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J.T. v. Department of Education

United States District Court, D. Hawaii

May 31, 2018

J.T., by and through his parents Renee and Floyd T., Plaintiffs,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAI`I, Defendant.

          ORDER AFFIRMING IN PART AND VACATING IN PART HEARINGS OFFICER'S ORDER DATED SEPTEMBER 12, 2011

         On August 14, 2017, the Ninth Circuit issued its memorandum disposition reversing this Court's May 31, 2012 Order Reversing in Part and Remanding Hearings Officer's Order Dated September 12, 2011[1] (“5/31/12 Order”) and remanding the case for further proceedings (“Memorandum Disposition”). [Dkt. no. 27, 116.[2] On October 9, 2017, Plaintiffs J.T. (“Student”), by and through his parents Renee and Floyd T. (collectively “Plaintiffs”), [3] filed their Opening Brief on Remand (“Opening Brief”). [Dkt. no. 125.] Defendant Department of Education, State of Hawai`i (“Defendant” or “the DOE”) filed its Answering Brief on November 13, 2017, and Plaintiffs filed their Reply Brief on Remand (“Reply Brief”) on November 27, 2017. [Dkt. nos. 127, 128.] This matter came on for oral argument on hearing on December 11, 2017. On January 12, 2018, Plaintiffs and Defendants filed their respective supplemental documents. [Dkt. nos. 132, 133.] The 9/12/11 Decision is hereby affirmed in part and vacated in part for the reasons set forth below. Specifically, this Court concludes that: Student was denied a Free Appropriate Public Education (“FAPE”); his placement at Loveland Academy (“Loveland”) was appropriate; and a partial reimbursement award is warranted under the circumstances of this case. Defendant is ordered to reimburse Plaintiffs $61, 137.47 under 20 U.S.C. § 1412(a)(10)(C)(ii) and $12, 187.61 under 20 U.S.C. § 1415(i)(2)(C)(iii), for a total award of $73, 325.08.

         BACKGROUND

         The factual and administrative background of this case, culminating in the 9/12/11 Decision, is set forth in the 5/31/12 Order, and only the background relevant to the issues in the Ninth Circuit's remand will be reiterated in this Order.[4] In the 5/31/12 Order, this Court:

• affirmed the Hearings Officer's ruling that the DOE denied Student a FAPE, as required under the Individuals with Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C.§ 1400, et seq., by excluding Mother from the May 29, 2009 Individualized Education Program (“IEP”) team meeting; 2012 WL 1995274, at *22;
• reversed the Hearings Officer's ruling that the DOE's failure to include Mother in the March 3, 2010 IEP team meeting was not a denial of FAPE; id. at *23-24; and
• concluded the DOE denied Student a FAPE by disregarding Mother's concerns based on observations of Student outside of school and by disregarding a neuropsychological evaluation by Peggy Murphy-Hazzard, Psy.D., dated February 25, 2009 (the “Murphy-Hazzard Report”), [5] id. at *24-26.

         The Ninth Circuit's Memorandum Disposition did not disturb these rulings. Following the remand from the Ninth Circuit, the issues before this Court are: 1) “whether [Student] has demonstrated that Loveland was a ‘proper placement'”; and 2) whether, in this Court's “‘broad discretion[]' to consider ‘all relevant factors, ' . . . reimbursement is appropriate.” 695 Fed.Appx. at 228. Plaintiffs seek reimbursement of: $244, 549.86 under 20 U.S.C. § 1412(a)(10)(C)(ii) for Loveland tuition incurred during the period from November 10, 2010 to July 31, 2012; and $48, 750.42 under 20 U.S.C. § 1415(i)(2)(C)(iii) for the cost of Loveland's assessment and preparation of his education plan incurred during the period from July 6, 2010 to November 10, 2010 (“Diagnostic Period”). [Opening Brief at 17-18.]

         DISCUSSION

         I. Whether Loveland was a Proper Placement

         In the Memorandum Disposition, the Ninth Circuit stated:

A placement is proper if it is “specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” C.B. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011). . . .
At the “proper placement” stage, the district court need only consider whether, at the time of enrollment, the unilateral placement was “reasonably calculated” to meet the student's needs. [Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).] For this inquiry, relying on hindsight is inappropriate. See id. . . .

Id.

         Student officially enrolled at Loveland in November 2010. Mem. Dispo., 695 Fed.Appx. at 228. At the May 17, 2011 administrative hearing, John Loveland, Loveland's clinical director, described Loveland as “a day treatment center for mental health” that “is accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF)” and the National Independent Private School Association. [9/12/11 Decision at 32-33 (AR at 413-14).] At the time of the hearing, Loveland and “maybe only two other facilities on Oahu” had CARF accreditation. [Id. at 32 (AR at 413).] The Hearings Officer found that Loveland's academic classes are based on DOE standards, and Loveland students can transfer their academic credits to a DOE school to obtain a diploma. [Id. at 33 (AR at 414).]

         On May 26, 2010, Mother informed the DOE that she was considering placing Student at Loveland. [Pets.' Exh. 10 (various correspondence), AR at 140 (handwritten letter stating, “Parent will place [Student] at Loveland Academy at state expense or she will be put in a position to file administrative due process hearing.”).[6] Prior to that point, Mother attempted to inform Student's IEP team of her concerns based on her observations of Student at home, but the IEP team neither incorporated her concerns into Student's IEPs nor offered to conduct evaluations of Student until the IEP that was developed after meetings on May 26, 2010 and June 22, 2010 (“combined June 2010 IEP”), [7] i.e. after Mother informed the DOE that she was considering placing Student at Loveland. Id. Further, although Mother provided the IEP team with a copy of the Murphy-Hazzard Report in March or April 2009, id. at *2, the IEP team discounted the report and failed to address the mental-health and communication issues raised in the report. Id. at *26. Prior to Student's official enrollment, Loveland performed a Mental Health Assessment and a Speech Language Therapy Assessment. [Pets.' Exh. 18, AR at 247-65 (Mental Health Assessment July/August/September 2010); Pets.' Exh. 27, AR at 330-52 (Speech Language Therapy Assessment, dated 9/5/10).] Thus, Loveland assessed Student in the areas of concern the DOE failed to address while Student was attending Kalei`opu`u Elementary School (“Kalei`opu`u”).

         Loveland had a Transdisciplinary Team Treatment Plan (“Transdisciplinary Plan”), a Functional Behavior Assessment and Behavior Support Plan (“FBA/BSP”), and an Individualized Day Treatment Academic Program (“Academic Program”) for Student. [Pets.' Exh. 15 (Transdisciplinary Plan), AR at 208-29; Pets.' Exh. 17 (FBA/BSP), AR at 232-46; Pets.' Exh. 22 (Academic Program), AR at 275-95.] However, all of these were either prepared or revised in April 2011, i.e. after Student had been officially enrolled at Loveland for several months. The administrative record does not contain the versions of these documents that were in existence at the time at the time of Student's enrollment, which is the relevant point for the proper placement issue. However, the Hearings Officer found Transdisciplinary Plan had “mental health goals based on discussions at treatment team meetings, discussion with Parents, and individual discussions with staff, ” and these goals were “designed to address the mental health deficits observed during the diagnostic period and the red flags observed or reported by others.” [9/12/11 Decision at 39 (AR at 420) (emphasis added).] Although the lack of records showing the plans and programs in place on the date of Student's official enrollment is concerning, it can be reasonably inferred that the results of the mental-health and speech-language assessments Loveland conducted prior to Student's enrollment were incorporated into plans and programs that were in place at the time of his enrollment.[8]

         This Court concludes that, at the time of Student's official enrollment at Loveland, the unilateral placement was “reasonably calculated” to meet Student's needs. See Adams, 195 F.3d at 1149. Thus, Loveland was a proper placement for Student at the time of his official enrollment in November 2010.

         II. Whether Reimbursement is Appropriate

         Because of the DOE's violations of the IDEA while Student was attending Kalei`opu`u, and because Loveland was a proper placement for Student, Plaintiffs have met the minimum requirements to obtain reimbursement for their unilateral placement of Student at Loveland. See C.B., 635 F.3d at 1159. This Court must now “exercise its ‘broad discretion' and weigh ‘equitable considerations' to determine whether, and how much, reimbursement is appropriate.” See id. (quoting Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361 (1993)).

         The United States Supreme Court has stated:

When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district's opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child's private education is warranted. . . .

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (emphasis added). Plaintiffs emphasize Forest Grove involved a § 1415(i)(2)(C)(iii) request for reimbursement, while Plaintiffs seek reimbursement both under § 1415(i)(2)(C)(iii) and under § 1412(a)(10)(C)(ii). Plaintiffs argue that, in reviewing their § 1412(a)(10)(C)(ii) reimbursement request, this Court is limited to considering the factors listed in § 1412(a)(10)(C)(iii), which states:

         The cost of reimbursement described in clause (ii) may be reduced or denied-

(I) if-
(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa);
(II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.

         Plaintiffs' argument is rejected because nothing in Forest Grove limits the consideration of “all relevant factors” to cases involving § 1415(i)(2)(C)(iii) reimbursement requests. Further, the Ninth Circuit remanded the instant case for this Court “to consider ‘all relevant factors, ' when determining if reimbursement is appropriate.” Mem. Dispo., 695 Fed.Appx. at 228 (quoting Forest Grove, 557 U.S. at 247, 129 S.Ct. 2484). This Court will therefore consider “all relevant factors” in considering both Plaintiffs' § 1415(i)(2)(C)(iii) request for reimbursement and their § 1412(a)(10)(C)(ii) request.[9]

         The Ninth Circuit has recognized that the following are among “all relevant factors in determining whether to grant reimbursement and the amount of the reimbursement”: notice provided to the school district prior to unilateral private placement; “the existence of other, more suitable placements[;] the effort expended by the parent[s] in securing alternative placements”; “the general cooperative or uncooperative position of the school district”; and whether the student's parents chose the private placement for reasons unrelated to the student's disabilities. Forest Grove Sch. Dist. v. T.A., 523 F.3d 1078, 1088-89 (9th Cir. 2008) (“Forest Grove I”) (some alterations in Forest Grove I) (some citations and quotation marks omitted).[10]Further, “a student's lack of progress is an equitable consideration the district court has discretion to weigh.” Mem. Dispo., 695 Fed.Appx. at 228.

         A. Supplemental Evidence

         Because the administrative record only contained materials relevant to Student's progress until May 2011, this Court granted Plaintiffs' request for leave to supplement the record, pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii), [11] and ordered both parties to submit supplemental documents. [EO: Court Order to Supplement the Record, filed 12/14/17 (dkt. no. 131) (“12/14/17 EO”).] The 12/14/17 EO stated:

this Court will consider documents prepared during - or within a reasonable time after - Student's attendance at Loveland (“Supplemental Documents”). Examples of the Supplemental Documents include report cards or other evaluations/assessments by Loveland, as well as reports prepared by Defendant based on its evaluations of Student conducted while he was attending Loveland. This Court finds that the Supplemental Documents constitute “additional evidence” for purposes of § 1415(i)(2)(C)(ii). Testimony about the Supplemental Documents and testimony ...

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