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 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
Derrick K. Watson United States District Judge.
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.
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).
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.
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.
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. 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.
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.
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.
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.
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