Plaintiffs filed a request for a due process hearing (“Due Process Complaint”). [2015 Decision at 1; AR at 2-5 (Due Process Complaint).] The Hearings Officer conducted the due process hearing on May 29, 2015 and June 1, 2015. The parties also submitted post-hearing briefs. [2015 Decision at 2; AR at 197-213, 214-82, 283-97.]

         Prior to the due process hearing, on February 25, 2015, the DOE conducted a resolution session, with Mother and Plaintiffs' attorney participating by phone. Mother agreed to work with the Home School and the intended intermediate school (“Future Home School”) to develop a transition plan for the 2015-2016 school year. The DOE offered to perform a emotional behavioral assessment of Student, but Mother did not agree to the assessment. [2015 Decision at 10.]

         The Home School made multiple attempts to hold the transition meeting with the Future Home School, but could not contact Mother. Their letters were returned, and when DOE representatives went to her home, it appeared abandoned, but she never informed the Home School of an address change. Mother previously told the Home School to contact her through the Private School, but, in May 2015, when the Home School sent Mother a letter regarding a transition meeting on June 22, 2015, the Private School refused to accept it on her behalf. [Id.]

         On March 30, 2015, Mother sent the Home School Principal a letter about one of the proposed transition meetings. She stated that: she was concerned about the prior bullying and whether there were sufficient protections in place to prevent future bullying incidents; Student was thriving at the Private School and she wanted him to remain there; and she wanted to wait for the ruling on the Due Process Complaint before making any arrangements for his return to the Home School or for his attendance at the Future Home School. [Id.; AR, Petitioners' Exhs. at 49.]

         On May 8, 2015, the Home School Principal sent Mother a letter through the Private School regarding holding a transition meeting on May 21, 2015, after having previously offered six other dates. The Home School Principal acknowledged Mother's concerns about bullying and stated that they could review Student's plan and make changes. [2015 Decision at 10; AR, Petitioners' Exhs. at 112.] Also on May 8, Mother wrote the Home School a letter, stating that Student had visited the grounds of the Future Home School, and he told Mother that he was not brave enough to go there. According to Mother, “Student was ‘experiencing post-traumatic stress around large crowds of peers from his many years of continual bullying' at the Home School.” [2015 Decision at 9-10; AR, Petitioners' Exhs. at 50.] Mother stated that Student was not ready to transition to the Future Home School, and she thought it was best to leave him at the Private School. [2015 Decision at 10; AR, Petitioners' Exhs. at 50.] Grandfather and the Private School representatives who testified before the Hearings Officer took similar positions. [2015 Decision at 12 (Clinical Director), 14 (Behavioral Intervention Specialist and Grandfather).]

         The Hearings Officer made findings about the appropriateness of the Private School and Student's progress at the Private School, but those are not at issue here because Defendants have acknowledged that the 2014 Decision established that the Private School was Student's educational placement, at least up to the 12/4/14 PWN. Further, Defendants do not dispute that Student has received academic benefits at the Private School.

         The DOE District Resource Teacher (“DRT”) testified as an expert in special education and Applied Behavioral Analysis (“ABA”). The DRT observed Student at the Private School in the fall of 2013 and wanted to observe Student again prior to the due process hearing, but the Private School did not grant the DRT permission to do so. [Id. at 14.]

79. The DRT recommended that Student have a “desensitization program, ” starting off with Student being in a situation of safety and comfort and slowly introducing new elements such as typically developing peers. The peers would be trained to understand how to react to Student, and they would participate in activities that Student particularly enjoyed. Once he developed a positive attitude and a feeling of safety in the new situations, the number of peers, activities, and locations would be expanded. . . .

[Id. at 14-15.] According to the DRT, the Future Home School could facilitate such a program, but the Private School could not because of its small size. The Private School's size “does not provide Student with opportunities to help desensitize him to his anxiety in large groups.” [Id. at 15 (citing TR 208:6-209:21).]

         The Hearings Officer concluded that the 11/24/14 IEP was tailored to fit Student's unique needs and to provide him with educational benefits. In particular, the Hearings Officer noted that the 11/24/14 IEP provided Student with a 1:1 at all times to prevent bullying. The Hearings Officer found that: “[i]f the l:1 needed a bathroom break, the supervising teacher or other paraprofessional would provide coverage. If the 1:1 was absent, the Home School would either obtain a substitute or rotate current staff to provide the support. Student would never be left alone.” [Id. at 18.] The Hearings Officer also emphasized the fact that the 11/24/14 IEP provided a transition plan during winter break, and the SPED Teacher testified she would implement additional transition support services when school started. Further, the IEP provided for 270 minutes per quarter of counseling to help Student with his anxieties. [Id. at 18-19.] The Hearings Officer also emphasized that the Home School tried to engage Mother to participate in the transition plan meeting to address her concerns about bullying, but Mother did not respond. [Id. at 19.]

         As to the Crisis Plan, Plaintiffs' position was that the team should have followed the United States Department of Education, Office for Civil Right's (“OCR”) October 21, 2014 Dear Colleague Letter: Responding to Bullying of Students with Disabilities (“10/21/14 Dear Colleague Letter”). [Id. at 20; AR, Petitioners' Exhs. at 72-84 (10/21/14 Dear Colleague Letter).]

         Mother apparently argued that, to address the prior bullying incidents, the Home School should have implemented the components of the resolution agreements described in the 10/21/14 Dear Colleague Letter. The Hearings Officer described those components as follows:

1) ensure that FAPE is provided; 2) offer the Student counseling; 3) monitor whether bullying persists and take corrective action; 4) develop and implement a school-wide bullying prevention program; 5) devise a voluntary school climate survey for students and parents to assess the presence and effect of bullying; 6) revise the response to bullying and develop staff protocols to improve the response; 7) train staff and volunteers; and 8) provide continuing education to students on the anti-bullying policies, including where to get help.

         [2015 Decision at 20-21.] The Hearings Officer recognized that these were valid responses to bullying and that schools could implement them, but the Hearings Officer concluded that the 10/21/14 Dear Colleague Letter did not require schools to do so. [Id.]

         Moreover, the Hearings Officer found that the Home School implemented most of the suggestions - in particular, by providing Student with counseling and a 1:1 aide. The Hearings Officer acknowledged that the Home School did not have a formal anti-bullying policy, but noted that the Home School “follows the disciplinary procedures set forth in [Haw. Admin. R.] Chapter 19, and the teachers and staff are trained in these procedures.” [Id. at 21.] The Home School had also held various anti-bullying events, and the Future Home School participates in anti-bullying programs and has “a classroom peer/buddy system for special education students.” [Id.] Thus, the Hearings Officer concluded that, even if the DOE was required to follow the 10/21/14 Dear Colleague Letter, “the Home School has substantially complied with its recommendations” and it “has taken several preventative measures to protect Student, as well as the entire student body, from bullying.” [Id. at 21-22.]

         At the due process hearing, Plaintiffs argued, inter alia, that: 1) Defendants failed to acknowledge that Student previously suffered harm due to the Home School's deliberate indifference to Student's rights; and 2) without such acknowledgment, there was no reason for Plaintiffs to believe that the Home School made sufficient changes to prevent harm to Student if he returned there. In response to these arguments, the Hearings Officer pointed out that: the IEP team developed the Crisis Plan to address Mother's concerns about bullying; the Private School's October 29, 2014 progress report indicated that Student's emotional outbursts were infrequent and his management of his anxiety had improved; the IEP team was unaware that Student was seeing a private counselor and, if it had been aware, the Home School Counselor would have conducted further assessments to determine whether additional services or supports were necessary; and Mother did not inform the team during the November 24, 2014 meeting either that Student was experiencing on-going harm from the prior bullying incidents or that he was seeing a private counselor. [Id. at 22-23.] After Mother informed the team about the on-going harm, the Home School offered to conduct an emotional behavioral assessment, but it could not do so because Mother would not consent to the evaluation. [Id. at 23 (citing 20 U.S.C. § 1414).] The Hearings Officer stated that the DOE did not become aware that Student was experiencing anxiety in large groups of non-disabled peers until it was provided with a May 8, 2015 progress report from the Private School. The Hearings Officer concluded that the DOE “cannot be expected to address behavioral needed [sic] that it does not know exists, ” and that the 11/24/14 IEP and the Crisis Plan were drafted “with the input provided by the entire team and the information they had at the time.” [Id.] The Hearings Officer observed that Mother, the Private School representative, and Plaintiffs' expert witness were in the best position to provide information about Student's anxieties, but they chose not to do so. [Id.]

         The Hearings Officer concluded that, while the 11/24/14 IEP did not expressly state that Student had been bullied in the past, the IEP team clearly acknowledged this because the IEP provided “counseling, 1:1 aide, transition plan, buddy program, [and] Crisis Plan.” [Id.] He also noted that the final version of the 11/24/14 IEP included a statement in the background section about Mother's concern about bullying at the Home School. The SPED Teacher testified that this statement was added in response to the concerns raised in Mother's 11/21/14 Letter. [Id.] Thus, the Hearings Officer found that “the DOE adequately acknowledged that Student had been a victim of previous bullying, ” and concluded that it “offered Student programs and services in the November 24, 2014 IEP and Crisis Plan to specifically address this issue.” [Id. at 24.] The Hearings Officer concluded that the 11/24/14 IEP offered Student a FAPE at the Home School, and therefore the offered placement at the Home School was appropriate. [Id. at 25.]

         The Hearings Officer found that: the 2014 Decision established Student's placement as the Private School; the 12/4/14 PWN changed his placement to the Home School; and Mother “unilaterally continued to place Student at the private school.” [Id. at 24.] However, the Hearings Officer acknowledged that Plaintiffs exercised their rights to challenge the placement at the Home School by filing the Due Process Complaint. [Id. at 25.] The Hearings Officer concluded that, because Mother made a unilateral decision to continue to place Student at the Private School, she ran the risk that retroactive reimbursement would be denied. Because Plaintiffs failed to prove that the 11/24/14 IEP either procedurally or substantively violated the IDEA and failed to offer Student a FAPE, Plaintiffs were not entitled to reimbursement for Student's attendance at the Private School. [Id. at 26.]

         The instant appeal followed. Plaintiffs allege that the 11/24/14 IEP failed to offer Student a FAPE because: 1) the IEP team refused to discuss Mother's concerns about the prior bullying incidents at the Home School; 2) the 11/24/14 IEP failed to address the prior bullying incidents; 3) it called for placement at the Home School even though the school failed to comply with the 10/21/14 Dear Colleague Letter; 4) the IEP, including the Crisis Plan, failed to include sufficient protections to address the risk of future bullying; 5) it failed to address the on-going harm that Student was still suffering from the prior bullying incidents; and 6) it failed to include an adequate transition plan.

         STANDARD

         This Court has examined what constitutes a FAPE, and what is required in reviewing an administrative decision under the IDEA:

         The IDEA defines FAPE as:

special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.
[20 U.S.C.] § 1401(9). To provide FAPE in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education, and formulate and implement an IEP. See generally 20 U.S.C. § 1414.
The standard for district court review of an administrative decision under the IDEA is set forth in 20 U.S.C. § 1415(i)(2)(c), which provides:
In any action brought under this paragraph, the court -
(i) shall receive the records of the administrative ...

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