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Department of Education v. Leo W.

United States District Court, D. Hawaii

December 29, 2016

LEO W., by and through his Parent VERONICA W., Defendants.


          Leslie E. Kobayashi United States District Judge.

         On March 9, 2016, Plaintiff Department of Education, State of Hawai`i (“Plaintiff, ” “the DOE” or “Respondent”), filed an appeal of the Administrative Hearings Officer's (“Hearings Officer”) February 10, 2016 Findings of Fact, Conclusions of Law and Decision (“Decision”).[1] [Complaint (dkt. no. 1).] Plaintiff filed its Opening Brief on July 8, 2016. [Dkt. no. 14.] Defendants Leo W. (“Student”), by and through his Parent, Veronica W. (“Mother, ” collectively “Defendants” or “Petitioners”), filed their Answering Brief on August 8, 2016, and the DOE filed its Reply Brief on August 23, 2016. [Dkt. nos. 16, 18.] The Court heard oral argument in this matter on October 31, 2016. After careful consideration of the briefs, record, arguments of counsel, and relevant legal authority, this Court HEREBY VACATES the portion of the Decision addressing Child Find, REVERSES the Hearings Officer's ruling that the DOE's failure “to conduct needed behavioral assessments” denied Student a free appropriate public education (“FAPE”), REVERSES the reimbursement award, and AFFIRMS the Decision in all other respects.


         At the time of the Decision, Student was six years old and was eligible for special education and related services under the category of developmental delay. He has also been diagnosed with Autism Spectrum Disorder (“ASD”) and attention-deficit/ hyperactivity disorder (“ADHD”). [Decision at 2-3, 18.]

         I. Attendance at the Home School

         Student began attending the Home School in June 2013, when he was approximately three-and-a-half years old. He was enrolled in the school's Head Start preschool program. Head Start includes students from economically disadvantaged families. At the Home School, ten percent of the students in its Head Start program are special education students. Head Start is an inclusion program in a fully self-contained classroom. [Id. at 3, 18.]

         Student attended the Home School's preschool for the 2013-14 and 2014-15 school years. His first individualized education program (“IEP”) was developed in the 2013-14 school year. [Id. at 18.] Student's special education teacher for that year (“2013-14 SPED Teacher”) did not testify before the Hearings Officer. During that school year, the 2013-14 SPED Teacher created a behavioral support plan (“BSP”) for Student. Thus, the Hearings Officer found that Student's January 14, 2014 IEP (“1/14/14 IEP”) and April 4, 2014 IEP (“4/4/14 IEP”) “had a BSP as a supplemental aid when appropriate.”[2] [Id. at 3.] Student's classroom for the 2013-14 school year was a fully self-contained classroom, and Mother testified that Student did well in the class between February and May 2014. [Id.]

         Student's May 22, 2014 IEP (“5/22/14 IEP”) did not include a BSP, but it did offer Student extended school year (“ESY”) services during Summer 2014. At the due process hearing, the principal of the Private School, [3] testified that the 5/22/14 IEP's present levels of education performance (“PLEPs”) section regarding Student's social and emotional skills was consistent with the Private School's current observations of Student. [Id. at 4.] The Parent Concerns section of the 5/22/14 IEP stated that Student: lacked social skills, including playing appropriately with other children; had “depressive spells” that could last over a week; had violent tantrums at home and had a hard time calming himself down. [Id. at 5.] It also noted that the family was receiving parent-child therapy, which seemed to be helping, and that Mother had noticed that Student's behavior and attitude had improved since he started school. [Id.] Student's last IEP before the May 18, 2015 IEP (“5/18/15 IEP”) - which is at issue in this case - was the October 21, 2014 IEP (“10/21/14 IEP”). The 10/21/14 IEP did not include a BSP, but did provide for ESY services. [Id.]

         Student's special education teacher during the 2014-15 school year (“2014-15 SPED Teacher”) testified at the due process hearing. Student's preschool classroom during the 2014-15 school year had eighteen students, with Student being one of four SPED students. The 2014-15 SPED Teacher testified that the class was highly structured and that the students were expected to follow class rules and schedules, and to perform academic and developmentally appropriate activities. The 2014-15 SPED Teacher testified that, by the end of the year, Student was at the same level, academically, as the general education students, and he was ready for kindergarten. She also testified that he had made progress in his interactions with peers, and his play was appropriate. According to the 2014-15 SPED Teacher, Student's behaviors were typical for a five-year-old. He did throw things, but he did not have tantrums. [Id. at 5-6.] The DOE district preschool resource teacher (“DRT”) testified that Student's behavior at the Home School was typical of other preschool children and that Student was not aggressive. However, the DRT last observed Student in the classroom in October 2014 and on the playground in 2015. Further, the DRT was there to observe the class in general, not specifically to observe Student. [Id. at 6-7.]

         II. 5/18/15 IEP

         Student's 5/18/15 IEP provided the following: 1765 minutes per week of special education from May 20, 2015 to July 28, 2015 in a general/special education setting; 300 minutes per week from July 29, 2015 to May 14, 2016 in a general education setting; 180 minutes per quarter of speech-language therapy; daily transportation services; and preferential seating as a supplemental aid. [Id. at 12-13.] The 300 minutes of special education services that Student was to receive in an inclusion setting during kindergarten was for language arts and math. The 2014-15 SPED Teacher testified that this was appropriate based on Student's level of functioning. [Id. at 13.] The 5/18/15 IEP provided that Student would be with general education peers from 8:00 a.m. to 2:00 p.m. every day except Wednesday, when it would be from 8:00 a.m. to 1:00 p.m. He would be with only special education peers during the other times during the school day. [Id. at 16.]

         According to the Decision, Mother asked the IEP team why the BSP was being removed, and she testified that the 2014-15 SPED Teacher told her that a BSP was not necessary because Student would be in an inclusion classroom. The 2014-15 SPED Teacher testified that behavioral modifications were done for the entire class. [Id. at 13.] Mother testified that she expressed her concerns that the 5/18/15 IEP did not include any behavioral goals and that Student needed a behavioral assessment. According to Mother, the team heard her concerns, but did not act upon them. [Id. at 16.]

         The 5/18/15 IEP stated that Student did not qualify for ESY services. The IEP team considered four factors in deciding that he was not eligible: “the nature and severity of the disabling condition, Student's ability to be self-sufficient, regression, and recoupment.” [Id. at 13.] The 2014-15 SPED Teacher told the IEP team that her data about Student did not show that ESY services were necessary because he was performing at his grade level and did not show any problems with recoupment or regression. For example, she testified that, after a three-week break during the 2014-15 year, Student returned to school ready to learn, but she did not address whether he had regressed. According to the 2014-15 SPED Teacher, Mother did not oppose the finding that Student was ineligible for ESY services. The Home School Vice-Principal testified that the entire team agreed that Student did not need ESY services, but Mother testified that she did express her concern that Student would regress without ESY services. [Id. at 13-14.]

         In the 5/18/15 IEP, the social-emotional section of the PLEPs stated, inter alia, that Student was comfortable in the classroom, dealt with transitions well, followed class rules and routines, participated in activities that he did not choose, and got along well with his peers. It stated that he had no social-emotional needs at the time. [Id. at 14-15.] The 5/18/15 IEP did not identify any social or behavioral goals. [Id. at 16.]

         Mother testified that she disagreed with the PLEPs at the May 18, 2015 IEP team meeting, and she told the team that Student's behaviors had gotten worse during the 2014-15 school year. The DOE representatives on the team responded that the problematic behaviors were only occurring at home, not at school. Mother also disagreed with the lack of behavioral goals, and she asked for a behavioral assessment, but the team did not act on her concerns and requests, other than mentioning the concerns in the Family/Medical section of the 5/18/15 IEP. [Id. at 15-16.] At the due process hearing, the Private School Principal disagreed with the social-emotional PLEPs in the 5/18/15 IEP. Mother testified that Student did misbehave at the Home School and needed redirection, but she admitted that he needed constant supervision at home. [Id. at 15.] The 2014-15 SPED Teacher confirmed that Mother had previously reported “Student was defiant, aggressive, not listening, and depressive at home.” [Id.] The 2014-15 SPED Teacher also testified that Student's in-school behaviors discussed at the May 18, 2015 IEP team meeting were typical of a student his age. According to the 2014-15 SPED Teacher, Mother saw a draft of the 5/18/15 IEP before the team meeting, but Mother did not question the social-emotional PLEPs at the meeting. [Id. at 16.]

         The Hearings Officer found that the social-emotional PLEPs in the 5/18/15 IEP were inconsistent with the testimony of DOE district psychologist Abby Royston, Ph.D., [4] and J.F.'s report.[5] [Id.]

         The May 18, 2015 prior written notice (“5/18/15 PWN”) stated that the DOE proposed to modify Student's program such that Student would remain in his inclusion preschool classroom for the remainder of the school year and move to a general education kindergarten classroom for the 2015-16 school year. The 5/18/15 PWN stated that the specialized instruction that Student needed could be provided in the general education setting. [Id. at 16-17.]

         III. Move from the Home School to the Private School

         Student last attended the Home School in May or June 2015. Mother disagreed that Student had the skills the DOE representatives attributed to him when he left the Home School. According to Mother, Student was only happy at the Home School because they “did not make him do anything, and let Student be in control.” [Id. at 6.] For example, if Student was upset, the 2014-15 SPED Teacher allowed him to withdraw from the activity he did not want to do. Mother also testified that the goals the Home School set for Student were not challenging enough for him. [Id.] The Hearings Officer found that Mother pulled Student out of the Home School “as he was not being provided proper supports.” [Id. at 9.] The Private School Principal testified that Student needed more than 300 minutes per week of special education services and that Student needed ESY services. [Id. at 14.]

         Because the 5/18/15 IEP denied Student ESY services, Mother placed him in the Summer Fun program, at the DOE's suggestion. [Id.] The Hearings Officer found that, “[a]ccording to Mother, the Summer Fun program was administered by college students who were not trained. The program was not structured, and Student was isolated.” [Id. at 9.]

         In July 2015, Mother applied to enroll Student at the Private School, and he began attending the Private School on August 24, 2015. The Hearings Officer found that the Private School had approximately twenty-five students, from age five to age seventeen. The other students in Student's age group were: a five-year-old, a seven-year-old, two eight-year-olds, and a nine-year-old. [Id. at 10.] The Private School “is located in several different rooms within a shopping center, ” but “there is a grassy area and a nearby park that the [Private School] students use at times during the daily recess.” [Id. at 11.]

         The Hearings Officer found that “[m]ost of the students [at the Private School] do not have as much behavioral problems as Student.” [Id. at 10.] The Private School had Student's parents hire a board-certified behavior analyst (“BCBA”) to help the school deal with his behavior. The BCBA did not testify at the due process hearing. The Private School has a Functional Behavioral Assessment/Behavioral Support Plan (“FBA/BSP”) for Student that was created by the BCBA. The Private School does not keep data regarding Student's behaviors. The Private School Principal testified that she spoke often with Student's BCBA and that the BCBA provided on-going training to other Private School staff who worked with Student. [Id.]

         At the Private School, Student would throw heavy and sharp objects, “wreck” a game if he was losing, had to be restrained, knocked over desks, kicked things, kicked his teacher, damaged property, and would sometimes lie on the floor to avoid work. [Id. at 11.] Student would scare the other students and, although he always had a 1:1 aide, sometimes he needed two aides. At the time of the Decision, Student left the Private School after lunch every day because that was all he could handle. The Private School Principal testified that Student was “okay with preferred activities, but . . . not okay with non-preferred activities.” [Id.] According to Mother, when the Private School started trying to use applied behavioral analysis techniques, Student had to be restrained more. However, the Private School Principal testified that Student's behavior had improved within the last two months prior to the hearing. [Id.] According to the Private School Principal, in late July or early August 2015, she spoke to a DOE office worker - whom the Private School Principal could not identify - who said Student had behavioral problems in the Home School. The Private School Principal testified that this was contrary to the Home School's reports. [Id.] Mother admitted that the Private School struggled with Student's behaviors and that sometimes the school had to isolate him. [Id. at 11-12.]

         IV. Relevant Assessments

         A. Tyson Report

         Mother asked the DOE in August and September 2013 to perform a comprehensive assessment of Student. The DOE did so around that time, but the Hearings Officer noted that there was no evidence of a more recent comprehensive assessment. Mother later asked private psychologist Karen Tyson, Psy.D., to perform the assessment. [Id. at 7.] Dr. Tyson assessed Student in March and April 2015 and prepared a Neuropsychological Evaluation dated June 1, 2015 (“Tyson Report”). Relying heavily on the observations of Student's parents, Dr. Tyson “diagnosed Student with ASD, without intellectual impairment, without language impairment requiring level 1 support, ” and made recommendations, including “a structured academic environment, social skills groups, consistent routine, reminders, extended time, monitored emotions, and re-evaluation.” [Id. (citing AR, Respondent's Exh. 18 at 185-86).] Dr. Tyson acknowledged that, while Mother's autism spectrum rating scales strongly supported a diagnosis of ASD, the 2014-15 SPED Teacher's reports were inconsistent with Mother's ratings. The Hearings Officer acknowledged that Dr. Tyson did not testify at the due process hearing and that the IEP team did not have the Tyson Report when it formulated the 5/18/15 IEP. [Id. at 7-8.]

         After Mother received the Tyson Report, she requested an IEP team meeting to discuss it. A meeting was held, but the IEP team did not discuss all of the Tyson Report, and the DOE declined to change the 5/18/15 IEP. The DOE issued a June 16, 2015 prior written notice (“6/16/15 PWN”) which stated that the DOE would conduct an observation but, although the DOE considered the issue, it determined that an adaptive behavior assessment was not necessary because Student was “‘independent in self-care skills.'” [Id. at 17 (quoting AR, Respondent's Exh. 2, at 31).] Mother testified that she wanted the adaptive behavior assessment because of Student's past social and behavioral problems. At some point thereafter, Mother asked for another IEP team meeting because she felt Student needed additional supports. A meeting was held on December 10, 2015. Mother testified that Student was scheduled to return to the Home School on January 6, 2016. [Id. at 17-18.]

         B. Dr. Royston's Testimony

         Dr. Royston testified at the due process hearing as an expert in clinical psychology and school psychology. Dr. Royston was one of the co-signors on Student's October 22, 2013 Adaptive and Emotional/Behavioral Assessment, which found that Student met the criteria for ADHD, with a predominantly hyperactive/impulsive presentation, mild to moderate severity. At the time of this assessment, Student was three years and ten months old, and he exhibited behaviors that were not consistent with an ASD diagnosis. However, Dr. Royston acknowledged that Student's autism test results may have been skewed by the fact that he was given a version of the test that was not age-appropriate. Dr. Royston testified that, ultimately, the diagnosis does not matter as much as the child's skill levels and observed behaviors that impact his education. Prior to the due process hearing, Dr. Royston reviewed Student's records, including the Tyson Report. According to Dr. Royston, Dr. Tyson ignored the fact that the inconsistency between Mother's ratings and the 2014-15 SPED Teacher's reports may have indicated that Student behaved differently at home than he did at school. [Id. at 8-9.]

         Dr. Royston observed Student at the Private School on October 2 and 28, 2015. However, because of the other students' privacy, Dr. Royston had to conduct the observations through cameras and a tablet. Dr. Royston “opined that, based on Student's destructive conduct, the [Private School] was a harmful environment and not appropriate for Student.” [Id. at 9.]

         C. Other Testimony and Reports

         Student started working with private psychologist Janet Fitzgerald, Psy.D., in late August 2015. According to Dr. Fitzgerald, Student is “a high-functioning child with autism, ” and Student is “a perfectionist” with “an intense negativity.” [Id. at 12.] This leads to self-esteem problems, undesired behaviors, and refusal to do things that he is afraid he will fail at. Dr. Fitzgerald endorsed Dr. Tyson's recommendations, and Dr. Fitzgerald testified that Student's emotional and social issues impair his academic progress. [Id. (citing AR, Petitioners' Exh. 1, at page 78).] Student's primary care physician - who Student began seeing in January 2015 - did not testify at the due process hearing, but submitted a November 3, 2015 letter supporting Dr. Tyson's diagnoses and recommendations. [Id. (citing AR, Petitioners' Exh. 1, at page 68).]

         V. The Decision

         Petitioners filed their Complaint before the State of Hawai`i Office of Administrative Hearings, Department of Commerce and Consumer Affairs (“Due Process Complaint”), on July 24, 2015. [AR at 2-8.] The Hearings Officer summarized the issues raised in the Due Process Complaint as follows:

A. Whether the DOE failed to complete and consider needed assessments, and whether Student needed a behavioral evaluation;
B. Whether the DOE denied Student a FAPE by failing to provide Student with ESY services; whether the IEP team failed to discuss/consider ESY eligibility appropriately; and whether Student was placed in the (least restrictive environment) during summer 2015 ESY;
C. Whether Student's May 18, 2015 IEP denied Student a FAPE by failing to offer Student appropriate special education services, or supplemental aids or modification to address Student's needs, including Student's social deficits; and
D. Whether Student's May 18, 2015 IEP denied Student a FAPE by failing to allow parents meaningful participation.

[Decision at 18-19.] Petitioners requested, inter alia, payment/reimbursement for Student's educational services at the Private School, and other related services. Thus, the appropriateness of the placement at the Private School was also at issue. [Id. at 19.]

         The Hearings Officer concluded that Petitioners' claim that the DOE failed to conduct necessary assessments required consideration of the IDEA's “Child Find” provision, 20 U.S.C. § 1412(a)(3)(A). [Id.] The Hearings Officer found that the DOE failed to conduct necessary behavioral assessments, and concluded that the 5/18/15 IEP failed to offer Student a FAPE. [Id. at 22.] Based on the same analysis as the Child Find issue, the Hearings Officer concluded that, because the 5/18/15 IEP failed to provide for the necessary evaluation of Student's behavioral, social, and emotional deficits, the IEP failed to offer Student a FAPE because it did not include the services, supplemental aides, program modifications, goals, and objectives that were appropriate in light of his need in those areas. [Id. at 25-29.] However, the Hearings Officer rejected Petitioners' argument that the 5/18/15 IEP should have provided Student with more than 300 minutes per week of special education. The Hearings Officer concluded that this amount was appropriate in light of Student's intelligence, level of functioning, and abilities. [Id. at 29.]

         The Hearings Officer concluded that the IEP team did not deny Student a FAPE when it decided that he was not eligible for ESY services during the summer of 2015. [Id. at 22-24.] The Hearings Officer also rejected Petitioners' argument that Student's parents were denied meaningful participation in the formulation of the 5/18/15 IEP. [Id. at 30.]

         Finally, the Hearings Officer concluded that Student's placement at the Private School was appropriate and awarded Petitioners payment/reimbursement of Student's educational and related services at the Private School from August 24, 2015 to Student's return to the Home School in January 2016. [Id. at 32-33.]

         VI. The Instant Case

         This appeal followed. The DOE filed its Complaint on March 9, 2016. The DOE alleges that: 1) the Hearings Officer did not have jurisdiction over the Child Find issue because Petitioners did not raise it in the Due Process Complaint; 2) even if the Hearings Officer properly considered the issue, the DOE has satisfied its Child Find obligations in this case; 3) the Hearings Officer erred when he concluded that the DOE's failure to address Student's behavioral and social issues denied Student a FAPE because the Hearings Officer failed to evaluate the 5/18/15 IEP based on the information that was available at the time the IEP was created; 4) the DOE was not required to conduct a behavioral assessment in this case because Student's behavioral problems at home were not affecting his educational progress at the Home School; and 5) even if this Court affirms the Hearings Officer's conclusion that the 5/18/15 IEP failed to offer Student a FAPE, it should vacate the award of reimbursement because the Private School is not an appropriate placement for reimbursement purposes.

         Petitioners filed an Answer and Counterclaim on April 8, 2016, and the DOE filed an answer to the Counterclaim on April 15, 2016. [Dkt. nos. 8, 9.] Petitioners' Counterclaim alleges, in pertinent part:

The hearings officer found that Defendants did not show that the May 18, 2015 IEP inappropriately denied Student ESY services; failed to discuss/consider ESY eligibility appropriately; failed to offer Student appropriate special education services, as the 300 minutes per week of special education services offered were sufficient, and failed to allow parent meaningful participation in the development of Student's IEP. These findings and or conclusions were in error and Defendant's [sic] were aggrieved by same.

[Answer and Counterclaim at ¶ 9.] Because this Court construes the DOE's Complaint as a notice of appeal, see I.T. ex rel. Renee T. v. Dep't of Educ., Civil No. 11-00676 LEK-KSC, 2013 WL 3872787, at *2 (D. Hawai`i July 24, 2013), it construes Petitioners' Counterclaim as a notice of cross-appeal.


         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 proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
This standard requires that “due weight” be given to the administrative proceedings. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009) (some citations omitted) (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).[6] The amount of deference accorded is subject to the court's discretion. J.W. [ex rel. J.E.W. v. Fresno Unified Sch. Dist.], 626 F.3d [431, ] 438 [(9th Cir. 2010)] (citation omitted). In reaching that determination, the court should consider the thoroughness of the hearings officer's findings, increasing the degree of deference where said findings are “thorough and careful.” L.M., 556 F.3d at 908 (quoting Capistrano Unified Sch. Dist. v. Wartenberg ex rel. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)). “Substantial weight” should be given to the hearings officer's decision when it “evinces his careful, impartial consideration of all the evidence and demonstrates his sensitivity to the complexity of the issues presented.” Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466-67 (9th Cir. 1996) (citation and quotation marks omitted)) [sic]. Such deference is appropriate because, “if the district court tried the case anew, the work of the hearings officer would not receive ‘due weight, ' and would be largely wasted.” Wartenberg, 59 F.3d at 891.

N.B. v. Hawai`i, Civil No. 13-00439 LEK-BMK, 2014 WL 3663452, at *2-3 (D. Hawai`i July 21, 2014) (some alterations in N.B.). The Ninth Circuit has stated:

When analyzing whether an agency provided a student a FAPE, we conduct a two-part inquiry. First, we consider whether “the State complied with the procedures set forth in the Act.” Amanda J. [ex rel. Annette J. v. Clark Cty. Sch. Dist.], 267 F.3d [877, ] 890 [(9th Cir. 2001)] (quoting [Bd. of Educ. v.] Rowley, 458 U.S. [176, ] 206-07, 102 S.Ct. 3034) (internal quotation marks omitted). Second, we must determine whether the IEP is “rationally calculated to enable the child to receive educational benefits.” Id. A state must meet both requirements to comply with the obligations of the IDEA. Rowley, 458 U.S. at 207, 102 S.Ct. 3034.
Harmless procedural errors do not constitute a denial of FAPE. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 910 (9th Cir. 2008). “‘However, procedural inadequacies that result in the loss of educational opportunity, or seriously infringe the parents' opportunity to participate in the IEP formulation process, clearly result in the denial of FAPE.'” Shapiro [ex rel. Shapiro v. Paradise Valley Unified Sch. Dist.], 317 F.3d [1072, ] 1079 [(9th Cir. 2003)] (quoting W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992)).[7] Where a court identifies a procedural violation that denied a student a FAPE, the court need not address the second prong. Id.

Doug C. v. Haw. Dep't of Educ., 720 F.3d 1038, 1043 (9th Cir. 2013) (footnote omitted).[8] As to the second part of the inquiry, the Ninth Circuit has stated:

The School District must offer the Student a placement that is tailored to the Student's unique needs. See Gregory K. [v. Longview Sch. Dist.], 811 F.2d [1307, ] 1314 [(9th Cir. 1987)]. Additionally, the placement must be in the least restrictive environment - in other words, the Student must be placed with non-disabled peers “to the maximum extent appropriate.” 34 C.F.R. § 300.114; 20 U.S.C. § 1412(a)(5)(A). . . .

A.R. ex rel. Reese v. Santa Monica Malibu Sch. Dist., 636 F. App'x 385, 386 (9th Cir. 2016).

The burden of proof in IDEA appeal proceedings is on the party challenging the administrative ruling. Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007) (citations omitted). The challenging party must show, by a preponderance of the evidence, that the hearing decision should be reversed. J.W., 626 F.3d at 438 (citation omitted).

N.B. v. Hawai`i, 2014 WL 3663452, at *3. “However, the ultimate determination of whether an IEP was appropriate is reviewed de novo.” A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing Wartenberg, 59 F.3d at 891).


         I. Preliminary Issues

         A. Scope of Review

         At the outset, this Court must address the DOE's argument that it should disregard Petitioners' cross-appeal because they failed to file a timely opening brief in support of the cross-appeal. On May 9, 2016, the magistrate judge issued the following briefing deadlines: “Opening Brief” - July 8, 2016; “Opposition” - August 8, 2016; and “Reply” - August 23, 2016. [Minutes, filed 5/9/16 (dkt. no. 12).] Although not expressly stated in the magistrate judge's minutes, insofar as the magistrate judge did not give separate deadlines for the DOE's appeal and Petitioners' cross-appeal, the deadlines for both were the same. The DOE's opening brief in support of their appeal and Petitioners' opening brief in support of their cross-appeal were both due by July 8, 2016.

         Petitioners did not file an opening brief in support of their cross-appeal. Instead, they presented arguments in support of their cross-appeal within their Answering Brief, which they filed on August 8, 2016. To the extent that Petitioners' Answering Brief also purports to be their opening brief in support of their cross-appeal, Petitioners' “opening brief” was untimely. Although it is within this Court's discretion to strike Petitioners' “opening brief, ” in the interests of justice, this Court will consider it. Accord Minutes, filed 10/12/16 (dkt. no. 25) (concluding that a brief continuance of the oral argument because of the late transmittal of the administrative record was in the interests of justice).

         However, this Court will not consider Petitioners' argument that Student requires certain aids, services, and/or modifications that were not included in the 5/18/15 IEP. See Answering Brief at 7-9. Petitioners' Due Process Complaint did argue:

Student needed the all [sic] or any of the following supplemental aids and/or services and/or modifications to this program, but did not get them in his IEP:
structured socialization opportunities; parent training; structured classroom environment; short instructional periods with breaks; transition supports; visual schedule; assistive technology fo communication; FBA/BSP; Extra time for assignments regarding in-class and/or homework; check for understanding; repeat instructions; modified testing environment; preferential seating; chucking [sic] of assignments; multi-modality instruction.

[AR at 4.] But, Petitioners' Counterclaim/cross-appeal did not address this issue. See Counterclaim at ¶ 9 (challenging the Hearings Officer's ruling that they did not show that the 5/18/15 IEP “failed to offer Student appropriate special education services, as the 300 minutes per week of special education services offered were sufficient”). Thus, as to the specific services, supports, aids, and modifications contained in the 5/18/15 IEP, the only issue properly before this Court in the cross-appeal is Petitioners' challenge to the amount of weekly special education services. This Court expresses no opinion regarding the other items mentioned in that portion of Due Process Complaint.

         B. Level of Deference

         This Court has considered the Decision as a whole and FINDS that there are portions of the Decision that do not “evince[ a] careful, impartial consideration of all the evidence” and do not “demonstrate[ a] sensitivity to the complexity of the issues presented.” See Cty. of San Diego, 93 F.3d at 1466. In particular, the Decision includes legal errors in the Child Find analysis, and the Decision's analysis of the need for a behavioral reevaluation glosses over considerable factual testimony that contradicts the Hearings Officer's findings, without a sufficient explanation. These are significant factors that undermine the Court's confidence in the administrative findings in those sections of the Decision. The Court therefore gives minimal deference to those sections of the Decision. See Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d 1004, 1009 (9th Cir. 2009) (“The court is free to determine independently how much weight to give the state hearing officer's determinations.” (citations omitted)). However, this Court has recognized that:

Where a decision contains some findings that are “thorough and careful, ” and others that are not, however, the court can give deference to the thorough and careful findings independently. See R.B., ex rel. F.B. v. Napa Valley Unified School Dist., 496 F.3d 932, 943 (9th Cir. 2007) (“[W]e accord particular deference to the [hearings officer's] ‘thorough and careful' findings . . . although we independently review the testimony in the record that [he] failed to consider.”). Accordingly, the Court finds that the Hearings Officer's findings and conclusions are entitled to increased deference, with some exceptions noted below. See L.M., 556 F.3d at 908. . . .

Dep't of Educ., Hawaii v. Z.Y. ex rel. R.Y., Civil No. 13-00322 LEK-RLP, 2013 WL 6210637, at *9 (D. Hawai`i Nov. 27, 2013) (some alterations in Z.Y.). With the exception of the two portions of the Decision noted supra, the Decision is thorough and careful, and this Court gives increased deference to the remainder of the Decision.

         This Court now turns to the merits of the appeals before it.

         II. Child Find

         The Hearings Officer stated that Petitioners' allegation that the DOE failed to conduct necessary behavioral evaluations required consideration of the IDEA's Child Find provisions. [Decision at 19.] The DOE argues that the Hearings Officer erred in addressing the Child Find issue because Petitioners did not raise it in their Due Process Complaint, i.e. they did not exhaust their administrative remedies at to that issue. This Court has stated:

As a general rule, arguments not raised at an administrative hearing cannot be raised for the first time on appeal to the district court. The Ninth Circuit applied this rule to IDEA appeals in Robb v. Bethel School District No. 403, where it held that, “when a plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies, exhaustion of those remedies is required.” 308 F.3d 1047, 1048 (9th Cir. 2002).[9] Exhaustion may be avoided, however, if “it would be futile or offer inadequate relief, or if the agency has adopted a policy or pursued a practice of general applicability that is contrary to the law.” N.D. v. Hawaii Dep't of Educ., 600 F.3d 1104, 1110 (9th Cir. 2010) (citations and internal quotation marks omitted). None of these exceptions apply in this case.
The Ninth Circuit has also held that review in IDEA cases is specifically limited to the issues raised in the administrative complaint. Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1465 (9th Cir. 1996) (“The scope of the administrative hearing mandated by [former] section 1415(b)(2) is limited to the ‘complaint' raised to obtain the hearing.”). 20 U.S.C. § 1415 codified this holding, providing that “[t]he party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under subsection (b)(7), unless the other party agrees otherwise.” § 1415(f)(3)(B).

James M. ex rel. Sherry M. v. Hawai`i, 803 F.Supp.2d 1150, 1164-65 (D. Haw. 2011) (alterations in James M.) (footnote omitted); see also J.W., 626 F.3d at 451 (“This Court lacks subject matter jurisdiction over claims Student failed to raise in the relevant administrative procedure.”).

         In the instant case, Petitioners' Due Process Complaint did not argue that the DOE violated its Child Find obligations. See AR at 2-8. In addition, there is no evidence in the record that the parties agreed that scope of the due process hearing would include a Child Find violation, in spite of the lack of such an allegation in the Due Process Complaint. The Hearings Officer's review was limited to the issues raised in the Due Process Complaint, and therefore the Hearings Officer erred in addressing the Child Find issue. Because Petitioners failed to raise the Child Find issue in the administrative proceedings, this Court CONCLUDES that the Hearings Officer lacked jurisdiction over the Child Find issue.

         For the sake of completeness, even if Petitioners' Due Process Complaint could be construed as raising a Child Find argument, this Court would reject it on the merits. The IDEA “Child Find” obligation is set forth in 20 U.S.C. § 1412(a)(3)(A), which states:

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

See also 34 C.F.R. § 300.111(a)(1), (c)(1). The Ninth Circuit has stated: “Child-find requires school districts to develop a method to identify, locate, and evaluate students with disabilities who are in need of special education services.” Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d ...

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