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Howard G. v. State, Department of Education

United States District Court, D. Hawaii

January 29, 2018

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 AFFIRMING THE ADMINISTRATIVE HEARINGS OFFICER'S DECEMBER 20, 2012 DECISION ON ONE-TO-ONE SERVICES, FINDING A DEPRIVATION OF FAPE, AND DENYING WITHOUT PREJUDICE REMEDY REQUESTED IN PLAINTIFFS' REMAND MEMORANDUM

          Derrick K. Watson United States District Judge.

         On November 3, 2016 (Dkt. No. 51), the Ninth Circuit Court of Appeals reversed this Court's February 24, 2014 “Order Reversing the Administrative Hearings Officer's December 20, 2012 Decision” (Dkt. No. 37) and remanded with instructions to consider “whether, after giving substantial weight to the hearing officer's conclusion, J.G. was denied a free appropriate public education (‘FAPE')” under the Individuals with Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C. §§ 1400, et seq. See Ninth Cir. Mem. ¶ 2, Dkt. No. 51. For the reasons set forth below, the portion of the Administrative Hearings Officer's December 20, 2012 Decision determining that Student required one-to-one services (Dkt. No. 46-11) is AFFIRMED, and the Court finds that the failure to provide such services constitutes a denial of FAPE. Parents' request for reimbursement of costs incurred between February 1, 2012 and March 11, 2014 is DENIED WITHOUT PREJUDICE.

         BACKGROUND

         The IDEA was enacted “[t]o ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A). As a condition of federal financial assistance under the IDEA, states must provide such an education to disabled children residing in the state who are between the ages of 3 and 21, inclusive. 20 U.S.C. § 1412(a)(1)(A).

         Plaintiff J.G. (“Student”) is a minor child with autism receiving special education and related services pursuant to the IDEA. Parents removed Student from Kamali‘i Elementary School and began home schooling him in early October 2009. See Mot. for Relief Pending Appeal, Ex. D [FOF/COL & Decision (Sept. 21, 2010)] at FOF 3, Dkt. No. 46-8 [hereinafter Sept. 21, 2010 Admin. Decision]; id., Ex. C [FOF/COL & Decision (Sept. 10, 2010)] at FOF 33, Dkt. No. 46-7 [hereinafter Sept. 10, 2010 Admin. Decision]. In March 2010, Parents procured services for Student through a program created by the privately owned Center for Autism and Related Disorders (“CARD”), via Autism Management Services a/k/a Maui Autism Center (“AMS”). See Admin. R., Ex. 17 [FOF/COL & Decision (Aug. 3, 2011)] at FOF 3, Dkt. No. 15-17 [hereinafter Aug. 3, 2011 Admin. Decision]. A new Individualized Education Program (“IEP”) was then developed for Student on April 6, 2010 at Kamali‘i Elementary, which he had attended for three years.

         Parents challenged the April 6, 2010 IEP on multiple grounds in a Request for Impartial Hearing (“May 6, 2010 Complaint”), which proceeded to formal hearing before Administrative Hearings Officer (“AHO”) Haunani H. Alm on August 17, 2010. In her subsequent written decision, AHO Alm concluded that Student's April 6, 2010 IEP impeded his right to a FAPE under the IDEA . Sept. 21, 2010 Admin. Decision at 12-13, Dkt. No. 46-8. Accordingly, AHO Alm ordered Defendant Department of Education (“DOE”) to “reimburse Parents for Student's educational and related expenses, upon presentation of proper documentation of educational and related expenses, from April 6, 2010 to and including the time that an appropriate IEP is developed for Student with parent participation.” Sept. 21, 2010 Admin. Decision at 12-13, Dkt. No. 46-8; see also Mot. for Relief Pending Appeal, Ex. H [Reimbursement Letter (Oct. 14, 2010)], Dkt. No. 46-12. The September 21, 2010 Administrative Decision also states that “(a) the April 6, 2010 IEP was developed without Parents' participation and is not appropriate; and (b) the Private Home Program is appropriate for Student.” Sept. 21, 2010 Admin. Decision at 12, Dkt. No. 46-8.

         A meeting to replace the April 6, 2010 IEP took place on November 4, 2010. The IEP developed during this meeting (Admin. R., Ex. 3 [Nov. 4, 2010 IEP], Dkt. No. 17-3) provided Student with 1650 minutes of special education per week; 60 minutes of speech-language therapy per week; and 270 minutes of occupational therapy sessions per quarter. See Aug. 3, 2011 Admin. Decision at 11, Dkt. No. 15-17.[1] A November 10, 2010 Prior Written Notice of Department Action by the DOE determined that “[Student]'s program [outlined in the November 4, 2010 IEP] is able to be provided at his neighborhood public school” and explained that “[Student]'s neighborhood school is able to provide the least restrictive environment in order for [Student] to access his education.” Prior Written Notice at 1, Dkt. No. 17-4.

         Dissatisfied with the November 4, 2010 IEP, Parents filed another complaint and request for impartial due process hearing on November 17, 2010 seeking reimbursement from the DOE for the cost of Student's AMS program from the date of the November 4, 2010 IEP to the start of the 2011-12 school year, plus attorney's fees, among other things. See Admin. R., Ex. 1 [Nov. 17, 2010 Compl.], Dkt. No. 15-1. A Resolution Session was convened on December 2, 2010 to address the November 17, 2010 Complaint. See Admin. R., Ex. 5 [Resolution Session Summ. (Dec. 2, 2010)], Dkt. No. 15-5. When no agreement was reached during this resolution session, the matter proceeded to an evidentiary hearing before AHO Young, which was completed on May 26, 2011. See Aug. 3, 2011 Admin. Decision at 3, Dkt. No. 15-17.

         On August 3, 2011, AHO Young issued a decision (Dkt. No. 15-1) recommending dismissal of Parents' November 17, 2010 Complaint because Parents had failed to show that: (1) Student's November 4, 2010 IEP was untimely; (2) the DOE had not used the most current information on Student available to it; (3) the DOE prevented them from participating; (4) the IEP “did not appropriately address [Student]'s need for a transition process between the present program and the proposed DOE program”; (5) DOE did not identify a qualified teacher sufficient to adhere to the requirements of the IDEA; or (6) the IEP “failed to offer [Student] appropriate services to address his need for 1:1 instruction or a program specifically tailored to address Student's behavioral and autism-specific needs.” Aug. 3, 2011 Admin. Decision at 17, Dkt. No. 15-17. AHO Young also found “[b]ased upon the testimonies of Father and the CARD regional director . ., the CARD program is an appropriate placement for Student where he is able to make meaningful educational gains.” Aug. 3, 2011 Admin. Decision at 17, Dkt. No. 15-17.

         Parents initiated the instant lawsuit-appealing AHO Young's August 3, 2011 Administrative Decision (Dkt. No. 15-17) to this District Court-on August 25, 2011. Compl., Dkt. No. 1. In a June 29, 2012 Order Affirming in Part, Vacating in Part and Remanding in Part the Decision of the Administrative Hearings Officer (“June 29, 2012 Order”), Judge Ezra decided “that the evidence failed to demonstrate that the IEP would provide one-to-one instruction” and “expressly remanded for the hearing officer to determine whether [the Student] required it.” June 29, 2012 Order at 30, Dkt. No. 27 (noting that the AHO “only determined that one-to-one services were ‘appropriate'-that is, that a higher level of services was not required, ” but did not determine whether “one-to-one services were in fact required”). With regards to the requested reimbursement, Judge Ezra wrote:

As stated above, the Court has affirmed the Hearings Officer's conclusions as to all of Plaintiffs' claims except for the issue of whether the IEP's lack of one-to-one services constitutes a denial of FAPE, which the Court has remanded to the Hearings Officer. Therefore, a determination on reimbursement is premature.

June 29, 2012 Order at 35, Dkt. No. 27.

         The matter was remanded from Judge Ezra to AHO Young, who decided the single issue presented without an evidentiary hearing. See Mot. for Relief Pending Appeal, Ex. G [Remanded Decision Subsequent to [June 29, 2012 Order] (Dec. 20, 2012)] at 3, Dkt. No. 46-11 [hereinafter Dec. 20, 2012 Admin. Decision] (noting that the parties “agreed that there was no need to submit additional evidence through an evidentiary hearing”). In the December 20, 2012 Administrative Decision, AHO Young found and concluded that

Based upon Student's needs, Student required one-to-one services. In light of Judge Ezra's finding that the November 4, 2010 IEP did not offer one-to-one services, the Hearings Officers determines that the November 4, 2010 IEP was not substantively adequate to address Student's needs and provide Student the opportunity to achieve meaningful educational gains, and denied Student a FAPE; and
Based upon this denial of FAPE, it is recommended that [Parents] be granted reimbursement for the costs of Student's private program from November 4, 2010 through ...

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