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Howard G. v. State, Department of Education

United States District Court, D. Hawaii

October 26, 2017

HOWARD G., INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, JOSHUA G.; and JOSHUA G., Plaintiffs,
v.
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 AGREEMENT

          Derrick K. Watson, United States District Judge.

         Before 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.

         BACKGROUND

         Joshua 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”).[1] 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.

         DOE 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.

         The 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.

         Guerin 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.

         H.G. 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].

         On 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 other issues.
5. [DOE] made payments in accordance with the Resolution Agreement at an agreed rate of $14, 062.41 per month covering the period of ...

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