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Department of Education v. L.S.

United States District Court, D. Hawaii

March 29, 2019

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,
v.
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

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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 this Order.

         II. BACKGROUND

         Student 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.

         Prior 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.[1] 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.

         Student 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.

         DOE and 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. Id.

         On July 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.

         Parent 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.

         Parent 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.

         On 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. Id.

         Parent 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, ¶¶ 49-50.

         The IEP 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.

         The 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.

         Immediately 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 176.

         The 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.

         Student 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 No. 1.

         III. STATUTORY FRAMEWORK

         “The 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).

         An IEP 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.

         Violations 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. 2010).

         A 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).

         When a 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 § 1415(i)(2).

         IV. STANDARD OF REVIEW

         The 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 (1982).

         Under 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 inappropriate.”).

         While “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)).

         The 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 Cir. 1994).

         V. DISCUSSION

         As an 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.

         Similarly, 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.

         The 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.[2]

         For 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).

         A. Whether the Decision Impermissibly Addressed ...


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