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J.G. v. State

United States District Court, D. Hawaii

August 7, 2018

J. G., BY AND THROUGH HIS PARENTS, HOWARD AND DENISE GREENBERG, HOWARD GREENBERG, and DENISE GREENBERG, Plaintiffs,
v.
STATE OF HAWAII, DEPARTMENT OF EDUCATION, DENISE GUERIN, PERSONALLY AND IN HER CAPACITY AS DISTRICT EDUCATION SPECIALIST, and FRANCOISE WHITTENBURG, PERSONALLY AND IN HER CAPACITY AS PRINCIPAL OF LOKELANI INTERMEDIATE SCHOOL, Defendants.

          Derrick K. Watson, United States District Judge.

          ORDER AFFIRMING THE DECEMBER 20, 2017 DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER

         This appeal concerns the administrative hearings officer's (“AHO”) determination of J.G. (“Student”) and Howard and Denise G.'s (“Parents”) request for due process following the issuance of Student's March 16, 2017 Individualized Education Program (“IEP”) for the 2017-18 school year. Because Parents have not shown by a preponderance of the evidence that the AHO's December 20, 2017 decision (Dkt. No. 97-29) should be reversed, the Court AFFIRMS that decision.

         BACKGROUND

         Student, who was fourteen years old at the time of the AHO's December 20, 2017 decision (“Decision”), is eligible for special education and related services pursuant to the Individuals with Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C. §§ 1400, et seq., for Autism Spectrum Disorder (“ASD”), Level 3 (requiring very substantial support) with early language impairment, Anxiety Disorder, and Obsessive-Compulsive Disorder. Decision at 5 (FOF 2), Dkt. No. 97-29 (citing Pet'rs' Admin. Ex. 4 [Confidential BACB Advisory Warning (Sept. 2, 2015)] at 121-22, Dkt. No. 103-5). Student has received these services via Autism Management Services a/k/a Maui Autism Center (“AMS”), a private school owned by Parents, since 2010. Second Am. Compl. (“SAC”) ¶ 11, Dkt. No. 72; see also Decision at 5 (FOF 6), Dkt. No. 97-29 (citations omitted).

         Student's IEP for the 2017-18 school year was developed during a series of IEP meetings on February 22, February 24, March 13, March 15, and March 16, 2017.[1] At least eight individuals-including Parents, Defendant Françoise Wittenburg (Principal of Student's “Home” School, Lokelani Intermediate School), [2] three Department of Education (“DOE”) teachers including Julia Whiteley (then-Special Education Teacher at the Home School and DOE Department Head), an Occupational Therapist, and a Speech-Language Pathologist-attended each IEP meeting. See Pet'rs' Admin. Ex. 8 [Mar. 16, 2017 IEP] at 29-34, Dkt. No. 103-9.[3]

         The resulting March 16, 2017 IEP provides Student with special education services-including one-to-one individual instructional support and “specifically designed instruction in the areas of reading, writing, mathematics, behavior, functional performance, and communication”-occupational therapy, speech and language therapy, transportation, and a variety of other supplementary aids and services, program modifications, and supports. March 16, 2017 IEP at 2 (¶ 10), 26-27 (¶ 21). On the day of the final IEP meeting, Principal Wittenburg led the IEP team in a discussion of options along the LRE continuum, from least-to-most restrictive (see, e.g., Decision at 11-15 (FOFs 58-64), Dkt. No. 97-29 (citations omitted)), until they determined that the IEP could be implemented at DOE's new public separate facility (Pet'rs' Admin. Ex. 10 [Mar. 17, 2017 Prior Written Notice of Dep't Action (“PWN”)] ¶ 3, Dkt. No. 103-11 at 4). Accordingly, Principal Wittenburg “[r]ejected placement at a private separate facility” such as AMS in favor of placement at the less restrictive public separate facility, Po‘okela Maui specialized education center. Mar. 17, 2017 PWN ¶ 3, Dkt. No. 103-11 at 4.[4] At Po‘okela Maui, Student would “participate with disabled peers during all school hours” and would “have opportunities to interact with non-disable[d] peers during community outings.” Mar. 16, 2017 IEP at 28 (¶ 23), Dkt. No. 103-9.

         Because Student “receive[d] educational services in a private setting, [AMS] located in Kihei, HI, ” when the March 16, 2017 IEP was developed, the IEP also provides for the following “transition plan” “[t]o occur prior to and during change of placement”:

Because student had been in private separate facility for some time, a transition plan will be implemented to mitigate any potential harmful impact of him moving to a less restrictive environment and transitioning to a new school. Factors to consider for transition will include new people, new location, self-injurious behaviors, potential regression, access to the community, [and] new program routines.

March 16, 2017 IEP at 2 (¶ 10), 27 (¶ 21), Dkt. No. 103-9.

         The instant matter arises out of Parents' May 5, 2017 amended request for due process, which challenges the DOE's “unilateral decision to change [Student]'s [educational] placement” from AMS to Po‘okela Maui in the March 16, 2017 IEP. Admin. R., Ex. 1 [Pet'rs Addendum to Am. Request for Impartial Due Process Hr'g] at 2, 5, Dkt. No. 97-1 [hereinafter Due Process Compl.]. Parents contend that the March 16, 2017 IEP denied Student a free appropriate public education (“FAPE”), as required by the IDEA, 20 U.S.C. § 141(9)(d)(1)(A), because: the change in placement was “predetermined in the IEP without input from [Parents]”; Parents “knew nothing about the Po‘okela Maui facility and the DOE provided no information regarding the facility” prior to changing Student's placement in the IEP; “independent research by . . . [P]arents indicated that the Po‘okela Maui facility was inadequate to meet [Student's] needs and would not provide him a FAPE”; “the change in [Student's] educational placement from AMS, where he had been for at least 7 years, to Po‘okela Maui violated the IDEA and . . . [P]arents['] procedural safeguards” under it; and “keeping [Student] in his current placement was not even considered by the IEP team.” Due Process Compl. at 3-4, Dkt. No. 97-2.[5] A hearing on this Due Process Complaint was scheduled for October 30, 2017 before AHO Rowena A. Somerville.

         In anticipation of their due process hearing, Parents filed an August 9, 2017 Motion to Establish Burden of Proof, asking the Office of Administrative Hearings to “assign the burden of proof to []DOE as to whether the change in [Student]'s placement from the judicially-approved placement at AMS back to the public school Po‘okela Maui complies with IDEA and is a proper change of placement.” Admin. R., Ex. 11 [Burden of Proof Mot.] at 16, Dkt. No. 97-12. AHO Somerville denied the Burden of Proof Mot. on October 11, 2017. See Admin. R., Ex. 19 [Order Denying Burden of Proof Mot.], Dkt. No. 97-20. In a letter dated September 27, 2017, Parents also requested that AHO Somerville conduct a site visit of AMS prior to ruling on the Due Process Complaint (Admin. R., Ex. 16 [Site Visit Request], Dkt. No. 97-17), but AHO Somerville declined to do so on September 29, 2017 (Admin. R., Ex. 18 [Order Denying Site Visit Request], Dkt. No. 97-19).

         On October 10, 2017, Parents initiated the instant federal lawsuit challenging the Order Denying Burden of Proof Motion and the Order Denying Site Visit Request (collectively “AHO Somerville's Pre-Trial Orders”). Compl., Dkt. No. 1. The same day, Parents also filed a motion before the AHO (Dkt. No. 10-3 at 103-08) seeking to stay further administrative proceedings on the Due Process Complaint “pending resolution of issues on appeal.” Parents next filed a “Motion to Enforce the ‘Stay Put' Rule” in this Court on October 11, 2017, in which they requested an order requiring the DOE “to allow [Student] to remain in and continue to pay for his current educational placement at [AMS] until complete resolution of the issues presently before this Court, including any appeals taken therefrom.” See Mot. to Enforce at 4, Dkt. No. 7. Parents filed their First Amended Complaint (Dkt. No. 9) and a Motion for TRO (Dkt. No. 10) on October 19, 2017. In the latter, Parents sought review of AHO Somerville's Pre-Trial Orders and asked the Court to enjoin administrative proceedings on the Due Process Complaint scheduled for October 30, 2017. See TRO Mot. ¶ 6, Dkt. No. 10. Finding both of AHO Somerville's Pre-Trial Orders to be “clearly interlocutory, ” this Court denied the Motion for TRO on October 25, 2017. Entering Order (Oct. 25, 2017), Dkt. No. 37 (citing In re Merle's Inc., 481 F.2d 1016, 1018 (9th Cir. 1973)). Parents appealed the October 25, 2017 Entering Order to the Ninth Circuit Court of Appeals on October 26, 2017. See Notice of Interlocutory Appeal, Case No. 17-17190 (9th Cir. Oct. 25, 2017), Dkt. No. 38.[6]This Court denied Parents' October 26, 2017 “Motion to Stay Proceedings Pending [Interlocutory] Appeal” (Dkt. No. 39). See Entering Order (Oct. 26, 2017), Dkt. No. 40. After the AHO filed the Decision on December 20, 2017, Parents filed the SAC on February 22, 2018, raising fifteen causes of action and seeking monetary, declaratory, and injunctive relief. SAC, Dkt. No. 72.

         The administrative hearing on Parents' May 5, 2017 Due Process Complaint began on October 30, 2017 and lasted for four days. See Tr. of Proceedings (Oct. 30, 2017), Dkt. No. 99; Tr. of Proceedings (Oct. 31, 2017), Dkt. No. 100; Tr. of Proceedings (Nov. 1, 2017), Dkt. No. 101; Tr. of Proceedings (Nov. 2, 2017), Dkt. No. 102. In her December 20, 2017 decision, AHO Somerville upheld the placement decision of Po‘okela Maui in Student's March 16, 2017 IEP, concluding that Parents had “not met their burden and ha[d] not shown procedural or substantive violations of the IDEA denying Student a FAPE.” Decision at 32, Dkt. No. 97-29. In support of this holding, the Decision contains the following conclusions of law:

The Hearings Officer finds the DOE witnesses to be credible. The Hearings Officer further finds that the DOE did not block Parents' participation in the March 16, 2017 IEP meeting or predetermine Student's placement. The Hearings Officer further finds that the DOE offered Student a FAPE that was appropriately designed to convey student a meaningful educational benefit.
. . . .
The IEP was specifically tailored to meet Student's unique needs and provide him with a meaningful educational benefit and to make progress, and the IEP can be implemented at the [public separate facility] with a transition plan.
. . . .
The private facility [(AMS)] offers Student far less opportunity to socialize with non-disabled peers [than] the [public separate facility (Po‘okela Maui)]. The Hearings Officer finds that the IEP team had an adequate discussion regarding LRE. The Hearings Officer further finds that the [public separate facility], with a transition plan, is the LRE for Student.

         Decision at 25, 32, Dkt. No. 97-29. AHO Somerville also found that, because Parents did not show[] that the March 16, 2017 IEP denied Student a FAPE[, ]” “the issue of appropriateness of the private facility does not need to be addressed.” Decision at 32, Dkt. No. 97-29.

         In their Second Amended Complaint (Dkt. No. 72), Parents ask the Court to vacate AHO Somerville's Pre-Trial Orders (“Counts I & II”; SAC ¶¶ 64-94) and Decision (SAC ¶¶ 95-190). In Counts II-IV of the SAC, Parents allege that the Decision contains errors of law regarding “Burden of Proof, ” “FAPE Standard, ” “[LRE]/ Placement, ” “Transition Services, ” and “Stay Put” (“Count III”; SAC

         ¶¶ 95-138); mixed errors of law and fact regarding “Parental Participation/ Predetermination, ” “[LRE], ” and “Transition Services” (“Count IV”; SAC ¶¶ 139- 76); and errors of fact that allegedly contributed to the Decision's legal errors (“Count V”; SAC ¶¶ 177-80). Parents assert that the March 16, 2017 IEP constitutes a “Denial of FAPE” to Student (“Count VI”; SAC ¶¶ 181-90), among other things. The instant dispute relates to Counts I-VI of the SAC.[7] See, e.g., Mem. of Law-Pls.' Opening Br. on Cts. 1-6 of SAC, Dkt. No. 123 [hereinafter OB].

         On April 5, 2018, the Court heard oral arguments on the Motion to Enforce the “Stay Put” Rule (Dkt. No. 7) and other motions in Parents' related cases.[8] See EP, Dkt. No. 106. Following this hearing, the parties entered a “Stipulation Regarding Obligation Under 20 U.S.C. § 1415(j) (‘Stay Put') with Respect to J.G.'s Placement” on April 20, 2018 (“Stay Put Stipulation”), in which they stipulate and agree that-“J.G.'s stay put placement with respect to the underlying administrative proceeding, DOE-SY1617-067A, and the current judicial proceeding . . . is [AMS]”; J.G.'s stay put placement is “based upon” the February 29, 2016 IEP; this placement “shall remain during the pendency of this current judicial proceeding through and including final resolution of and all appeals of the IDEA claims”; and the DOE “shall abide by the stay put placement pursuant to the IDEA.” Stay Put Stipulation at 2, Dkt. No. 118. The parties also filed a stipulation (Dkt. No. 114) dismissing with prejudice all claims against the Office of Administrative Hearings and against AHO Somerville in her capacity as AHO on April 16, 2018.

         Parents appeal from the December 20, 2017 Decision that upheld the March 16, 2017 IEP, with the Court hearing oral argument on July 20, 2018. See EP, Dkt. No. 138. The instant disposition follows.

         LEGAL STANDARDS

         I. IDEA Overview

         “The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to public education and providing financial assistance to enable states to meet their educational needs.” Hoeft ex rel. Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310 (1988)). It ensures that “all children with disabilities have available to them a free appropriate public education [FAPE] 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).

         Under the IDEA, FAPE means special education and related services that: (a) “have been provided at public expense, under public supervision and direction, and without charge”; (b) “meet the standards of the State educational agency”; (c) “include an appropriate preschool, elementary school, or secondary school education in the State involved”; and (d) “are provided in conformity with the individualized education program . . . .” 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17; Haw. Admin. R. § 8-60-2. “A FAPE is accomplished through the development of an IEP for each child.” Laddie C. ex rel. Joshua C. v. Dep't of Educ., 2009 WL 855966, *2 (D. Haw. Mar. 27, 2009) (citing Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993), cert. denied, 513 U.S. 825 (1994)).

         The IDEA guarantees “procedural safeguards with respect to the provision of a [FAPE]” to “children with disabilities and their parents.” 20 U.S.C. §§ 1415(a), (b)-(h). For example, parents of a disabled child who claim violations of the IDEA “with respect to any matter relating to . . . educational placement of the child[] or the provision of a free appropriate public education to such child” can file a complaint with a due process hearing officer under 20 U.S.C. § 1415(b)(6)(A). Hopewell Valley Reg'l Bd. of Educ. v. J.R., 2016 WL 1761991, *3 (D.N.J. May 3, 2016) (citing S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 257 (3d Cir. 2013)). Moreover, “wherever a complaint has been received under subsection (b)(6) or (k) of this section, the parents involved in such complaint shall have an opportunity for an impartial due process hearing” to be “conducted by the State educational agency” at issue-here, the DOE. 20 U.S.C. § 1415(f)(1)(A).

         II. District Court Review

         “Any party aggrieved by the findings and decision” made pursuant to an administrative hearing under the IDEA “shall have the right to bring a civil action with respect to the complaint presented . . . in a district court of the United States . . . .” 20 U.S.C. § 1415(i)(2)(A). When a party files an action challenging an administrative decision under the IDEA, the district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court deems is appropriate.” 20 U.S.C. § 1415(i)(2)(C); see Ojai Unified, 4 F.3d at 1471. The party challenging the administrative decision bears the burden of proof. See Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007); J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010) (stating that the challenging party must show, by a preponderance of the evidence, that the decision of the hearings officer should be reversed); Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1498 (9th Cir. 1996).

         In reviewing administrative decisions, the district court must give “due weight” to the AHO's judgments of educational policy. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009); Michael P. v. Dep't of Educ., 656 F.3d 1057, 1066 (9th Cir. 2011) (quoting B.S., 82 F.3d at 1499). However, the district court has the discretion to determine the amount of deference it will accord the administrative ruling itself. J.W., 626 F.3d at 438 (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)). In reaching this determination, the court should consider the thoroughness of the hearings officer's findings, increasing the degree of deference where said findings are “thorough and careful.” Michael P., 656 F.3d at 1066; L.M., 556 F.3d at 908 (quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)); cf. Cty. of San Diego v. Cal. Special Educ. Hr'gs Office, 93 F.3d 1458, 1466-67 (9th Cir. 1996) (explaining that the district court should give “substantial weight” to the decision of the hearings officer when the decision “evinces his [or her] careful, impartial consideration of all the evidence and demonstrates his [or her] sensitivity to the complexity of the issues presented” (citation and quotation marks omitted)). Further, the amount of deference to be given to an AHO's decision is, in part, influenced by whether the hearings officer's findings are based on credibility determinations of the testifying witnesses. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 n.4 (3d Cir. 2006); see also B.S., 82 F.3d at 1499 (citations omitted). Such deference is appropriate because “if the district court tried the case anew, the work of the hearing officer would not receive ‘due weight,' and would be largely wasted.” Wartenberg, 59 F.3d at 891.

         “[T]he ultimate determination of whether an IEP was appropriate, ” however, “is reviewed de novo.” A.M. ex rel. Marshall v. Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing Wartenberg, 59 F.3d at 891).

         DISCUSSION

         The Court AFFIRMS the Decision of the AHO, holding that the March 16, 2017 IEP did not deny Student a FAPE.

         I. FAPE Standard

         To provide a free appropriate public education in compliance with the IDEA, a state educational agency receiving federal funds must evaluate a student, determine whether that student is eligible for special education, and formulate and implement an IEP. 20 U.S.C. § 1414(d)(1)(A) (“The term ‘individualized education program' or ‘IEP' means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.”)). The IEP is to be developed by an “IEP team” composed of, inter alia, school officials, parents, teachers and other persons knowledgeable about the child.

         To determine whether a student has been offered a FAPE, the Supreme Court of the United States has established a two-part test, which examines: (1) whether the state has complied with the procedural requirements set forth in the IDEA; and (2) whether the IEP developed through the Act's procedures is reasonably calculated to enable the child to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). “Procedural flaws in the IEP process do not always amount to the denial of a FAPE.” L.M., 556 F.3d at 909 (citations omitted). Rather, “[a] procedural violation denies a free appropriate public education if it results in the loss of an educational opportunity, seriously infringes the parents' opportunity to participate in the IEP formulation process or causes a deprivation of educational benefits.” J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2009) (citing N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1208 (9th Cir. 2008)). Additionally, the “educational benefit[]” that the child's IEP “is reasonably calculated to enable the child to receive” must be more than de minimus. Endrew F. v. Douglas County School District, 137 S.Ct. 988 (2017). The IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Id. at 1001; Blake C. ex rel. Tina F. v. Haw. Dep't of Educ., 593 F.Supp.2d 1199, 1206 (D. Haw. 2009) (holding that the IEP must be tailored to the unique needs of the child and reasonably designed to produce benefits that are “significantly more than de minimus, and gauged in relation to the potential of the child at issue”).

         II. AHO Somerville's Pre-Trial Orders

         AHO Somerville's Pre-Trial Orders denying Parents' Motion to Establish Burden of Proof and Parents' informal Site Visit Request are AFFIRMED.

         A. Bu ...


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