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Howard G. v. State

United States District Court, D. Hawaii

May 17, 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 GRANTING PLAINTIFF'S MOTION FOR JUDGMENT GRANTING REIMBURSEMENT OF PRIVATE TUITION

          Derrick K. Watson United States District Judge.

         BACKGROUND

         Plaintiff Joshua G. (“Student”) is a minor child with autism receiving special education and related services pursuant to the Individuals with Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C. §§ 1400, et seq.[1] Student attended Kamali‘i Elementary School (“DOE School #1”) for three years (see Reply in Supp. of Mot. for Relief Pending Appeal, Ex. B [FOF/COL & Decision (Aug. 15, 2011)] at 12, Dkt. No. 49-2 [hereinafter Aug. 15, 2011 Admin. Decision]) until Parents removed him in early October 2009 (see Mot. for J. Granting Reimbursement, Ex. A [FOF/COL & Decision (Sept. 21, 2010)] at 3 (FOF 3), Dkt. No. 93-1 [hereinafter Sept. 21, 2010 Admin. Decision] (Student's last day was “on or about” October 12, 2009); Mot. for Relief Pending Appeal, Ex. C [FOF/COL & Decision (Sept. 10, 2010)] at 7 (FOF 33), Dkt. No. 46-7 [hereinafter Sept. 10, 2010 Admin. Decision] (“Student last attended [DOE School #1] on October 2, 2009.”)). Parents removed Student because they “believed that Student was not learning and Student was losing the skills Student previously learned.” Sept. 21, 2010 Admin. Decision at 3 (FOF 3), Dkt. No. 93-1. They instead began “work[ing] with Student at home” until “February or March 2010, ” when they “procured [private] services” for him. Sept. 21, 2010 Admin. Decision at 3 (FOFs 4, 5), Dkt. No. 93-1.

         Specifically, in March 2010, the privately-owned Center for Autism and Related Disorders (“CARD”) conducted an informal assessment of Student and developed a curriculum for him that was “individualized for Student's specific needs.” Aug. 15, 2011 Admin. Decision at 7, 8-9 (FOFs 44, 48), Dkt. No. 49-2 (noting that the CARD Regional Director “developed a program specifically for Student”); Sept. 10, 2010 Admin. Decision at 7 (FOFs 35, 36), Dkt. No. 46-7; see also Sept. 21, 2010 Admin. Decision at 6 (FOF 36), Dkt. No. 93-1 (referring to this as “Student's Private Home Program”). At that time, “there was no affiliate of CARD in Maui” so Parents formed Autism Management Services a/k/a Maui Autism Center (“AMS”) “as a facility to accommodate other children on the Autism Spectrum to implement CARD methodology.” Reply at 8, Dkt. No. 110 (citing Denise G. Decl. ¶¶ 3, 6, 7, Dkt. No. 110-1) (explaining that “CARD provided consultation and assistance in implementing services for children on the Autism Spectrum” enrolled at AMS)); see Aug. 15, 2011 Admin. Decision at 8 (FOF 47), Dkt. No. 49-2 (“AMS is the subcontractor of Student's CARD services.”). Student “receive[d] his CARD services on the [St. Theresa School] private school campus” beginning in March 2010. Kuwabe Decl., Ex. D [FOF/COL & Decision (Aug. 3, 2011)] at 1, 3 (FOF 3), Dkt. No. 108-5 [hereinafter Aug. 3, 2011 Admin. Decision] (explaining that “CARD has a contract with [AMS] to provide [applied behavioral analysis] services” in Hawaii); Kuwabe Decl., Ex. B [Remanded Decision Subsequent to [June 29, 2012 Order] (Dec. 20, 2012)] at 1, 4 (FOF 2), Dkt. No. 108-3 [hereinafter Dec. 20, 2012 Admin. Decision] (“Student began his CARD program in March 2010 . . . . and received his CARD services on the [St. Theresa School] private school campus.”); cf. Sept. 21, 2010 Admin. Decision at 3 (FOF 5), 6 (FOF 36), Dkt. No. 93-1 (stating that Student's private curriculum was provided “in the home and community settings”).

         Student's most recent Individualized Education Program (“IEP”)[2] at the time of his removal from public school was developed by DOE School #1 on September 14, 2009. See Sept. 10, 2010 Admin. Decision at 4-5 (FOFs 10-15), Dkt. No. 46-7. Parents challenged the September 14, 2009 IEP in a January 28, 2010 Due Process Complaint. See Aug. 15, 2011 Admin. Decision at 12, Dkt. No. 49-2. In late March 2010, during a hearing on Parents' January 28, 2010 Due Process Complaint, Defendant Department of Education (“DOE”) informed the parties that Student's new IEP would be due on April 7, 2010. See Sept. 21, 2010 Admin. Decision at 3 (FOF 9), Dkt. No. 93-1. DOE School #1 subsequently developed a new IEP for Student during an April 6, 2010 meeting (the “April 6, 2010 IEP”). The April 6, 2010 IEP was prepared without Parents and without the “data from Student's Private Home Program about Student's current levels of performance and function.” Sept. 21, 2010 Admin. Decision at 5-6 (FOFs 27-30, 33), 10, Dkt. No. 93-1 (some formatting altered). As a result, Parents challenged the April 6, 2010 IEP in an Impartial Hearing Request on May 6, 2010 (the “May 6, 2010 Due Process Complaint”). See Sept. 21, 2010 Admin. Decision at 1, Dkt. No. 93-1.

         While their challenges to the September 14, 2009 IEP and the April 6, 2010 IEP were pending, Parents moved residences, which effectively moved Student out of the public school district for DOE School #1, and placed him into the district for DOE School #2. See Aug. 15, 2011 Admin. Decision at 3 (FOF 5), Dkt. No. 49-2. “DOE School #2 was not able to implement Student's IEP, ” however, resulting in Student's attendance at DOE School #3 during the Summer 2010 Extended School Year (“ESY”). Aug. 15, 2011 Admin. Decision at 3 (FOF 5), Dkt. No. 49-2. A CARD representative began working directly with Student on June 30, 2010. Sept. 10, 2010 Admin. Decision at 7 (FOF 37), Dkt. No. 46-7.

         Stating that they “were not satisfied with Student's DOE program, ” Parents withdrew Student from DOE School #3 on September 8, 2010 and never re-enrolled him there. See Aug. 15, 2011 Admin. Decision at 3 (FOFs 6, 8-10, 12), Dkt. No. 49-2 (explaining that at the beginning of the 2010-11 school year on or about August 1, 2010, “Student continued to attend the special education . . . program at DOE School #3, ” but Student “was ill and [did] not . . . attend[] school” from “August 24, 2010 to and including September 7, 2010”). The CARD regional director began working with Student in November 2010. Aug. 3, 2011 Admin. Decision at 3 (FOF 4), Dkt. No. 108-5. Student began attending AMS five days a week in early or mid-April 2011. See Aug. 15, 2011 Admin. Decision at 10 (FOFs 51-52), Dkt. No. 49-2; but cf. Aug. 3, 2011 Admin. Decision at 4 (FOF 14), Dkt. No. 108-5 (“From March 2010 to February 2011, Student was the only student at AMS.”).

         Administrative Hearings Officer (“AHO”) Richard A. Young held a two-day evidentiary hearing on the January 28, 2010 Due Process Complaint in early August, 2010. In his September 10, 2010 written decision on the matter, AHO Young concluded that multiple issues with respect to the September 14, 2009 IEP resulted in a denial of free appropriate public education (“FAPE”) to Student, [3]noted that the “CARD program was an appropriate placement” for Student, and declared Parents to be the “prevailing party” in the matter. See Sept. 10, 2010 Admin. Decision at 16-18, Dkt. No. 46-7. Based on these findings, AHO Young “awarded reimbursement for any educational and related expenses incurred from [Student's October 2009 removal from DOE School #1], through the end of 2010 summer ESY, ” and concluded that Parents were “entitled to compensatory education, including any expenses related to Student's placement in the CARD program through the end of 2010 summer ESY.” Sept. 10, 2010 Admin. Decision at 18, Dkt. No. 46-7.

         AHO Haunani H. Alm conducted a formal hearing on the May 6, 2010 Due Process Complaint on August 17, 2010. See Sept. 21, 2010 Admin. Decision at 2- 3, Dkt. No. 93-1. In a written decision filed on September 21, 2010, AHO Alm concluded that Student's April 6, 2010 IEP impeded Student's right to a FAPE under the IDEA . Sept. 21, 2010 Admin. Decision at 12-13, Dkt. No. 93-1. Accordingly, AHO Alm ordered the 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. 93-1. AHO Alm's decision regarding the April 6, 2010 IEP also states, in relevant part, that “the Private Home Program, ” which “Parents procured . . . on or about March 2010, ” is “appropriate for Student.” Sept. 21, 2010 Admin. Decision at 6 (FOF 36), 12, Dkt. No. 93-1.[4]

         Student's father contacted DOE School #3 on September 27, 2010 to request a meeting to develop a new IEP for Student. See Aug. 15, 2011 Admin. Decision at 4 (FOF 15), Dkt. No. 49-2. The meeting to replace the April 6, 2010 IEP, which eventually took place on November 4, 2010, occurred at DOE School #1, and the resulting IEP identified Student's “Current School” as DOE School #1 despite the fact that Student no longer lived in that public school district. See Admin. R., Ex. 3 [Nov. 4, 2010 IEP], Dkt. No. 17-3. Dissatisfied with the November 4, 2010 IEP, Parents filed another complaint and request for impartial due process hearing on November 17, 2010. See Kuwabe Decl., Ex. A [Nov. 17, 2010 Compl.] at 5-6, Dkt. No. 109-1. In the November 17, 2010 Complaint, Parents prayed for an award of “reimbursement . . . for any educational and related expenses incurred from the date of the IEP until the start of the 2011-2012 school year; student is in a private CARD program, ” and they asked the hearings officer to “enter such other and appropriate relief deemed just and necessary by this court.” Nov. 17, 2010 Compl. at 5-6, Dkt. No. 109-1. Following an evidentiary hearing on the November 17, 2010 Complaint, AHO Young issued his decision on August 3, 2011, recommending dismissal and finding that “[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. 108-5.

         Parents initiated the instant lawsuit-appealing AHO Young's August 3, 2011 Administrative Decision (Dkt. No. 108-5) 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 determined “that the evidence failed to demonstrate that the [November 4, 2010] 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 (stating that “a determination on reimbursement” was “premature” in light of the remanded question). AHO Young decided the single issue presented on remand without an evidentiary hearing, finding and concluding 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.” Dec. 20, 2012 Admin. Decision at 3, 12, Dkt. No. 108-3. Based upon this denial of FAPE, and because the August 3, 2011 Admin. Decision found that the CARD program “is an appropriate placement for Student where he is able to make meaningful educational gains, ” AHO Young “recommended that [Parents] be granted reimbursement for the costs of Student's private program from November 4, 2010 through the annual review date of November 4, 2011.” Dec. 20, 2012 Admin. Decision at 4 (FOF 2), 11-12, Dkt. No. 108-3. The DOE appealed the December 20, 2012 Administrative Decision to this Court by initiating a separate lawsuit, Dep't of Educ. v. G., 1:13-cv-00029-DKW-KSC, Dkt. No. 1 (D. Haw. Jan. 17, 2013), which was thereafter consolidated with Judge Ezra's existing case, Howard G., et al. v. DOE et al., 1:11-cv-00523-DAE-BMK (D. Haw. Aug. 25, 2011). See Entering Order, Dkt. No. 31.

         Following a series of motions in this Court and an appeal to the Ninth Circuit Court of Appeals, CA 14-15545 (9th Cir. Mar. 24, 2014), this Court issued a January 29, 2018 Order Affirming 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. See Jan. 29, 2018 Order at 8-11, Dkt. No. 89.[5] After the Court denied Parents' February 25, 2018 Motion for Reconsideration (Dkt. No. 90), Parents filed the instant “Request for Judgment Granting Reimbursement of Private Tuition” on February 27, 2018 (Dkt. No. 93), in which they seek “Reimbursement for J.G.'s Private Placement Retroactive to 09/21/10[.]” Mot. for J. Granting Reimbursement at 16, Dkt. No. 93.

         For the reasons set forth below, the Motion For Judgment Granting Reimbursement (Dkt. No. 93) is GRANTED.

         DISCUSSION

         I. Legal Framework for ...


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