United States District Court, D. Hawaii
DEPARTMENT OF EDUCATION, STATE OF HAWAI‘I, and CHRISTINA M. KISHIMOTO, in her official capacity as Superintendent of the Hawai‘i Public Schools, Plaintiffs-Appellants/ Counterclaim Defendants,
L.S., by and through her Mother, C.S., Defendants-Appellees/ Counterclaimants.
ORDER AFFIRMING IN PART AND REVERSING IN PART
ADMINISTRATIVE HEARING OFFICER'S FINDINGS OF FACT,
CONCLUSION OF LAW AND DECISION
A. OTAKE UNITED STATES DISTRICT JUDGE
Individuals with Disabilities Education Act
(“IDEA”) appeal, brought by the Hawai‘i
Department of Education (“DOE”), seeks reversal
of the Findings of Fact, Conclusions of Law and Decision (the
“Decision”) issued in administrative case number
DOE-SY1718-028 by the Administrative Hearings Officer
(“AHO”) on May 14, 2018. The AHO concluded that
DOE denied L.S. (“Student”) a free and
appropriate public education (“FAPE”) under the
IDEA and was required to reimburse Student's mother
(“Parent”) for the cost of a private education.
Student and Parent (collectively “Petitioners”)
have cross-appealed, seeking to overturn the Decision on
several issues decided in DOE's favor. The Court AFFIRMS
the AHO's conclusion that DOE denied Student a FAPE but
REVERSES the award of full tuition reimbursement and REMANDS
the case for the AHO to enter findings and a decision
regarding the reasonableness of the requested reimbursement,
and to calculate a new reimbursement award consistent with
is an eighteen-year-old with Autism Spectrum Disorder Level
II; depression and anxiety; and rapid-onset obesity with
hypothalamic dysregulation, hypoventilation, and autonomic
dysregulation, referred to as ROHHAD. ECF No. 2-1 at 6;
Admin. Hr'g Tr. at 24:17-23. ROHHAD is a rare syndrome
that affects the autonomic nervous and endocrine systems. ECF
No. 2-1 at 4. Student has a below-average IQ and is
developmentally immature. Id. at 6. Her autism is
considered moderate and it impacts her cognition.
Id. at 6. She exhibits defiant behavior and
aggression, such as cursing, yelling, and name calling.
Id. at 8.
to December 2016, Student attended public school and had an
IEP covering the school year from August 2016 to August 2017
(“2016 IEP”). See ECF No. 10-4
[DOE's Admin. Hr'g Ex. 3] at 32-45. The 2016 IEP
provided Student with special education classes, counseling,
and transportation. Id. at 43. It also provided for
extended school year services (“ESY”) of four
hours per day whenever there was a break in her regular
special education program for more than two weeks, such as
during school breaks, to help prevent regression of learned
information and skills. Id. The 2016 IEP included an
assessment of Student's abilities in English and math, as
well as her social, emotional, and behavioral skills.
Id. at 33-34. It listed annual goals and measurable
objectives in English, math, self-sufficiency (cooking and
shopping), and social behavior, including reducing her
opposition to instruction. Id. at 36-42. It also
stated that Student has a separate Behavioral Support Plan
(“BSP”) and an Emergency Action Plan.
Id. at 43.
stopped attending public school in December 2016. ECF No. 2-1
at 11. Although the record is unclear, it appears that
Student stopped attending in part because of an incident when
she became violent on a school bus and was arrested.
See Admin. Hr'g Tr. at 14:1-14. On January 23,
2017, Parent filed a complaint against DOE and requested an
impartial due process hearing. ECF No. 10-2 [DOE's Admin.
Hr'g Ex. 1] at 1. While the administrative hearing
complaint was pending, Parent sought the help of Dr. Karen
Tyson, a private clinical psychologist. Dr. Tyson performed a
psychological evaluation on Student and designed a
personalized therapeutic program for her (“the Tyson
Program”). ECF No. 2-1 at 11. Student began attending
the Tyson Program in May 2017. Id.
Parent settled the January 2017 complaint by agreeing that
DOE would pay for two months of the Tyson Program, through
July 2017. ECF No. 10-2 [DOE's Admin. Hr'g Ex. 1] at
1. The agreement also required DOE and Parent meet before the
new schoolyear to create a new IEP for Student. Id.
at 2. It also provided Parent with reimbursement for
transporting Student to and from the Tyson Program.
7, 2017, DOE emailed Parent to schedule the IEP meeting on
July 26 or 27, 2017. ECF No. 10-7 [DOE's Admin. Hr'g
Ex. 6] at 137; ECF No. 2-1 at 11. Parent responded to the
email on July 8, 2017, accusing DOE of delaying the meeting
too long, but Parent did not accept the dates proposed. ECF
No. 2-1 at 11. DOE sent a follow-up certified letter
proposing the same dates. Id. Both the email and the
follow-up letter requested that Parent consent to DOE's
observation of Student at the Tyson Program, and to allow DOE
to contact Dr. Tyson to discuss Student's disability and
needs, as it would be “useful in determining
appropriate placement and/or programming to support
[Student's] success at school.” ECF No. 10-7
[DOE's Admin. Hr'g Ex. 6] at 137-38. DOE sent another
certified letter on July 19, 2017, proposing the IEP meeting
for July 26 or August 1, 2017, and again requesting consent
to contact Dr. Tyson and invite her to the IEP meeting.
Id. at 144. Parent did not respond. ECF No. 2-1 at
12. DOE then sent an email and another certified letter on
August 1, 2017, proposing the IEP meeting for August 2 or 7,
2017, and again seeking permission to contact Dr. Tyson and
invite her to the IEP meeting. ECF No. 10-7 [DOE's Admin.
Hr'g Ex. 6] at 150-51. DOE requested that the IEP meeting
be held before the school year began. Id. The letter
explained that the new school year began on August 8, 2017,
and the prior IEP expired on August 11, 2017. Id.
requested to hold the IEP meeting on August 14, 2017.
Id. at 158. On August 8, 2017, DOE sent a letter to
Parent confirming the IEP meeting date of August 14, and
again seeking consent to contact Dr. Tyson and to invite her
to the IEP meeting. Id. For reasons unclear in the
record, the August 14 meeting was then rescheduled to August
21, 2017. Id. at 164. On August 17, 2017, however,
DOE sent a letter to Parent cancelling the August 21 meeting
because Parent had not provided consent to contact Dr. Tyson.
Id. at 164. The letter stated that Dr. Tyson's
input regarding Student was “essential for [DOE] to
review and consider when developing an appropriate program
and placement for [Student].” Id. The letter
again sought consent and stated that DOE would propose
additional meeting dates. Id.
provided DOE with the requested consent forms on August 17,
2017. Id. at 169. DOE then contacted Dr. Tyson to
request permission to observe Student, but Dr. Tyson refused
its observation request on the grounds that DOE had not yet
paid for Student's tuition under the settlement
agreement. Id. at 171; Admin. Hr'g Tr. 109:4-25;
see also ECF No. 2-1 at 12-13.
September 1, 2017, DOE sent a certified letter to Parent
scheduling the IEP meeting for September 6, 2017. ECF No.
10-7 [DOE's Admin. Hr'g Ex. 6] at 169. Parent,
however, did not appear for the IEP meeting, and could not be
contacted by phone. ECF No. 10-7 [DOE's Admin. Hr'g
Ex. 6] at 173. DOE sent a letter to Parent on September 15,
2017, rescheduling the IEP meeting for September 19, 2017.
testified that she was not provided a draft IEP prior to the
September 19, 2017 IEP meeting, but the Decision found that
Parent did receive a draft. Id.; ECF No. 2-1 at 13;
ECF No. 11-3 [Pet'rs' Ex. No. 2]. However, DOE never
sent Parent the BSP, which the IEP referenced. See
Admin. Hr'g Tr. 210:12-23, 248:17-24, 366:10-367:17,
372:6-10. The Decision also found that Parent had falsely
testified that she never received letters from DOE regarding
scheduling of the IEP meeting. ECF No. 2-1 at 12,
meeting was finally held on September 19, 2017. Parent and
her attorney attended, as well as a DOE special education
teacher, a behavioral health specialist, the general
education teacher, the district's student services
coordinator, a health aide, a resource teacher, an education
specialist, the public-school principal, the DOE attorney,
and a Department of Health representative. Id. at
13. Dr. Tyson was not present. Dr. Tyson testified that
neither Parent nor DOE invited her to attend. See
Admin. Hr'g Tr. 77:10-17.
record does not make clear what occurred during the IEP
meeting. Parent testified that the only input she provided
during the meeting was to share examples of behavioral issues
Student had at the Tyson Program, and that Student remained
impulsive, although with less frequency. See ECF No.
10-4 [DOE's Admin. Hr'g Ex. 3] at 59; Admin. Hr'g
Tr. 213:23-214:5. Parent also testified, however, that she
voiced concerns over the IEP's listed goals for Student,
although she could not remember what concerns she raised.
Admin. Hr'g Tr. 225:5-11. Parent also testified that she
expressed concern regarding Student's transition back to
public school, but that DOE said it would discuss
transitioning services in a subsequent meeting. Admin.
Hr'g Tr. 182:25-183:10. The Decision did not make factual
findings regarding what was said at the IEP meeting, or what
input or concerns Parent and her attorney raised.
after the IEP meeting, DOE mailed Parent a “proposed
transition plan for [Student's] return to [public high
school].” ECF No. 10-7 [DOE's Admin. Hr'g Ex.
6] at 196-97. The proposed transition plan specified two
half-days of academic and life-skills sessions prior to the
start of classes. Id. DOE's letter sought input
from Parent on the proposed transition plan, but Parent never
provided input and never responded to DOE's request for
another meeting. See ECF No. 10-7 [DOE's Admin.
Hr'g Ex. 6] at 196; Admin. Hr'g Tr. at 209:13- 21,
251:25-252:9. DOE sent Parent the finalized IEP for the
2017-2018 school year (“2017 IEP”) on September
26, 2017. ECF No. 10-7 [DOE's Admin. Hr'g Ex. 6] at
2017 IEP expanded upon the 2016 IEP by adding several new
special education services, such as applied behavior
analysis, use of visual aids, and multi-sensory presentation
of information. Compare ECF No. 10-4 [DOE's
Admin. Hr'g Ex. 3] at 43 with Id. at 68. It also
provided that Student would “follow the behavior
support plan” daily. ECF No. 10-4 [DOE's Admin.
Hr'g Ex. 3] at 68. A BSP was drafted but was not
included with the 2017 IEP. See ECF No. 10-5
[DOE's Admin. Hr'g Ex. 4] at 74-81.
did not return to public school. Instead, Student remained at
the Tyson Program. On January 18, 2018, Parent requested an
administrative hearing, arguing that the 2017 IEP denied
Student a FAPE and seeking reimbursement for all Tyson
Program tuition costs. See ECF No. 9-1. The
Administrative hearing was held on April 20 and 23, 2018.
Admin. Hr'g Tr. at 1, 242. The Decision found that DOE
denied Student a FAPE and ordered reimbursement in the amount
of $155, 493.31 plus taxes for approximately eight months of
tuition at the Tyson Program. ECF No. 2-1 at 38-44. The
Decision also found that Parent had unreasonably delayed the
IEP meeting and therefore concluded that DOE was not
responsible for the Tyson Program tuition costs from August 1
to September 20, 2017. Parent does not challenge that portion
of the Decision. DOE timely filed this appeal challenging the
Decision's conclusion that DOE denied Student a FAPE. ECF
IDEA is a comprehensive educational scheme, conferring on
disabled students a substantive right to public
education[.]” Hoeft v. Tucson Unified Sch.
Dist., 967 F.2d 1298, 1300 (9th Cir. 1992). Its goals
are to “ensure that all children with disabilities have
available to them a free [and] 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,
” and to protect “the rights of children with
disabilities and [their] parents.” 20 USC §
1400(d). The primary purpose of the IDEA is to ensure that
disabled children are provided a FAPE, which is defined as
“special education and related services” that are
free, “meet the standards of the State educational
agency, ” and “are provided in conformity with
the individualized education program required” by the
statute. 20 U.S.C. § 1401(9).
is a “written statement for each child with a
disability that is developed, reviewed, and revised in
accordance with [Title 20, United State Code, ] [S]ection
1414(d).” 20 U.S.C. § 1401(14). Section 1414(d)
specifies that IEPs must include (1) a statement of the
present levels of educational performance; (2) a statement of
measurable annual goals; (3) a description of how the annual
goals will be measured and when progress reports will be
provided; (4) a statement of the special education services
and supports that will be provided, including the projected
beginning date of these services and their anticipated
frequency, location, and duration; (5) an explanation of the
extent, if any, to which the child will not participate in
the regular curriculum with non-disabled students; (6) a
statement of any individual accommodations necessary to
measure the child's academic achievement on standardized
assessments; and (7) for children over sixteen, a statement
of appropriate postsecondary goals including transition
services needed to reach postsecondary goals. See 20
U.S.C. § 1414(d). The IEP must be “tailored to the
unique needs of the handicapped child.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty.
v. Rowley, 458 U.S. 176, 181 (1982). When formulating an
IEP, school districts must allow parents to examine all
records, participate in all meetings, and provide input.
See J.W. ex rel. J.E.W. v. Fresno Unified Sch.
Dist., 626 F.3d 431, 432 (9th Cir. 2010). The IDEA
provides procedural requirements that school districts must
follow in creating and implementing an IEP, and dispute
resolution procedures. See 20 USC § 1415.
of the IDEA are categorized either as procedural or
substantive. A procedural violation occurs when a district
fails to abide by the procedural requirements. Procedural
violations do not necessarily amount to a denial of a FAPE.
See, e.g., L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 909 (9th Cir. 2009). A procedural
violation constitutes a denial of a FAPE where 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, 953 (9th Cir.
substantive violation occurs when an IEP is not
“reasonably calculated to enable a child to make
progress appropriate in light of the child's
circumstances, ” Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1001
(2017), but the IDEA does not guarantee “the absolutely
best or ‘potential-maximizing' education.”
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,
1314 (9th Cir. 1987). Rather, the IDEA provides a
“basic floor of opportunity, ” Rowley,
458 U.S. at 201, and the educational benefits must be
meaningful, not trivial, see M.C. v. Antelope Valley
Union High Sch. Dist., 858 F.3d 1189, 1200 (9th Cir.
2017). Whether an IEP is reasonably calculated to enable a
student to make appropriate progress is judged under the
“snapshot rule;” that is, the IEP is to be
evaluated from the time created, with the information
available at the time, not from hindsight. See,
e.g., L.J. v. Pittsburg Unified Sch. Dist., 850
F.3d 996, 1004 (9th Cir. 2017); Adams v. Oregon, 195
F.3d 1141, 1149 (9th Cir. 1999).
parent or guardian believes that the IEP does not provide a
FAPE, he or she may challenge the IEP through an
administrative hearing. 20 USC § 1415(b)(6), (f)(1)(A).
If the court finds that the district failed to provide a
FAPE, the court may impose reimbursement of private school
costs incurred by the student. See 20 USC §
1412(a)(10)(C)(ii). The party seeking relief carries the
burden of proof. Van Duyn ex rel. Van Duyn v. Baker Sch.
Dist. 5J, 502 F.3d 811, 819-20 (9th Cir. 2007). To be
awarded reimbursement, the parent must establish that the
private school was appropriate for his or her child's
unique needs. See C.B. ex rel. Baquerizo v. Garden Grove
Unified Sch. Dist., 635 F.3d 1155, 1159- 60 (9th Cir.
2011). Parties aggrieved by the administrative hearing may
appeal the decision in district court. 20 USC §
STANDARD OF REVIEW
IDEA provides that a court, in reviewing a due process
hearing, “(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
relief as the court determines is appropriate.” 20
U.S.C. § 1415(i)(2)(C). But “the provision that a
reviewing court base its decision on the ‘preponderance
of the evidence' is by no means an invitation to the
courts to substitute their own notions of sound educational
policy for those of the school authorities which they
review.” Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206
the IDEA, district courts give “considerably less
deference to state administrative proceedings than they do in
most instances of ‘judicial review of . . . agency
actions, in which courts generally are confined to the
administrative record and are held to a highly deferential
standard of review.'” Anchorage Sch. Dist. v.
M.P., 689 F.3d 1047, 1053 (9th Cir. 2012) (quoting
E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist.
Office of Admin. Hrgs., 652 F.3d 999, 1005 (9th Cir.
2011). District courts review conclusions of law de novo,
while at the same time giving “due weight” to the
administrative hearing officer's findings. See
Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d
1004, 1008 (9th Cir. 2009); Amanda J. ex rel. Annette J.
v. Clark Cty Sch. Dist., 267 F.3d 877, 887 (9th Cir.
2001) (“Complete de novo review . . . is
“due weight” must be given to the administrative
decision, the amount of deference afforded is informed by the
hearing officer's carefulness and thoroughness. See
L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908
(9th Cir. 2009); J.W. ex rel. J.E.W. v. Fresno Unified
School Dist., 626 F.3d 431, 440- 41 (9th Cir. 2010);
see also Ashland, 588 F.3d at 1009 (“In the
end, however, the court is free to determine independently
how much weight to give the state hearing officer's
determinations.”). Courts in the Ninth Circuit give
deference to an administrative law judge's decision
“when it ‘evinces his [or her] careful, impartial
consideration of all of the evidence and demonstrates his [or
her] sensitivity to the complexity of the issues
presented.'” J.W., 626 F.3d at 438
(quoting Cty. of San Diego v. Cal. Special Educ. Hrg.
Off., 93 F.3d 1458, 1466 (9th Cir. 1996)).
burden of proof rests with the party challenging the
administrative decision. Hood v. Encinitas Union Sch.
Dist., 486 F.3d 1099, 1103 (9th Cir. 2007); Clyde K.
v. Puyallup Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th
initial matter, the Court does not give substantial deference
to the Decision's findings of facts and conclusions of
law because the Decision does not demonstrate a
“careful, impartial consideration of all the
evidence” or a “sensitivity to the complexity of
the issues presented.” J.W., 626 F.3d at
438. For example, with respect to ESY services,
aside from quoting the language of the IEP and listing some
generally applicable requirements, the analysis of this issue
is short and conclusory. ECF No. 2-1 at 37-38. The Decision
does not discuss whether providing ESY services after
fourteen days rather than nine days amounts to a denial of a
FAPE or how much if any of the reimbursement award was based
on the asserted ESY inadequacy.
with respect to transition services, the Decision does not
apply the correct legal standards for procedural and
substantive violations and fails to address several important
issues. For example, the Decision relies almost exclusively
on Dr. Tyson's testimony to conclude that a months-long
comprehensive transition plan was required. Id. at
34-37. The Decision, however, does not address the
contradictory evidence showing that Student was able to
transition from public school to the Tyson Program
exceptionally well after only three days. See ECF
No. 11-16 [Pet'rs' Admin. Hr'g Ex. 17] at 106
(“[Student] was immediately eager and fully engaged in
the [Tyson] program . . and only minor behavior outbursts
were . . . resolved after three mornings and she adjusted
into the program routines.”). Equally concerning is the
lack of discussion regarding Dr. Tyson's inherent
self-interest in a longer and more comprehensive transition
plan which would provide multiple months of funding of Tyson
Program staff. See Admin. Hr'g Tr. at 50:3-52:8.
Decision also does not clearly state whether DOE denied
Student a FAPE by only specifying that “up to 20 hours
per month” of mental health services would be provided
to Student. The Decision states both that it was a procedural
violation and that “Mother did not avail Student to
receive the benefits of this service.” ECF No. 2-1 at
33. Thus, it is unclear to the Court whether the Decision
found a denial of a FAPE on this basis.
these reasons, the Court gives little weight to the
Decision's factual findings and conclusions of law.
See M.C. by and through M.N. v. Antelope Valley Union
High Sch. Dist., 858 F.3d 1189, 1194-95 & n.1 (9th
Cir. 2017) (holding that district court erred in deferring to
hearing officer's findings where hearing officer was not
thorough or careful).
Whether the Decision Impermissibly Addressed ...