United States District Court, D. Hawaii
HOWARD G., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JOSHUA G.; and JOSHUA G., Plaintiffs,
STATE OF HAWAII, DEPARTMENT OF EDUCATION, KATHRYN MATAYOSHI, IN HER OFFICIAL CAPACITY AS ACTING SUPERINTENDENT OF THE HAWAII PUBLIC SCHOOLS, Defendants.
ORDER DENYING MOTION TO ENFORCE RESOLUTION
Derrick K. Watson, United States District Judge.
the Court is Plaintiffs' April 28, 2017 Motion to Enforce
Resolution Agreement (ECF No. 75). For the reasons set forth
below, the Motion to Enforce is DENIED.
G., a minor child with autism (“Student”), is
eligible to receive special education and related services
pursuant to the Individuals with Disabilities Education Act
of 2004 (“IDEA”), 20 U.S.C. §§ 1400,
et seq. In approximately March 2010, Student began
participating in a program created by the privately owned
Center for Autism and Related Disorders (“CARD”)
for Autism Management Services
(“AMS”). Student's Parents have requested
several due process hearings over the past several years that
have resulted in resolution sessions with the Department of
Education (“DOE”) designed to facilitate
compromise and avoid the need for protracted litigation. The
instant matter involves Parents' sixth due process
complaint, filed November 17, 2010 (see 11/17/10
Compl., Ex. A, H.G. Decl., ECF No. 75-1 at 4-8), in which
they sought reimbursement from the DOE for the cost of
Student's CARD-AMS program.
convened a resolution session on December 2, 2010 (the
“Resolution Session”) to address Parents'
November 17, 2010 complaint. In attendance at the Resolution
Session were Denise Guerin, a DOE representative/facilitator;
JoAnne Higa, principal of Kamalii Elementary School; and
Plaintiff Howard G. (“Father”), who appeared
telephonically along with Parents' attorney, Keith Peck.
See Guerin Decl. ¶ 2, ECF No. 79-1.
parties sharply disagree about what was agreed upon, if
anything, at the Resolution Session. For example, the DOE
represents, via Guerin's declaration:
During the Resolution Session on December 2, 2010, the DOE
and Parent H.G. did not reach any agreement on any matter
being asserted in the administrative proceedings below and,
therefore, there was no separate agreement prepared by the
[DOE]. Furthermore, during the Resolution Session, the [DOE]
did not reach an agreement with Parent H.G. that AMS would be
the stay-put placement for the Student.
Decl. ¶ 5, ECF No. 79-1. In contrast, H.G. states:
On December 2, 2010, the parties settled the issue of
reimbursement of tuition and expenses and stay put for J.G.
at Autism Management Services a/k/a Maui Autism Center from
the date of the [individualized educational plan
(‘IEP')] (November 3, 2010) through the start of
the 2011-12 school year and stay put for approximately 3.5
years, but did not settle any other issues.
Decl. ¶ 5, ECF No. 75-1 at 2. No transcript of the
Resolution Session exists; there is only a two-page
Resolution Session Summary that was contemporaneously
prepared that reflects what transpired during that session.
Resolution Session Summary, Ex. B, H.G. Decl., ECF No. 75-1
at 9-10 [hereinafter Summary].
April 28, 2017, Parents filed the instant motion “to
enforce the Resolution Agreement” that, they argue, was
“reached . . . on December 2, 2010 pursuant to 20
U.S.C. § 1415(f)(1)(B).” Mot. to Enforce ¶ 3,
ECF No. 75. As proof of the existence of a Resolution
Agreement, Parents point to the brief Summary of the December
2, 2010 meeting (ECF No. 75-1 at 9-10), and Father's
declaration, which states that Father understood that two
quasi-agreements were formed at this Resolution Session and
includes a chart of payments allegedly received pursuant to
these agreements (H.G. Decl. ¶ 6, ECF No. 75-1 at 2).
Specifically, Parents contend:
4. As reflected in the Resolution Session Summary, the
parties settled the issue of reimbursement of tuition and
expenses for J.G. at the private program from the November 4,
2010 IEP through the start of the 2011-12 school year and
stay put for approximately 3.5 years, but did not settle any
5. [DOE] made payments in accordance with the Resolution
Agreement at an agreed rate of $14, 062.41 per month covering
the period of ...