DECISIONS ISSUED BY HAWAII HEARING OFFICERS UNDER

THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

 

(Last updated July 1, 2018)

 

The following tabulation summarizes decisions issued by hearing officers appointed under the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3).  Pro se cases are generally omitted in the description below but included in the Appendix.  IDEA regulations require that school districts make due process decisions available to the public after redacting personally identifiable information.  34 C.F.R. §300.513(d).  A statistical summary and list of cases on appeal is included in the Appendix.  Redacted decisions may be found in their entirety on the website of the Hawaii Department of Education (“DOE”) at http://www.hawaiipublicschools.org/TeachingAndLearning/SpecializedPrograms/SpecialEducation/Pages/home.aspx.  Decisions that were reversed, modified, or remanded on appeal are shaded.  Additional decisions included in the Appendix were summarized in a report published by the Hawaii Disability Rights Center before August 1, 2011 that is no longer available on the internet.  Compiled by John P. Dellera, J.D. 

  

 

NEW AND UPDATED CASES since:

April 1, 2018 (***)

January 1, 2018 (**)

October 1, 2017 (*)

 

1718-028***

1718-024***

1718-015***

1718-012***

1011-103***

1011-076R***

1718-015**

1617-080**

1617-066**

1617-067A**

1617-045**

1314-018**

1112-101**

1011-076R**

1617-057*

1617-021*

1415-044*

1314-018*

 

DCCA Docket

Number

Student’s Attorney

DOE’s Attorney

Hearings Officer/

Date Issued

Issue(s)/Outcome/Reasoning

DOE-SY-1718-028***

Keith H.S. Peck

Ryan W. Roylo

Jennifer M. Young

5/14/2018

 

1.      Participation of private school staff at IEP meeting;

2.      Adequacy of IEP;

3.      Behavior Support Plan (BSP);

4.      Transition Plan;

5.      ESY

6.      Reimbursement of private school tuition

 

OUTCOME:  For Student

 

REASONING: (1) Private school staff may attend IEP meeting if invited, but otherwise, there is no requirement that they attend; (2) IEP goals and objectives are vague and overbroad and do not show whether student is making educational progress; goals do not address student’s medical needs; services are not specified and state only maximum hours, not minimum; (3) BSP should have been incorporated in the IEP so that parent had an opportunity to participate in its formulation; (4) transition plan should have been prepared in view of student’s severe behavioral issues; (5) 14-day waiting period for ESY services was not supported by the evidence; (6)(a)  reimbursement of private school tuition of $31,098 denied for period before IEP meeting because parent failed to cooperate with DOE; (b) reimbursement thereafter of $155,493 ($18,659 per month) is granted.

 

DOE-SY-1718-024***

Keith H.S. Peck

Ryan W. Roylo

Denise Balanay

6/6/2018

1.      Parental participation in transition plan;

2.      Behavioral support plan (“BSP”)

3.      Private school tuition reimbursement

 

OUTCOME:  For DOE

 

REASONING:  (1)(a) DOE denied a FAPE by failing to agree upon start date of transition plan at IEP meeting; insertion of date thereafter denied parent meaningful participation in the IEP process; (1)(b) parent participated in other issues raised at IEP meeting, and the DOE’s disagreement did not deny a FAPE; (2) IEP adequately addressed student’s behavioral needs; BSP need not be attached to IEP; (3) tuition reimbursement denied because Parent failed to introduce evidence showing that private school placement was appropriate.

 

DOE-SY-1718-015***

Eric A. Seitz

Kunio Kuwabe

Jennifer M. Young

2/21/2018

 

1.      Reevaluation of student;

2.      Annual goals for mental health needs;

3.      Placement in residential treatment center

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE, not DOH, is responsible for evaluating student for mental health needs that affect education.  Those needs were apparent upon student’s admission to hospital for aggression and inappropriate sexual behavior, and DOE’s failure to reevaluate them for five months was a procedural defect.  (2) Failure to include PLEPS and goals and objectives meeting student’s mental health needs in IEP was a denial of FAPE.  (3) DOE is ordered to reconsider student’s needs and to prepare a revised IEP.  Reimbursement for cost of residential treatment is denied because parents did not prove it is necessary for student to make educational progress.   

 

ON APPEAL:  Case H. v. DOE, D. Haw. Civ. No. 18-72 LEK-KSC – settled 5/22/18.

 

DOE-SY-1718-012***

Keith H.S. Peck

Gregg M. Ushiroda

Denise P. Balanay

1/30/2018

1.      Parental participation in IEP process

2.      Failure to implement IEP;

3.      Qualifications of teachers;

4.      Behavioral support plan

 

OUTCOME:  For DOE

 

REASONING:  (1) Parent’s requests were heard and considered at IEP meetings, and some were implemented.  Difference of opinion on other items does not show parent was denied a meaningful opportunity to participate; (2) a “minor implementation failure” to implement IEP is not actionable under the IDEA; (3) the IDEA does not require that IEPs specify qualifications of DOE staff members; (4) IDEA does not require that IEPs include a behavioral support plan as long as behavioral needs are adequately addressed.

 

ON APPEAL:  W.U. and L.U. v. DOE, D. Haw. Civ. 18-197 LEK-KSC – pending.

 

 

 

 

 

                                                                                                                                

DOE-SY-1617-080**

Keith H.S. Peck

Kris A. Murakami

Denise P. Balanay

11/9/17

 

1.      Adequacy of IEP (“fade plan” and transition from private school, etc.);

2.      Least restrictive environment

3.      Reevaluation

 

OUTCOME:  For Student

 

REASONING: (1) Failure of IEP team to prepare adequate plan to transition student from private school denied a FAPE where student needed a transition plan to implement the IEP; (2) Parents did not prove that student would be bullied in least restrictive environment (lunch, recess, assemblies, and activity periods).  “Student’s socialization needs can be better addressed at Public School than in the limited environment that Private School offers.”  (3) DOE made every effort to reevaluate Student for purposes of the IEP. Parents were less than cooperative with those efforts, finally revoking consent.  (4) DOE is ordered to convene a new IEP meeting correcting deficiencies.

 

DOE-SY-1617-67A**

Samuel Shnider

Kunio Kuwabe

Rowena A. Somerville

4/2/2018

1.      Predetermination of placement

2.      Least restrictive environment

 

OUTCOME:  For DOE

 

REASONING:  (1) “The DOE properly waited until the IEP was developed before it determined Student’s appropriate placement. The IEP was specifically tailored to fit the Student’s unique needs prior to the determination that Student could be offered a FAPE at the Home School”; (2) where the DOE offers a FAPE in public school, a private school for disabled students may not be the LRE because of insufficient interaction with non-disabled peers. 

 

DOE-SY-1617-066**

Patricia L. Cookson

Kris A. Murakami

Rowena A. Somerville

2/11/2018

1.      Need for air-conditioned environment

 

OUTCOME:  For DOE

 

REASONING:  Unlike G.B. v. New York City Dept. of Educ., 145 F.Supp.3d 230 (S.D.N.Y. 2015), parent did not offer sufficient evidence to support claim that student needed air-conditioned environment to accommodate physical condition.  Parent refused to give DOE access to student’s medical records, but the DOE still installed an air conditioner in student’s classroom.  Student’s condition did not require transfer to a different school.

 

DOE-SY-1617-057*

Patricia L. Cookson

Paul R. Mow

Rowena A. Somerville

12/11/2017

1.      Reevaluation of Student;

2.      Composition of IEP team;

3.      Noncompliance with IEP;

4.      Unqualified DOE teacher.

 

OUTCOME:  For Student

 

REASONING:  (1) DOE had a duty to reevaluate because Student was not making progress and clearly had impaired communication; (2) IEP team did not include a DOE employee who was knowledgeable about Student’s needs and services available to meet those needs; (3) DOE failed to provide a 1:1 aide required by the IEP; (4) Special education teacher was disinterested in Student’s education and relinquished teaching duties to parent, believed to be a special education teacher.  Educational Aide performed duties of special education teacher.  Student made little or no progress since 2014.

 

DOE-SY-1617-45**

Kirstin Hamman

Paul R. Mow

Rowena A. Somerville

3/23/2018

1.      Services to students in private schools;

2.      Parental participation in IEP process;

3.      Placement in private school;

4.      Reimbursement of private school tuition;

5.      Compensatory education

 

OUTCOME:  For Student

 

REASONING:  (1) DOE is not required to fund services for student with disabilities in excess of IDEA formula where student is voluntarily placed in private school by parent; (2) staff transition plan identified in IEP was not implemented and resulted in negative behaviors, regression and inability to access Student’s education; (3) while it was reasonable for parents to deal directly with service providers retained by the DOE, the IEP did not require direct contact and absence thereof did not, therefore, deny a FAPE; (4) private school was not an appropriate placement because it was not the least restrictive environment; (5) parents’ request for tuition reimbursement was filed more than 180 days after unilateral private school placement and is, therefore, time-barred; (6) DOE ordered to pay for private tutor to assist student in transitioning to public school.

 

DOE-SY1617-041

Kirstin Hamman

Gregg M. Ushiroda

Rowena A. Somerville

9/5/2017

1.      Eligibility for special education

2.      Parental participation in IEP process

3.      Compensatory education

 

OUTCOME:  For Student

 

REASONING:  (1) Evidence showed that student with disabilities would receive educational benefit from special education even though performance was at grade level.   (2) Where evidence shows that Student’s disability impaired academic performance, Student qualifies for special education and related services as executive function, distractibility, and other problems could be addressed with such services.  (3) DOE clinical psychologist’s report was biased against parent which raised questions about its validity.  (4) DOE’s failure to consider private psychological report obtained by parent denied parents meaningful participation and denied Student a FAPE.  (5) Compensatory education denied because petitioner did not specify what was requested.

 

DOE-SY-1617-017/031

Keith H.S. Peck

Paul Mow

Rowena A. Somerville

6/28/2017

1.      Parents’ right to contact student’s aide;

2.      Payment for private services;

3.      Compensatory education

 

OUTCOME:  For Student

 

REASONING:  (1) DOE’s failure to allow parent to contact contractor providing 1:1 aide services to student denied meaningful participation in the IEP process and denied student a FAPE;  (2) DOE must pay cost of private services incurred by parents to the extent they are verifiable and are the direct result of the denial of FAPE; (3) compensatory education denied because parent did not specify relief requested.

 

DOE-SY1617-021*

Carl A. Varady

Kris A. Murakami

Rowena A. Somerville

2/22/2017

1.      Placement

2.      Stay put

 

OUTCOME:  For DOE

 

REASONING:  (1) Student, who alleged a need to be assigned to a public school campus in close proximity to medical facilities that met student’s individual needs did not prove that assignment to a different public school denied a FAPE. Parents’ decision to move farther from the desired school impeached their claim that placement should not be changed.

 

ON APPEAL:  Oliver C. v. DOE, D. Haw. Civ. No. 17-133 LEK-KSC – affirmed, 10/26/17:  (1) Student’s placement was a regular DOE campus, not a specific school; (2) change of schools did not implicate stay put because program in the new school was comparable to the previous one.

 

DOE-SY1617-005

Keith H.S. Peck

 

Gary S. Suganuma

Rowena A. Somerville

3/7/2017

 

1.      Composition of IEP team;

2.      Reduction of speech therapy;

3.      Behavioral support plan;

4.      Predetermination of mainstream placement;

5.      Transition plan.

 

OUTCOME:  For DOE   

 

REASONING:  (1) DOE invited private provider to IEP meeting as parent requested, but the individual chose not to attend; attendance was not necessary to develop IEP; (2) DOE speech language pathologist testified that student was making progress with 60 minutes of SLT per week; (3) there is no requirement that BSP, as opposed to a requirement for behavioral intervention services, be included in IEP; (4) DOE did not determine placement until IEP had been developed; (5) IDEA does not require that IEPs include plans for transitioning student from private to public school.

 

 

 

 

 

                                                                                                                                 

DOE-SY1516-065

Keith H.S. Peck

Undisclosed

Undisclosed

6/14/2016

(unpublished order)

1.      Age-out remedy

 

OUTCOME:  For DOE

 

REASONING:  Student’s claim for compensatory education based on termination of special education at age 20 expired when ERK v. DOE, 728 F.3d 982 (9th Cir. 2013), was remanded to determine remedy for the plaintiff class.

 

ON APPEAL:  Joanne Y. v. DOE, D. Haw. Civ. No. 16-384 DKW-KSC – voluntary dismissal, 3/31/17.

 

DOE-SY1516-061

Jerel D. Fonseca

Kris Murakami

Richard A. Young

1/9/2017

1.      Behavior Support Plan;

2.      ESY;

3.      Least restrictive environment;

4.      Independent Educational Evaluation;

5.      Adequacy of IEP.

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE’s failure to implement BSP did not deprive student of material services because student did not exhibit behavioral problems the BSP addressed; (2) student maintained progress despite increase in ESY period from 17 to 23 days; (3) student was enrolled in general class rather than fully self-contained class and was therefore in the LRE; (4) parent was not entitled to an Independent Educational Evaluation where the DOE’s evaluation was not valid due to Student’s fatigue and unwillingness to answer a large number of questions; (5) reduction of special education services did not deny a FAPE where student made meaningful educational progress.

  

DOE-SY1516-057

Keith H.S. Peck

Kunio Kuwabe

Rowena A. Somerville

8/2/2016

1.      Expiration of IEP

 

OUTCOME:  For DOE

 

REASONING:  Prior IEP may be continued on an interim basis while the IEP team actively considered a new IEP where (i) the AHO held in DOE-SY1516-032 that a revised IEP issued three months earlier did not deny a FAPE and (ii) student withdrew from public school while IEP meetings continued.

 

DOE-SY1516-044

Eric A. Seitz

Kunio Kuwabe

Rowena A. Somerville

6/23/2016

1.      ESY

 

OUTCOME:  For DOE

 

REASONING:  Evidence presented by the DOE showed that increase of period triggering ESY from three to four days did not result in regression.

 

DOE-SY1516-039

Keith H.S. Peck

Kunio Kuwabe

Rowena A. Somerville

5/2/2016

1.      ESY;

2.      Motor skills;

3.      Verbal communication;

4.      Supplemental services

 

OUTCOME:  For DOE

 

REASONING:  (1) There was no evidence of regression after summer break and thus no need for ESY services; (2) Progress report showed student was benefiting from education because of the emerging ability to jump one inch; (3) Student could speak only three words at the due process hearing, but verbal skills were emerging based on the teacher’s estimate that student knew 100 words; (4) Parent requested an aide for student, but the IEP team was unable to schedule a meeting to consider the request.

 

DOE-SY1516-032

Keith H.S. Peck

Kunio Kuwabe

Rowena A. Somerville

4/29/2016

1.      Inadequate IEP;

2.      Speech-language services;

3.      Behavioral support services

4.      ESY;

5.      Least restrictive environment

 

OUTCOME:  For DOE

 

REASONING:  (1) IEP team did not resolve conflicts between teachers’ testimony and private assessment, but author of the private report did not testify and teachers were credible.  September IEP was sufficient despite IEP team’s failure to resolve outstanding issues at a meeting held the next month;; (2) Student’s speech was functional, and based on the DOE’s testimony, the ability to utter 2 or 3 intelligible word phrases was sufficient to establish educational benefit; (3) parent’s testimony of behavioral problems at home did not outweigh DOE testimony that there were no problems at school; (4) IEP team’s deferral of ESY issues to future IEP meeting was not a denial of FAPE; (5) even though the parties agreed to defer issues to a subsequent IEP meeting, parent’s failure to raise the LRE issue at the September IEP meeting foreclosed consideration at the due process hearing.

 

DOE-SY1516-031

Carl M. Varady

Kris Murakami

Richard A. Young

7/1/2016

1.      Adequacy of IEP;

2.      Denial of home hospital instruction;

3.      Collaboration with parent;

4.      Reimbursement for private placement

 

OUTCOME­:  For Student

 

REASONING: (1)  IEP identified student’s individual needs and provided services to meet them; placement in general education class for science and social studies was the least restrictive environment; lack of progress resulted from substantial absences and tardiness; (2)  DOE denied a FAPE by rejecting request for home hospital instruction recommended by three mental health professionals to compensate for student’s absences from school caused by anxiety; (3) DOE did not fail to collaborate with parent in addressing student’s anxiety where it modified program and used numerous accommodations to deal with absences; (4) private school is a proper placement because it addresses student’s needs and student is making progress there; DOE is therefore ordered to reimburse tuition of $21,000 per year.

 

DOE-SY1516-028

Kirstin Hamman

Gregg Ushiroda

Rowena A. Somerville

7/29/2016

1.      Failure to evaluate suspected disabilities;

2.      Eligibility for IDEA services;

3.      Parental participation;

4.      Specially designed instruction;

5.      Remedy for violations

 

OUTCOME:  For Student

 

REASONING:  (1) DOE denied a FAPE by failing to evaluate student’s behavioral needs as indicated by staff members’ observations; (2) student is eligible for special education based on teacher’s observations of sensory needs and attention and social skills deficits that were corroborated by private psychologist; testimony of DOE psychologist, occupational therapist, SSC, and speech language therapist was not credible; (3) DOE ignored parent’s concerns in failing to conduct a functional behavioral assessment; (4) (a) Section 504 accommodations were sufficient for student’s speech language and sensory needs; (b) DOE failed to provide specially designed instruction for student’s behavioral needs; (5) (a) AHO lacks authority to find that student is eligible for special education and to order the DOE to prepare an IEP; (b) compensatory education is denied because parent did not specify type or amount being sought; (c) DOE is ordered to reimburse cost of private psychologist’s report because it provided valuable information to the DOE.

 

DOE-SY1516-007

Jerel D. Fonseca

Gregg Ushiroda

Richard A. Young

10/12/2015 

unpublished order

1.      Stay put

 

OUTCOME:  For Student

 

REASONING:  Protections under "stay-put" commence when a due process request is filed and continue through the administrative hearing.  An order in DOE-SY1415-014 placed student in private school until July 29, 2015, which was the current placement when the due process request was filed on July 27, 2015.  Thus, Student has a right to remain at the private school, Pacific Autism Center, during the administrative process. 

 

ON APPEAL:  DOE v. Krayson A., D. Haw. Civ.No. 15-445 LEK-KJM – voluntary dismissal, 4/14/16.

 

DOE-SY1516-006

Keith H.S. Peck

Kunio Kuwabe

Rowena A. Somerville

11/4/2015

1.      ESY;

2.      Transportation services

 

OUTCOME:  For DOE

 

REASONING:  (1) Student was not entitled to ESY during summer break because there was no evidence that skills acquired during the regular school year were lost during the summer; (2) Parent did not collaborate with the DOE by requesting curb-to-curb transportation at IEP meeting and could not, therefore, raise the issue in the due process request.

 

DOE-SY1516-005

Keith H.S. Peck

Carter Siu

Richard A. Young

2/10/2016

1.      Need for behavioral evaluation;

2.      ESY;

3.      Adequacy of IEP services;

4.      Parental participation;

5.      Reimbursement of private school tuition

 

OUTCOME:  For Student

 

REASONING:  (1)  Behavioral problems were noted in 2014 IEP, and parent and private school director testified problems continued after private school placement in 2015.  The DOE should have evaluated Student for such problems despite teacher’s testimony that no problems were noticed. (2) DOE considered the nature and severity of the disability; Student’s ability to be self-sufficient; and the amount of regression and recoupment in denying request for ESY; testimony of private school director that Student regressed after two week break did not prove that he needed ESY.  (3)  DOE denied a FAPE by failing to address Student’s behavioral and social needs.  (4)  Parents participated in a meaningful way in the IEP process.  (5)  Private placement has applied for a license and accreditation, has 25 students, and contracts for behavioral services.  Student continues to exhibit behavioral problems but is making progress dealing with them.  Placement is appropriate, and tuition should be reimbursed.

 

ON APPEAL:  DOE v. Leo W., 226 F.Supp.3d 1081 (D. Haw. Civ. No. 16-106 LEK-BMK) – reversed 12/29/16: (1) DOE was required to consider a private psychological report that student had autism and behavioral needs, but it was reasonable to defer any reevaluation of student until the report’s findings could be confirmed by observing student in class; (2) Failure to reevaluate student at mother’s request was harmless error because behavioral issues at home did not affect progress at school; (3) ESY services were not needed because student received a “meaningful” education and regression was recouped “pretty quickly” after breaks in schooling.

 

FURTHER APPEAL:  9th Cir. No. 17-15304, voluntarily dismissed, 9/8/17. 

 

 

 

 

 

 

DOE-SY1415-070

Jennifer V. Patricio

Michelle M. Puu

Rowena A. Somerville

8/26/2015

1.      Disciplinary removal from home school;

2.      Interim alternative educational placement (“IAEP”);

3.      Jurisdiction to review Chapter 19 discipline;

4.      Least restrictive environment

 

OUTCOME:  For DOE

 

REASONING:  (1) (a) Parent did not show that student’s threatening behavior towards vice-principal was a manifestation of his disability; (b) Neither the IEP nor the Behavior Support Plan referred  to physical outbursts or violence; thus, DOE did not fail to implement either document in suspending student; (2)  (a) IDEA regulation that allows school to place a student in an IAEP for up to 45 days for possession of a weapon or drugs without a manifestation determination has no application to this case; (b) DOE did not deny a FAPE by placing student in IAEP for more than 45 days because student’s conduct was not a manifestation of disability; (3) (a) hearings officer lacked jurisdiction to review DOE’s decision placing student in IAEP pursuant to Chapter 19 of its administrative rules; (b) the due process request did not raise an issue as to whether the IEP team placed student in the IAEP, and parent did not prove that the IEP team did not do so; (4) disciplinary placement was the least restrictive environment.

 

DOE-SY1415-067

Pro se

None

Rowena A. Somerville

11/6/2015

1.      Adequacy of services

 

OUTCOME:  For DOE

 

REASONING:  Parent failed to offer proof that services required by IEP were inadequate.

 

DOE-SY1415-066

Jerel Fonseca

Gregg Ushiroda

Rowena A. Somerville

7/11/2016

1.      Evaluation of suspected disabilities;

2.      Inappropriate IEP;

3.      Behavior at home;

4.      Extended school year services

 

OUTCOME:  For DOE

 

REASONING:  (1)  DOE evaluated all suspected disabilities by considering private psychological reports provided by parent and using a variety of assessment tools to design the student’s educational program; (2) IEPs adequately addressed student’s needs that were shown by evaluations, and while disruptive behaviors took place at home, they diminished at school; (3) DOE did not deny a FAPE because of student’s behavior at home when student made educational progress at school; (4) student not entitled to ESY because there was no proof of regression during breaks in education.

 

DOE-SY1415-047

Keith H.S. Peck

Steve Miyasaka

Richard A. Young

6/26/2015

1.      Adequacy of PLEPs

2.      Parental participation in IEP process;

3.      Predetermination of placement;

4.      ESY

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE considered current levels of student’s performance and invited former private school representatives to IEP meeting, but parent failed to arrange for their attendance; (2) Parent’s views about ESY were considered by the IEP team; (3) parental concerns section of IEP and the DOE’s Prior Written Notice show that placement options were considered at the IEP meetings and not predetermined; (4) the frequency, location, and duration of ESY services do not need to be specified in the IEP.

 

ON APPEAL:  Thomas W. v. DOE, D. Haw. Civ. No. 15-268 DKW-BMK – settled – DOE reimbursed $7,500 private education costs.

 

DOE-SY1415-044*

Kirstin Hamman

Steve Miyasaka

Rowena A. Somerville

9/9/2015

1.      Protection against bullying;

2.      Private placement

 

OUTCOME:  For DOE

 

REASONING:  (1) IEP together with crisis plan offered a FAPE because it included a 1:1 aide at all times to prevent bullying, counseling of student, and a detailed plan for transition back to high school after prior bullying; (2) DOE’s anti-bullying policy is adequate; it is not required to implement all suggestions of the U.S. DOE regarding bullying; (3) even though student was placed in private school in DOE-SY1314-071, the DOE changed placement to public school shortly thereafter based on new facts.  Reimbursement for private school tuition is therefore denied (stay put was not an issue in this Decision).

 

ON APPEAL:  J.M. v. Matayoshi, 224 F.Supp.3d 1071 (D. Haw. Civ. No. 15-405 LEK-BMK) – affirmed, 12/1/2016.

 

FURTHER APPEAL:  J.M. v. Matayoshi, 9th Cir. No. 16-17327 (Robert C. Thurston (N.J.), pro haec vice, on the appeal) – pending

 

DOE-SY1415-043

Irene Vasey

Steve Miyasaka

Richard A. Young

11/2/2015

1.      ESY (summer counseling);

2.      1:1 aide

3.      Failure to hold IEP meeting;

4.      Behavioral services

 

OUTCOME:  For DOE

 

REASONING:  (1) Evidence did not show that Student regressed during breaks in school calendar; (2) Student, a high achiever in some academic classes, did not want a 1:1 aide, and such service would stigmatize and reduce Student’s independence; behavioral concerns were addressed adequately by teachers and educational aide; (3) DOE’s failure to hold emergency IEP meeting within six weeks of request did not violate IDEA because (a) parent did not notify DOE 24 hours in advance that meeting would be tape recorded and (b) because of DOE calendaring errors, it did not have staff available; (4) adult consultation with student at end of each school day was sufficient to address behavioral problems.

 

DOE-SY1415-042

Jerel Fonseca

Gregg Ushiroda

Rowena A. Somerville

2/8/2016

1.      Evaluation of suspected disabilities;

2.      Inadequate IEPs;

3.      Denial of parental participation;

4.      Least restrictive environment;

5.      Extended school year;

6.      Reimbursement for private school placement;

7.      Reimbursement for private neuropsychological evaluation.

 

OUTCOME:  For Student

 

REASONING:  (1)  DOE denied FAPE by failing to consider private assessments of language disabilities; (2) DOE was not required to use Orton-Gillingham methodology nor was it required to specify the teaching methodology it did use;

However, IEP denied a FAPE by failing to provide services tailored to student’s auditory processing deficit; (3)-(5) decided in favor of DOE; (6) Private school provided an appropriate program for student, and its tuition of $20,170 should therefore be reimbursed together with $2,470 for speech-language therapy; (7) reimbursement for private evaluation is denied because it was not obtained in response to a DOE evaluation. 

 

DOE-SY1415-040

Kirstin Hamman

Kunio Kuwabe

Rowena A. Somerville

9/22/2015

 

1.      Surrogate parent’s participation in IEP process (March 2014 IEP);

2.      Natural parent’s participation in January 2015 IEP meeting

 

OUTCOME:  For DOE

 

REASONING:  (1) Child Protective Services (“CPS”) placed student in temporary foster care after social worker noted bruises and scratches at school, after which a surrogate parent was appointed to represent student at IEP meetings.  Surrogate parent’s consent to amend IEP without consent of natural parent or student’s guardian ad litem and before parent had an attorney in the family court case was proper because at that time, student was a ward of the state; (2) after CPS case was dismissed with finding of no harm, natural parent’s failure to attend IEP meetings scheduled by the DOE between September 2014 and February 2015 justified holding IEP meeting without parent being present.

 

ON APPEAL:  P.M. v. DOE, D. Haw. 15-437 LEK-RLP – affirmed, Doc. 31, 10/31/2016:  (1) natural parent had no right under Hawaii law to make education decisions for his child during nine days the child was in foster care and a surrogate parent had been appointed; (2) DOE made repeated efforts to schedule IEP meeting when parent could attend and proceeded without parent only after agreement could not be reached.

 

DOE-SY1415-038

Keith H.S. Peck

Gregg M. Ushiroda

Rowena A. Somerville

7/14/2015

1.      Parental participation in IEP meeting;

2.      Student’s current needs;

3.      ESY

4.      Placement

 

OUTCOME:  For DOE

 

REASONING:  (1)  Parent failed to participate in IEP process over a period of 16 months by agreeing to attend IEP meetings but then failing to attend and by failing to respond to multiple inquiries from the DOE about proposed services and attendance at school; (2) DOE did not deny a FAPE because parent failed to provide information needed to determine student’s needs; (3) parent failed to provide sufficient evidence that student qualified for ESY services; (4) private tutoring service provided no opportunities for interaction with students without disabilities; that student was willing to attend private placement but not public school does not prove that the private placement was appropriate.

 

DOE-SY1415-037

Jerel D. Fonseca

Michelle Puu

Richard A. Young

7/20/15

1.      Need for behavioral assessment;

2.      Whether IEP met student’s needs;

3.      ESY

4.      Placement

5.      Lack of IEP for 4 months

6.      Reimbursement of private placement expense

7.      Compensatory education

 

OUTCOME:  For Student

 

REASONING:  (1)  DOE should have assessed student’s behavioral needs because student had been ejected from private schools for disruptive behavior, and its failure to do so denied a FAPE; (2) the DOE denied a FAPE by failing to include behavioral goals in the IEP; (3) student did not qualify for ESY services because there was no evidence of regression and need for 1:1 aide services; (4) (a)  DOE was not informed of student’s hospitalization for behavior and thus had no reason to believe that public school placement would be inappropriate under 2013 IEP; (b) DOE’s proposed placement under 2014 IEP was inappropriate for reasons that are not clear because of heavy redaction of hearings officer’s decision; (c) parents considered placements offered by DOE and did not predetermine the placement they preferred; (5) gap of 4 months from expiration of 2013 IEP to implementation of 2014 IEP denied a FAPE; (6) (a) private placement during SY2013-14 was not appropriate because there was no evidence that student made progress or that its program was appropriate; (b) expense for SY 2014-15 is reimbursed because private school’s program meets student’s need and student is making progress; (7) compensatory education granted for cost of private placement during ESY 2014 and 2015.

 

DOE-SY1415-031

Pro se

District Educational Specialist (not identified)

Rowena A. Somerville

5/8/2015

1.      Payment for independent educational evaluation (“IEE”).

 

OUTCOME:  For Student (proceeding brought by DOE)

 

REASONING:  (1) DOE failed to use a variety of tools in assessing Student’s gross motor skills (effect of low muscle tone on learning).  As a result, its assessment failed to identify all of the student’s needs.  (2) DOE rejected parent’s request for reimbursement of the cost of the IEE and requested a finding that its assessment was appropriate.  Because the DOE’s assessment was inadequate and the IEE was  sufficient, parent is entitled to be reimbursed for the IEE cost.

 

DOE-SY1415-014

Jerel D. Fonseca

Gregg M. Ushiroda

Rowena A. Somerville

7/1/2015

 

1.      Evaluation of suspected disabilities;

2.      Adequacy of IEPs;

3.      ESY;

4.      Parents’ participation in IEP process;

5.      Reimbursement of private school tuition;

6.      Reimbursement for related services

 

OUTCOME:  For Student

 

REASONING:  (1) DOE was not required to consider private expert’s diagnosis of student where it evaluated student’s behaviors; (2) the DOE procedurally violated the IDEA by failing to provide a 1:1 aide required by the IEP for over two months during which time negative behaviors increased;  IDEA does not require, however, the DOE to include in IEP private school’s recommendations about student’s needs  (3) Student was “generally” able to maintain and/or progress with some of Student’s skills after interruption of services for three months, and ESY services were therefore properly denied; (4) Parents were not provided with a functional behavioral assessment and behavior support plan prior to or during the IEP meeting, and were therefore denied meaningful participation in the development of the IEP.  The DOE is not required, however, to provide parents with data used to prepare those documents or to give parents input in preparing them; (5) reimbursement of $80,211 in tuition until start of SY 2015-16 is granted because private school was appropriate and Student’s program at the private school was specifically designed to enable Student to educationally benefit from instruction; (6) reimbursement of $4,745 granted for speech language services not provided by the private school.

 

DOE-SY1415-010

Jennifer V. Patricio

Michelle Puu

Rowena A. Somerville

8/25/2015

1.      Adequacy of services

 

OUTCOME:  For DOE

 

REASONING:  (1) Standard testing placed Student in average range; Student was progressing; and videos of Student interacting with peers show that speech-language and occupational therapy services provided by DOE were adequate.

 

DOE-SY1415-003

Keith H.S. Peck

Kunio Kuwabe

Richard A. Young

1/8/2015

1.      Remedy for denial of FAPE before age 22

 

OUTCOME:  For Student

 

REASONING:  DOE denied a FAPE after age 20 for one year following ERK v. Dept. of Education, 728 F.3d 982 (9th Cir. 2013).  Three years of compensatory education is awarded in the form of 3-5 hours per week of academic, vocational, and life skills training to be conducted by the Student’s former private school, as it is no longer appropriate for Student to return there full-time.

 

DOE-SY1415-002

Kirstin Hamman

Steve Miyasaka

Rowena A. Somerville

12/29/2014

1.      Participation of private school teachers in IEP meetings;

2.      Adequacy of IEPs;

3.      Parent’s need for translator;

4.      Private placement;

5.      Participation of parents;

6.      Consensus of IEP team members;

7.      Educational methodology;

8.      Least restrictive environment

 

OUTCOME:  For DOE.

 

REASONING:  (1)  Parent did not request that private school teachers attend IEP meeting, and since they were unlicensed, IDEA regulations do not require their attendance; (2) evidence did not show that IEP goals were inappropriate because Student had not mastered them; (3) parent did not request a translator offered by the DOE, and a recording of the IEP meeting showed that parent actively participated and understood the proceedings; (4) DOE considered parent’s placement requests; (5) comments by parents were considered despite absence of occupational therapist at IEP meeting after 4 hours (6) IEP team members are not required to come to a consensus;(7) doctor’s prescription of specific methodology did not outweigh DOE’s methodology; (8) public school was the LRE because of limited interaction with non-disabled students at the private school.

 

 

 

 

 

 

DOE-SY1314-078

Kirstin Hamman

Adam Snow

Richard A. Young

1/20/2015

1.      Evaluation of student;

2.      Composition of IEP team;

3.      Appropriateness of IEPs;

4.      Reimbursement for private placement

 

OUTCOME:  For Student – private school tuition reimbursed.

 

REASONING:  (1) DOE did not fail to evaluate student for a specific disability where student was not diagnosed until after IEP meeting; (2) presence of student’s 1:1 aide at IEP, though requested by parent, was not required by IDEA; (3) (a) DOE not required to provide Braille in absence of evidence that it was medically necessary; (b) IEP life skills goals were inappropriate and denied a FAPE because they called for Student to do things within one year that Student was not capable of achieving; (c) DOE denied a FAPE by reducing speech-language services to 100 minutes per quarter when student’s skills were minimal; (4) evidence of progress at private school shows that it is an appropriate placement.

 

DOE-SY1314-071

Kirstin Hamman

Steve Miyasaka

Rowena A. Somerville

10/29/2014

1.      Participation of private school teachers at IEP meeting;

2.      Extended School Year (ESY) services;

3.      Whether FAPE was denied because of bullying;

4.      Whether private school was appropriate

 

OUTCOME:  For Student; cost of unilateral private placement reimbursed

 

REASONING:  (1) DOE is not required to include private school teachers in IEP meeting, and evidence did not show parent requested that; (2) DOE produced evidence that Student made progress in specific areas and thus did not need additional ESY services; (3) Despite the assignment of a paraprofessional tutor, Student was repeatedly bullied by other students.  DOE should have known but was deliberately indifferent.  Bullying substantially restricted Student’s learning and thus denied FAPE; (4) Evidence showed that private school, with the help of an outside consultant, was able to implement Student’s IEP and that Student made impressive progress, while no progress was made at the DOE school.

 

DOE-SY1314-070

Kirstin Hamman

Kunio Kuwabe

Richard A. Young

11/12/2014

1.      Sexual and other abuse of student;

2.      Failure to implement IEP;

3.      Speech-language services;

4.      Private school tuition reimbursement

 

OUTCOME:  For Student

 

REASONING:  (1) DOE failed to implement IEP and denied a FAPE when (a) special education teacher sexually abused Student, (b) student suffered unexplained hand blisters, and (c) student was injured while using a therapy ball; (2) speech-language services (partially delivered by paraprofessional tutor) were adequate because student’s ability to speak increased from 10 words to 50 unintelligible words in four months and receptive language improved to grade 3 level; (3) tuition reimbursement is limited to eight months because parent did not cooperate fully with DOE and lacked credibility.  Stay put placement is DOE school.

 

DOE-SY1314-042

Keith H.S. Peck

Kunio Kuwabe

David H. Karlen

4/17/2014

1.      Least restrictive environment (certificate track program);

2.      ESY;

3.      LRE (physical education);

 

OUTCOME:  For DOE

 

REASONING:  (1) Parent did not show how student was prejudiced by being placed in certificate track workplace readiness program, nor did DOE predetermine the issue by proposing placement in a draft IEP; (2) Parent failed to show that denial of ESY services deprived student of meaningful educational progress; (3) parent failed to show that student should have been included in regular physical education classes under criteria in Rachel H., 14 F.3d 1398 (9th Cir. 1994).

 

ON APPEAL:  A.G. v. DOE, D. Haw. Civ. No. 14-234 DKW-RLP – affirmed, 6/19/15.

 

DOE-SY1314-040

Keith H.S. Peck

Kunio Kuwabe

Richard A. Young

5/13/2014

1.      Eligibility for ESY;

2.      Denial of speech-language services;

3.      LRE placement (certificate track - workplace readiness program);

4.      LRE (physical education).

 

OUTCOME:  For DOE

 

REASONING:  (1) Teachers did not notice regression during 5-day break in education; student had received private tutoring during break, but IEP team was not informed of that; (2) evidence showed that speech-language services were consultative only and that those were provided; (3) based upon Student’s limited cognitive and adaptive abilities, the workplace readiness program is an appropriate placement; (4) low functional skills in academic classes made placement inappropriate in general physical education class.

 

DOE-SY1314-033

Matthew C. Bassett

Steve Miyasaka

David H. Karlen

3/7/2014

1.      Confidentiality of resolution sessions;

2.      Least restrictive environment;

3.      Failure to implement IEP.

 

OUTCOME:  For Student

 

REASONING;  (1) Resolution session discussions are not inadmissible settlement negotiations; (2) DOE denied placement in the least restrictive environment and failed to implement IEP by limiting student to one general physical education class per week and not preparing a lesson plan; (3) student did not prove that DOE’s refusal to enroll certificate track student in a culinary arts class was a material failure to implement the IEP, given the academic nature of the class and safety issues.

 

DOE-SY1314-031

Susan Dorsey

Carter Siu

David H. Karlen

12/30/2014

1.      Whether placement in SY 2013 is moot;

2.      Denial of FAPE after age 20;

3.      Hearings Officer’s jurisdiction to determine prevailing party status;

4.      Stay put as basis for attorney fees

 

OUTCOME:  Summary Judgment for DOE

 

REASONING:  (1) Placement for SY2013 was moot because DOE paid private school tuition for that year, and any denial of FAPE that year could not determine the issue for FY2014;  (2) DOE’s failure to advise Student of right to a FAPE after age 20 did not itself deny a FAPE after age 20; (3) Hearings officer has jurisdiction to determine prevailing party status, but not to award attorney’s fees; (4) automatic stay put does not confer prevailing party status.

 

ON APPEAL:  Asha H. v. DOE, D. Haw, Civ. No. 15-00032 HG-BMK – withdrawn, 11/16/15.

 

DOE-SY1314-030

Pro se

None

Richard A. Young

2/24/2014

1.      Failure to implement IEP;

2.      Inadequacy of IEP;

3.      Charter school was inappropriate placement;

4.      Private school placement.

 

OUTCOME:  For DOE

 

REASONING:  (1) Failure to implement IEP provision for pull-out sessions for two weeks was not a material discrepancy where student resisted pull-out sessions and special education teacher chose to delay pull-out in order to build rapport; failure to implement other provisions did not result in a loss of educational opportunity or deny parents meaningful participation in the IEP process; (2) parents did not offer evidence showing that student regressed, but charter school staff testified about progress in group settings and that student had a positive attitude; (3) parents did not prove that during the two months student attended the charter school, inclusion in groups and pull-out special education classes for math, reading, and writing were inappropriate; instances of bullying and weapons on campus were isolated and properly dealt with; (4) parents did not offer any evidence showing that private school’s program was appropriate for student.

 

ON APPEAL:  Tyler J. v. DOE, D. Haw. Civ. No. 14-121 DKW-KSC – affirmed, 2/24/15:  (1) Parents failed to exhaust administrative remedies over claim that DOE improperly classified student’s disability; (2) DOE’s failure to implement IEP at start of school year and its failure to provide an iPad were not material because they did not impede Student’s educational progress and thus did not deny a FAPE.

 

DOE-SY1314-026

Keith H.S. Peck

Gregg Ushiroda

Rowena A. Somerville

7/11/2014

1.      Provision of FAPE in view of bullying and assault at school;

2.      Least restrictive environment;

3.      Parental participation in IEP process;

4.      ESY

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE was not deliberately indifferent to harassment and bullying of Student as it disciplined offenders; DOE offered 1:1 aide, transfer to another school or home tutoring as response to Student’s fears caused by an assault at school; (2) Student’s frequent absence from school did not trigger ESY because student was making academic progress; (3) Placement in special education classes was appropriate because student needed extra supports; (4) DOE lacked information for IEP because parent failed to provide an evaluation of student’s needs and refused to sign consent forms for a re-evaluation by the DOE.

 

ON APPEAL:  K.K. v. DOE, D. Haw. Civ. No. 14-358 JMS-RLP – affirmed, 7/30/15:  (1) DOE offered adequate accommodations for student injured by fighting at school, but parent and counsel failed to cooperate in the IEP process, including evaluation of student’s needs. (2)(a) placement was not predetermined, (b) DOE offered placement consistent with mainstream requirement, and (c) parent did not prove that ESY services were necessary. 

 

DOE-SY1314-018**

Keith H.S. Peck

Carter Siu

Richard A. Young

1/7/2014

 

1.      Least restrictive environment (mainstreaming in math and language classes);

2.      Adequacy of supplementary aids;

3.      Private school placement

 

OUTCOME:  For DOE

 

REASONING:  (1) Evidence showed that student did well in special education class but shut down in regular class.  Also, modifications student needed in general ed class would adversely affect other students.  Student did not show, therefore, that placement in sped class was inappropriate.  (2) preferential seating close to the source, repeated instruction, and extra time to process statements were adequate.

 

ON APPEAL:  B.E.L. v. DOE, D. Haw. Civ. No. 14-66 SOM-BMK – affirmed, 10/24/14:  (1) Court may not consider issues that were not raised in the due process request; (2) conclusory argument that special education class placement was too restrictive did not overcome DOE’s reliance on factors outlined in Rachel H. – (a) parent did not overcome DOE’s testimony that child would progress in general education class with special supports; (b) parent did not show that social benefits from mainstreaming required placement in general education language arts and math classes; (c) DOE teachers testified there was not enough time to address student’s needs in general education class without detracting from other students

 

FURTHER APPEAL:  B.L. v. DOE, 9th Circuit No. 14-17316 – affirmed, 2/14/18.

 

DOE-SY1314-011

Susan Dorsey

Undisclosed

David H. Karlen

2/27/14

1.      Failure to evaluate suspected disabilities;

2.      Predetermination of placement;

3.      Denial of parental participation in IEP process;

4.      Inadequate IEP;

5.      ESY services;

6.      Reimbursement of private school tuition

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE failed to evaluate student as required by decision in DOE-SY1011-111, but that did not deny FAPE because parent never intended to send student to public school; (2) placement is not the same as location, and parent has no right to participate in determining the location of services; predetermination of placement at the home school does not violate the IDEA if the DOE is willing to consider alternatives; (3) non-English speaking parent did not attend IEP meeting; it is therefore immaterial that the interpreter provided by the DOE could not speak parent’s language; (4) IEP was inadequate because of gaps in PLEPs and goals that DOE intended to fill after student transferred from private school; (5) student did not prove that educational gains would be significantly jeopardized without ESY services; (6) even though the DOE denied a FAPE, reimbursement of private school tuition is denied because of parent’s refusal to attend IEP meeting and to fairly consider placement at home school.

 

ON APPEAL:  Derek H. v. DOE, D. Haw. Civ. No. 14-143 ACK-KSC – reversed in part, 12/29/2015, Doc. 53:  DOE paid private school expenses at Autism Behavioral Group under stay put in bilateral placement ordered in 1011-111.  Case is dismissed as moot except for reimbursement for speech language services in the amount of $7,689, which the court awards.

 

DOE-SY1314-008

Susan Dorsey

Michelle Puu

Richard A. Young

3/7/2014

1.      Failure to evaluate suspected disabilities;

2.      Inadequate IEP;

3.      Parental participation;

4.      ESY period;

5.      Private school placement

 

OUTCOME:  For DOE

 

REASONING:  (1) DES experienced in student’s disability attended IEP meetings; use of data over one year old in PLEPs was outweighed by DOE’s testimony that past and present needs were considered; (2) articulation goals were not necessary because of student’s cognitive difficulties; parent did not object to goals as being unmeasurable at IEP meetings; (3) special education and related services and the experience of DOE staff in disabilities similar to student’s offered a FAPE in the home school; private school staff participated in IEP meetings, although their advice was not followed; (4) ESY period appropriate where there was no proof of regression; (5) private school is an appropriate placement, but FAPE is offered in public school.

 

ON APPEAL:  Kimi R. v. DOE, D. Haw., Civ. No. 14-165 DKW-RLP – affirmed, 2/4/2015: (1) parent failed to show that IEP it offered would have been different if additional evaluations had been obtained; (2) IEP team had discretion to find no need to address articulation level because of cognitive impairment

 

DOE-SY1314-005

Keith H.S. Peck

Steve Miyasaka

Haunani H. Alm

12/30/2013

1.      Denial of speech-language services

 

OUTCOME:  For Student

 

REASONING:  (1) DOE’s failure to provide 2 hours per day of speech-language services from a qualified SLP was a material IEP deficiency and thus a denial of FAPE; (2) based on I.T. v. DOE, 2012 WL 3985686 (D. Haw. 9/11/2012), compensatory education includes retrospective as well as prospective relief; (3) student is entitled to be reimbursed for the cost of private speech-language services that the DOE failed to provide; (4)  compensatory education is not warranted because the DOE worked diligently to establish an IEP; (5) private placement is denied because violation of FAPE involved only five weeks.

 

 

 

 

 

 

DOE-SY1213-050

Keith H.S. Peck

Carter K. Siu

Haunani H. Alm

8/2/2013

1.      Provision of FAPE to student moving from another State;

2.      Reimbursement for private placement.

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE was not required to implement an IEP from another State Hawaii from Hawuntil student was enrolled in public school; (2) parent did not prove that DOE could not implement IEP.

 

ON APPEAL:  N.B. v. DOE, D. Haw. Civ, No. 13-439 LEK-BMK (Jocelyn Chong for DOE) – affirmed Doc. 26, 7/21/14: the DOE was required to implement an out-state IEP when the student enrolled in a DOE school, but parent was not justified in enrolling student in a private school when the DOE did not agree to implement the out-state IEP prior to enrollment. 

 

DOE-SY1213-046

Matthew C. Bassett

Kris S. Murakami

Haunani H. Alm

7/25/2014

 

1.      Evaluation for all disabilities;

2.      Denial of speech-language services;

3.      Denial of other needed services;

4.      Geographical exception;

5.      Private school placement

 

OUTCOME:  For Student – private placement ordered

 

REASONING:  (1) DOE should have evaluated student for all suspected disabilities, not just one category considered to be a “gatekeeper” for services; (2) termination of speech-language services because of student’s progress in one setting was unjustified where private evaluation showed that student’s skills were deficient in other settings;(3) General education teacher in academic classes with 33 students could not address student’s needs, and DOE’s “peer buddy” system that enlisted fellow students as aides was insufficient; present levels of performance did not fully describe student’s needs, and IEP did not meet those needs; (4) special education student did not need a geographic exception to return to previous public school; (5) private school placement is appropriate, and tuition shall be reimbursed for SY2014-15 and ESY 2015.

 

DOE-SY1213-041

John P. Dellera

Michelle Pu`u

Richard A. Young

7/31/2013

1.      Compensatory education for violation of stay put

 

OUTCOME:  For Student – placement at Loveland Academy ordered for SY 1213-1214 and ESY 2014.

 

REASONING:  (1) DOE denied student a FAPE by failing to comply with stay put order that required payment of tuition at Loveland Academy until student became 22 in May 2013; (2) student regressed during 7 months education was interrupted; (3) compensatory education at Loveland Academy is awarded for SY2013-2014 and ESY 2014 to restore seven months of FAPE plus time reasonably required to recoup regression.

 

DOE-SY1213-028

Keith H.S. Peck

Michelle Pu`u

Haunani H. Alm

5/30/2013

1.      DOE restrictions on subjects for IEP meeting;

2.      Reimbursement for unilateral parental placement

 

OUTCOME:  For Student – private school tuition reimbursed.

 

REASONING:  (1) the IEP team’s failure to engage in a discussion about Student’s behavior and the use of positive behavioral interventions significantly impeded Parents’ opportunity to participate in the IEP process and thus denied a FAPE to Student.

 

ON APPEAL:  DOE v. Z.Y., D. Haw. Civ. No. 13-322 LEK-RLP – affirmed in part and remanded in part, Doc. 21, 11/27/2013, 2013 WL 6210637: (1) HO’s decision is affirmed as to denial of parental participation; (2) case is remanded to determine whether private school is an appropriate placement for reimbursement purposes.

 

DOE-SY1213-026

Matthew C. Bassett

Michelle Pu`u

Haunani H. Alm

3/28/2013

1.      Need for 1:1 adult aide.

 

OUTCOME:  For Student

 

REASONING:  Brain injury and physical needs of student required that she have an adult aide assigned to her exclusively throughout the school day.  Without an aide, student was unable to focus on teacher in class and lunch with other students in order to benefit from social interactions with nondisabled students.

 

DOE-SY1213-016

Keith H.S. Peck

Milton  S. Tani

Haunani H. Alm

5/20/2013

1.      Provision of FAPE;

2.      Parental participation in IEP process;

3.      Private placement.

 

OUTCOME:  For Student

 

REASONING:  (1) Student did not prove that IEPs denied a FAPE; (2) During IEP meeting, parent raised issues of student’s participation with non-disabled peers during ESY breaks and need for 1:1 aide, but issues were not addressed.  The failure to address these issues was a serious infringement on parent’s participation and thus a denial of FAPE; (3) Student is placed in private school at DOE expense because DOE denied FAPE and private school is appropriate.

 

DOE-SY1213-007

Jerel D. Fonseca

Milton S. Tani

Rowena A. Somerville

5/16/2014

 

 

1.      Inadequate IEPs;

2.      Failure to re-evaluate student;

3.      Least restrictive environment;

4.      Failure to have IEP in place at start of school year;

5.      Reimbursement for related services;

6.      Payment for private evaluations;

7.      Compensatory education

 

OUTCOME:  For DOE

 

REASONING:  (1) IEPs based on 4 year-old tests of autistic student subject to seizures were adequate because PLEPs were based on over 1500 pages of “data” provided by special education teacher and DOE staff comments; (2) parent waived triennial re-evaluation; (3) placement was in the least restrictive environment; (4) parent obstructed completion of IEP before school year by requesting adjournments of IEP meetings and moving residence; (5) reimbursement for private behavioral services denied because provider interfered with DOE’s program; (6) compensatory education denied because DOE did not deny a FAPE.

 

ON APPEAL:  Nyle D. v. DOE, D. Haw. Civ. No. 14-274 DKW-KSC (Steve Miyasaka for DOE) – settled 3/25/15.

 

DOE-SY1213-004

Stanley E. Levin

Toby Tanaki

Richard A. Young

2/25/2013

1.      Adequacy of goals and objectives;

2.      Qualifications of IEP team members;

3.      Need for ESY;

4.      least restrictive environment;

5.      private school placement

 

OUTCOME:  For Student.  Private school tuition reimbursed.

 

REASONING:  (1) goals and objectives properly took account of student’s progress in private school; (2) because student had never attended home school, DOE team members could not have had personal knowledge of student; (3) DOE should have considered severity of receptive language disorder, not just regression and recoupment in deciding whether ESY services were needed; (4) DOE failed to include parents in decision to assign student to special education classes for core subjects and failed to consider whether mainstreaming with supports would be the LRE; (5) private school offered mental health counseling for anxiety, small class size, Orton-Gillingham method, and student made progress.  Placement was therefore appropriate.

 

DOE-SY1213-002

Keith H.S. Peck

Milton Tani

Richard A. Young

1/4/2013

1.      Least restrictive environment;

2.      Provision of special education in general education class.

 

OUTCOME:  For DOE

 

REASONING:  (1) Student of average intelligence was properly placed in special education classes for academic subjects because of smaller class size and greater attention from teacher that addressed Student’s lack of focus and need for re-direction; (2) parent did not prove that providing only 504-type accommodations in general education class denied a FAPE.

 

ON APPEAL:  D.E.B. [J.S. by D.S.-S.] v. DOE, D. Haw. 13-59 DKW-RLP (Jocelyn H. Chong for DOE) – affirmed, Doc. 21, 11/27/2013, 2013 WL 6210633.

 

DOE-SY1213-unk

Jay S. Handlin

Steve K. Miyasaka

Richard A. Young

4/25/2013

(Summary Judgment)

 

1.      Change of placement.

 

 

OUTCOME:  For DOE (Unpublished Decision)

 

REASONING:  DOE did not propose to change student’s placement or make an offer of FAPE by explaining the procedure for transferring student from one home school to another upon a change of legal residence.

 

ON APPEAL:  Rachel H.  v. DOE, D. Haw. Civ. No. 13-263 HG-BMK – affirmed Doc. 28, 6/18/2014: (1) educational placement means the type of school, not its location. Transferring student from one home school to another does not, therefore, change the placement; (2) DOE was unable to assign student to a specific public school until parent disclosed the family’s new address five months after the beginning of the school year; until then, a FAPE was offered at the previous home school.

 

FURTHER APPEAL:  Rachel H. v. DOE, 9th Cir. No. 14-16382 – affirmed, 8/29/2017.  ___F.3d ___ (9th Cir. 2017):  “the IDEA does not procedurally require every IEP to identify the anticipated school where special education services will be delivered.”

 

 

 

 

 

 

DOE-SY1112-105

Stanley E. Levin

Carter Siu

Richard A. Young

12/18/2012

1.      Lack of baselines in PLEPs;

2.      Evaluation for transition from private to public school:

3.      Least restrictive environment

 

OUTCOME:  For DOE

 

REASONING:   (1) information about student’s progress in private school was used to write goals and objectives, which were measureable; (2) although IDEA does not require evaluation before transition to public school, DOE staff reviewed private school records of progress and observed student in private school, thereby learning of transition needs; (3) student’s placement in special education classroom was appropriate because of behavioral issues that presented a danger to student and others.

 

ON APPEAL:  Anthony C. v. DOE, D. Haw. Civ. No. 12-698 DKW-BMK – affirmed, Doc. 33, 2/14/2014, 2014 WL 587848.

 

DOE-SY1112-101**

Keith H.S. Peck

Kris Murakami

Richard A. Young

12/13/2012

1.      IEP omits agreements made at meeting;

2.      Discussion of transition needs at IEP meeting;

3.      Methodology omitted from IEP;

4.      ESY

 

OUTCOME:  For DOE.

 

REASONING:  (1) student failed to prove, e.g. by specific references to tape recording of IEP meeting, that DOE agreed to matters omitted from the IEP; (2) because student had few behavioral needs, there was no need to discuss transition at IEP meeting when subject was discussed at transition plan meeting; (3) educational methods used are within DOE’s discretion and need not be addressed in IEP; (4) there was no need to discuss ESY at IEP because it could be discussed at transition meeting, and DOE staff had reviewed private school records.

 

ON APPEAL:  R.E.B. v. DOE, D. Haw. Civ. No. 13-16 DKW-BMK – affirmed Doc. 40, 4/16/2014:  (1) transition from private to public school need not be addressed at IEP meeting; (2) DOE rotates sites for summer ESY and need not specify them in IEPs; (3) there was no proof that the DOE agreed to include paraprofessional tutor’s qualifications in the IEP or that the omission thereof denied a FAPE; (4) Applied Behavior Analysis therapy is a methodology that the DOE is not required to specify in IEPs; (5) placement in LRE “as deemed appropriate” by teachers was not an improper delegation of authority because it avoided the need to call IEP meetings before every change of placement.

 

FURTHER APPEAL:  R.E.B. v. DOE, 9th Cir. No. 14-15895 – reversed and remanded, 9/13/17 (870 F.3d 1025); reconstituted panel grants motion for rehearing 4/3/18; opinion dated 9/13/17 is withdrawn. 

 

DOE-SY1112-100

Keith H.S. Peck

Milton Tani

Haunani H. Alm

11/2/2012

1.      Delay in preparing IEP;

2.      Inaccurate PLEPs and Goals;

3.      Parental involvement in determining placement;

4.      Stay put.

 

OUTCOME:  For Student.  Private school tuition reimbursed.

 

REASONING:  (1) DOE was not required to offer an IEP prior to the school year because parent was not ready to schedule an IEP meeting until three months later; (2) preparation of PLEPs was thorough, considered private school records, parent’s input, and clinical psychologist reports; (3)  IEP team did not consider placement options other than home school and failed to consider parent’s input.  DOE therefore denied FAPE both procedurally and substantively; (4) private school was stay put placement by virtue of decision in DOE-SY1112-012.

 

DOE-SY1112-093

Stanley E. Levin

Toby Tanaki

Richard A. Young

7/11/2012 (SDO);

9/25/2012 (Hrg)

Summary Disposition Order (“SDO”)

 

1.      Statute of limitations for unilateral private placement

 

OUTCOME:  For DOE

 

REASONING:  DOE agreed to pay private school tuition for specified period, but did not agree to private placement.  Thus, student’s attendance at private school after period ended was unilateral, and claim for reimbursement filed more than 180 days thereafter was untimely.

 

Decision After Hearing (“Hrg”)

 

1.      Evaluation of suspected disabilities;

2.      Placement in least restrictive environment;

3.      Lack of transition services from private to public school;

4.      Reimbursement of private school tuition;

5.      Parental participation in IEP process.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE had no duty to identify certain disabilities because school psychologist so testified and special education teacher thought IEP was adequate based upon review of report cards and conversation with private school teacher; (2) DOE did not predetermine placement and program by drafting an IEP that changed placement to public school because special education teacher testified IEP was only a starting point; (3) placement in special education class for language arts and math was least restrictive environment because non-academic subjects were held in regular classes; (4) no transition plan was required because parents had no intention of changing placement to public school; (5) reimbursement of private school tuition denied because DOE offered a FAPE in public school.

 

DOE-SY1112-087

Carl M. Varady

Carter Siu

Richard A. Young

11/9/2012

1.      Student’s need for 1:1 aide;

2.      Parental participation in IEP process;

3.      IEP team’s failure to consider private psychological evaluation

 

OUTCOME:  For DOE

 

REASONING: (1) IEP team agreed to provide 1:1 aide for 2 months, then reassess need; parent’s misunderstanding of time limit was not a denial of FAPE; (2) because parent failed to inform the IEP team that student had been evaluated by a private SLP, student did not prove that IEP speech-language services were inadequate; (3) DOE was not required to consider private psychologist’s recommendations because parent did not inform IEP team that report was forthcoming.

 

ON APPEAL:  Landon O. v. DOE, D. Haw. Civ. No. 12-675 RLP – withdrawn.

 

DOE-SY1112-075

Jerel D. Fonseca

Michelle Pu`u

Richard A. Young

9/11/2012

1.      IEP goals for high-functioning student with attention deficits;

2.      Bullying;

3.      Placement

 

OUTCOME:  For DOE.

 

REASONING:  (1) 1:1 pull-out counseling for 45 minutes per week, “adult assistance” for 405 minutes per week and various 504 accommodations were sufficient to address anxiety and attention deficit; program does not offer the best education, but it meets the Rowley standard; (2) DOE sufficiently addressed bullying by reprimanding students involved and offering parent option to transfer child to the home school; (3) placement in special education class for language arts was appropriate in view of student’s reading disorder.

 

DOE-SY1112-074

Jerel D. Fonseca

Gary S. Suganuma

David H. Karlen

8/3/2012

1.      IEP fails to include sign language, behavioral interventions, and adequate speech-language and occupational therapy;

2.      DOE’s failure to evaluate student;

3.      Reimbursement for private evaluation;

4.      Full-time 1:1 skills trainer;

5.      ESY break of 7 days is too long;

6.      IEP should plan for transition from private to public school;

7.      Whether placement is appropriate.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE had no duty to conduct its own evaluation because it had a private evaluation from parent; (2) parent has no right to recover the cost of a private evaluation unless the DOE has conducted its own evaluation and the parent objects; (3) sign language is a methodology that need not be included in the IEP; (4) due process request must specify how much speech-language therapy is needed and whether it should be in a group setting; (5) Student did not prove IEPs were inadequate, as behavioral issues had to be resolved before communication skills could be addressed; (6) due process complaint must be more detailed than Circuit Court pleadings because there is no discovery in IDEA hearings; (7) complaint that ESY period of 7 days was too long for some services did not, therefore, raise an issue that 21 days was too long for other services; evidence did not show student would regress after a break of 7 days; (8) transition plan is not a statutory subject for IEPs and it is improper, therefore, to include any discussion of child’s transition needs; (9) due process complaint did not raise specific issue of harmful effects of placement in public school.

 

ON APPEAL:  A.P. v. DOE, D. Haw. Civ. No. 12-493 HG-BMK – Affirmed, Doc. 41 (7/17/13):  (1) failure to raise issues in due process complaint cannot be cured by argument and evidence at hearing, absent DOE’s agreement to consider additional issues; (2) parent is entitled to reimbursement for private evaluation only if it is obtained in response to DOE evaluation; (3) IEP goals and objectives were adequate; (3) one hour of speech-language therapy per week, including sign language for student with autism was adequate; (4) IEP need not include statement of transition services from private to public school.

 

DOE-SY1112-071

Carl M. Varady

Kris Mura13-15486kami

Haunani H. Alm

7/6/2012

1.      Eligibility for special education;

2.      Unilateral private placement.

 

OUTCOME:  For Student.  Private placement appropriate

 

REASONING:  (1) DOE’s observation of student on two occasions in private special education school was an inadequate basis to find student ineligible for special education; (2) private psychological evaluation showed student had specific learning disability; (3) because student never attended public school, the DOE members of the eligibility team lacked sufficient information to evaluate him and parent’s input was not given appropriate consideration; (4) DOE’s reliance on student’s grades in denying eligibility was unreasonable because grades reflected special education services provided at private school; (5) DOE is ordered to reimburse private school tuition because it denied FAPE by denying eligibility and private school is an appropriate placement.

 

ON APPEAL:  DOE v. Patrick P., D. Haw. Civ. No. 12-438 LEK-BMK – Reversed, Doc. 35 (5/20/2013) – Grade 12 Student’s need for special education was not evident from DOE’s observations at private school.  Student showed no significant discrepancy between cognition and academic achievement on his assessments.  The DOE properly found him ineligible for IDEA services.

 

FURTHER APPEAL:  DOE v. Patrick P., 9th Cir. No. 13-16123 – affirmed, 7/14/2015: parent failed to demonstrate, based on private school performance (student never attended public school), that student had a severe discrepancy between achievement and ability.  Therefore, student was not eligible for IDEA services.

 

DOE-SY1112-070

Keith H.S. Peck

Michelle Pu`u

Richard A. Young

7/23/2012

1.      Least restrictive environment;

 

OUTCOME:  For Student.  Private school tuition reimbursed.

 

REASONING:  (1) IEP team did not consider placement in general math class or outside “workplace readiness program” despite student’s high-functioning ability in math; (2) IEP provision allowed student to participate with non-disabled students in non-academic settings, but it did not ensure that student would do so in order to acquire social skills.

 

ON APPEAL:  DOE v. S.C., D. Haw. Civ. No. 12-475 LEK-BMK – reversed in part, Doc. 27, 3/28/2013, 938 F.Supp.2d 1023:  (1) hearings officer reasonably concluded that FAPE was denied because student should have been mainstreamed in math class and socialization opportunities offered by DOE (having lunch with nondisabled students should student so choose) were inadequate; (2) 50% of tuition reimbursement is denied because parent acted unreasonably by requesting placement at Horizons Academy instead of collaborating with the DOE and objecting to its IEP in order to resolve concerns about public placement.

 

DOE-SY1112-067

Matthew C. Bassett

Michelle Pu`u

David H. Karlen

4/25/2012

1.      Whether DOE’s failure to pay private school tuition is a unilateral change of placement that denies FAPE and violates stay put;

2.      Preemption of Acts 128 and 129, SLH 2011;

3.      Whether reevaluation of student more than once a year disrupts education and denies FAPE.

 

OUTCOME:  For DOE.

 

REASONING:  (1) hearings officer lacks subject matter jurisdiction to decide whether Acts 128 and 129 are preempted by federal law; (2) although stay put order entered in DOE-SY1011-126 required DOE to pay private school tuition, hearing officer has no jurisdiction to issue a preliminary injunction enforcing that order; in any event, there is no evidence that student’s placement was changed by the nonpayments; (3) there is no evidence that the DOE made multiple assessments in violation of the IDEA or that any attempt to do so deprived student of educational opportunity.

 

ON APPEAL:  F.K. v. DOE, D. Haw. Civ. No. 12-240 ACK-RLP – affirmed, Doc. #41 (12/11/2012):  (1) evidence showed that DOE’s failure to pay Loveland’s tuition was not a unilateral change in placement because Student’s services were not affected.

 

FURTHER APPEAL:  F.K. v. DOE, 9th Cir. No. 13-15071 – affirmed, 11/26/2014, 585 Fed. App’x. 710.

 

RELATED PROCEEDING:  F.K. v. DOE v. Loveland Academy, D. Haw. Civ. No. 12-136-ACK-RLP – Claims dismissed, Doc. 245 (9/4/2015):  (1) unilateral placement issue decided in Civ. No. 12-240 is res judicata; (2) stay put issue is moot; (3) (a) Loveland had a duty under Act 129 to allow DOE to monitor Student; that duty does not conflict with the DOE’s duty to keep student records confidential under IDEA (Loveland did not pursue its claim that FERPA and HIPAA conflict with Act 129); (b) the IDEA requires the DOE to monitor students in private schools regardless of parental consent; (4) DOE is not entitled to damages for Loveland’s violation of Act 129 because the tuition withholding provision in HRS § 302A-443(i) (Act 129) is preempted by the IDEA; instead of withholding tuition, DOE should have filed for due process, injunctive relief, or a declaratory judgment.

 

DOE-SY1112-066

Matthew C. Bassett

Carter Siu

Haunani H. Alm

7/13/2012

1.      Improper development of IEP

2.      Unilateral private school placement;

3.      Stay put;

4.      Compensatory education

 

OUTCOME:  For Student.  Reimbursement for private school ordered.

 

REASONING:  (1) DOE adopted prior IEP without a meeting because it unilaterally decided that student’s needs had not changed; (2) DOE failed to have valid IEP in effect at beginning of school year; (3) student was entitled to stay put at private school under court order in Marcus I. v. DOE, D. Haw. Civ. No. 10-381 SOM-BMK, Doc. #68.  Therefore, stay put at private school continues during pendency of this case; (4) private school tuition is reimbursed because of denial of FAPE and private placement is proper for purposes of reimbursement; (5) student did not show why compensatory education should be awarded.

 

DOE-SY1112-065

Stanley E. Levin

Gary Suganuma

Richard A. Young

10/26/2012

1.      Evaluation of suspected disabilities;

2.      Adequacy of IEP PLEPs and Goals;

3.      Transition services from private to public school;

4.      Least restrictive environment

5.      IEP team members not knowledgeable about student;

6.      ESY

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE assessed child for some suspected disabilities at private school because that is what parents wanted; no need to mention dysgraphia in PLEPs because parents did not prove child had been diagnosed with that condition; (2) behavior not mentioned in PLEPs was considered by DOE; goals addressed needs described in PLEPs; (3) transition planning was adequate as DOE held monthly transition meetings, provided special services, and parents did not cooperate fully; (4) public school was LRE because of greater opportunities to learn with nondisabled children; (5) student had attended private school for five years, which is why DOE members of IEP team had no direct dealings with student; private school chose not to send teachers to IEP meeting; (6) DOE was justified in ending ESY services during spring break in order to see if student would be harmed.

 

ON APPEAL:  Matthew O. v. DOE, D. Haw. Civ. No. 12-612 DKW-RLP – affirmed, ECF Doc. 27, 2/5/2014.

 

DOE-SY1112-057

Keith H.S. Peck

Gary Suganuma

David H. Karlen

5/9/2012

1.      Need for 1:1 aide;

2.      ESY;

3.      Reimbursement for parental placement at private school.

 

OUTCOME:  For DOE (Student designated prevailing party, but relief was denied)

 

REASONING:  (1) DOE agreed that student needed a 1:1 adult aide, but none was provided in the IEP; nevertheless, claim was settled at resolution session; (2) evidence did not show regression in the absence of ESY services; in any event, parents settled claim for ESY at resolution session; (3) parent failed to offer evidence showing that private school was appropriate by providing educational instruction specially designed to meet the unique needs of their child.

 

ON APPEAL:  Heyly T.S. v. DOE, D. Haw. Civ. No. 12-327 ACK-KSC – affirmed, 4/15/2013:  (1) parent did not prove ABC School was an appropriate placement; (2) parents unreasonably enrolled student in “expensive” private school before Resolution session and did not challenge IEP that resulted from resolution session.

 

DOE-SY1112-055

Jerel D. Fonseca

Michelle Pu`u

Haunani H. Alm

8/31/2012

1.      Failure to evaluate mental health needs;

2.      Need for transfer plan for change from private school to public school;

3.      Adequacy of PLEPs and Goals and Objectives.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE’s agreement to conduct an emotional behavior assessment instead of a neuropsychological evaluation was sufficient to evaluate student’s mental health needs; (2) the IDEA does not require that an IEP include a transition plan to assist the child in transferring from private to public school; the child’s transition needs must be addressed, however, when they relate to proper subjects of the IEP; (3) DOE’s use of 2009 information in 2011 PLEPs was not improper because parent did not raise an objection at the IEP meeting or provide more current information.

 

ON APPEAL:  D.S. v. DOE, D. Haw. Civ. No. 12-533 DKW-RLP – (Carl M. Varady co-counsel for student).  Reversed, Doc. 41, 11/14/2013:  (1) DOE denied a FAPE by preparing IEP on the basis of stale information and by ignoring facts conveyed by parent and Loveland Academy about student’s behavior and mental health needs; (2) prior reimbursement order taken with stay put order in Civ. 10-53 establish Loveland as student’s current placement for stay put purposes.

 

FURTHER APPEAL:  DOE v. D.S., 9th Cir. No. 13-17677 – (Matthew Bassett counsel for student) dismissed 5/27/15 per stipulated motion (student accepted IEP given closure of private placement).

 

DOE-SY1112-047

Carl M. Varady

Michelle Pu’u

David H.  Karlen

5/24/2012

1.      Placement predetermined and inappropriate;

2.      Failure to have IEP in effect at start of school year;

3.      Reimbursement for unilateral parental placement;

4.      Statute of limitations;

5.      Compensatory education;

6.      Stay put.

 

OUTCOME:  For DOE (Student designated prevailing party, but relief was denied)

 

REASONING:  (1) Placement at private school selected by DOE was predetermined as shown by the school director’s presence at pre-placement IEP meetings; (2) DOE used “bin item technique” to defer discussion of items requested by parent in order to expedite IEP process; it was not responsible, therefore, for failing to complete IEP before the beginning of school year; (3) Failure to address “bin items” was not shown to deny a FAPE; (4) DOE’s proposed placement – a behavioral modification program without an academic component -- was inappropriate: “placement of Student there was ill advised, inappropriate, and potentially disastrous to Student and Student’s education”; (5) parental placement is appropriate as it provides individualized services and student is progressing; (6) tuition reimbursement claim for SY 2011-12 was untimely because it was filed more than 180 days after parent received DOE’s placement offer; (7) private school was not student’s stay put placement because after the period expired for which the Court had placed student at the private school in D.C. v. Department of Education, 550 F. Supp. 2d 1238 (D. Hawaii 2008), DOE agreed only to pay tuition, not that the school was an appropriate placement; (8) compensatory education denied because student received services at private school.

 

ON APPEAL:  Sam K. v. DOE, D. Haw. Civ. No. 12-355 ACK-BMK – affirmed in part and reversed in part, Doc. 46, 2/13/2013 – affirmed in all respects, except that reimbursement of private school tuition is not barred by statute of limitations, which is 2 years for bilateral placement.

 

Stay put granted, Doc. #35 (8/22/12) – stay put does not depend upon the merits of the case, including whether the due process request was timely.  Loveland Academy is the current placement for stay put purposes because of prior decisions that found it to be appropriate.

 

FURTHER APPEAL:  DOE v. Sam K., 9th Cir. No. 13-15486 – affirmed, 6/5/15, 788 F.3d 1033:  placement at Loveland Academy after expiration of a settlement agreement continued with implied consent of the DOE.  K.D. v. DOE, distinguished on grounds that the DOE did not propose a public school placement until halfway through the year in question.

 

DOE-SY1112-038

Keith H.S. Peck

Gary Suganuma

Richard A. Young

4/24/2012

1.      Failure to have IEP in effect at start of school year;

2.      Participation in IEP meeting by private school teacher;

3.      Inadequate IEP services;

4.      Private placement;

5.      Preemption of Act 129, SLH 2011 (HRS 302A-443(g))

 

OUTCOME:  For Student – reimbursement awarded for 3 months at private school.

 

REASONING:  (1) DOE denied FAPE by failing to call an IEP meeting to consider placement in an autism program and to include placement in an IEP by the start of the school year; (2) there was no need to invite private school teacher to IEP meeting because student had not been enrolled there long enough to make teacher knowledgeable about student’s needs; (3) DOE denied FAPE by failing to provide a 1:1 aide, regardless of whether parent requested one; (4) private placement offers an appropriate program for which reimbursement is granted, but placement is inappropriate because school lacks accreditation and staff lacks training in special education; no reimbursement required after November 2011 when a new IEP was offered but not challenged by parent; (5) hearings officer lacks subject matter jurisdiction to decide whether Act 129 is constitutional.

 

ON APPEAL:  Thomas W. v. DOE, D. Haw. Civ. No. 12-289 JMS-KSC – motion for stay put granted, appeal dismissed as moot, Doc. 26 (5/9/2013).

 

DOE-SY1112-034

Keith H.S. Peck

Berton Kato

Richard A. Young

6/21/2012

1.      Parent’s participation in IEP process;

2.      Adequacy of IEP’s description of 1:1 aide services.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE was justified in conducting IEP meeting without parent because of parent’s repeated requests for adjournments and limited cooperation in making child available for evaluation; (2) IEP did not have to specify how long 1:1 aide would work directly with student or “fade” into the background to increase student’s independence and reliance on other students (“buddy system”).

 

DOE-SY1112-032

Jerel D. Fonseca

Kris S. Murakami

Haunani H. Alm

7/2/2012

1.      Adequacy of four IEPs (Oct. 2010 to Aug. 2011);

2.      Failure to have IEP in place at beginning of school year;

3.      Unilateral private placement;

4.      Compensatory education.

 

OUTCOME:  For student.  Private school reimbursement for 2 years ordered.

 

REASONING:  (1) DOE staff failed to respond to parent’s questions and comments and were disengaged at IEP meetings; DOE failed to consider private psychological evaluation; (2) DOE terminated speech-language services in 2008 when student’s performance was borderline to average; no speech-language pathologist attended IEP meetings; (3) IEPs denied FAPE by failing to identify student’s needs and to include appropriate goals and services; (4) IEPs repeated prior goals to a large extent  and thus were not updated to meet student’s unique needs; (5) OT services were reduced from 60 to 30 minutes per week based on a limited review of handwriting and fine motor skills needs.

 

DOE-SY1112-028

Stanley E. Levin

Jerrold Yashiro

Richard A. Young

3/6/2012

1.      Private school placement after summary judgment that FAPE was denied by DOE’s failure to convene an IEP meeting and to have an IEP in place at beginning of school year;

2.      Failure of parent to notify DOE of unilateral private school placement.

 

OUTCOME:  For Student.

 

REASONING:  (1) private school is an appropriate placement for Student as it meets Student’s needs, and Student is making meaningful educational gains; (2) reimbursement of tuition is awarded for SY2011-12 despite parent’s failure to serve notice of private placement because DOE failed to offer an IEP or even to convene an IEP meeting for SY2011-12.

 

ON APPEAL:  DOE v. K.F., D. Haw. Civ. No. 12-210 JMS-BMK (removed from 1st Cir. Ct.; Toby M. Tonaki for appellant) – appeal withdrawn.

 

DOE-SY1112-027

Stanley E. Levin

Toby M. Tonaki

Haunani H. Alm

1/10/2012

1.      Private school placement after summary judgment that FAPE was denied by DOE’s failure to convene an IEP meeting and to have an IEP in place at beginning of school year.

 

OUTCOME:  For Student.

 

REASONING:  “Private School’s small school setting, multi-sensory teaching methods, and classroom accommodations, all helped Student make good academic progress in 2010-2011.”

 

DOE-SY1112-026

Susan Dorsey

Kris Murakami

Richard A. Young

3/27/2012

1.      Failure to conduct 3-yr re-evaluation and assess suspected disabilities;

2.      Adequacy of IEP (lack of socialization and sensory goals);

3.      Private placement.

 

OUTCOME:  For Student.  Reimbursement of private school tuition ordered.

 

REASONING:  (1) Student was last deemed eligible for special ed in 2011; therefore, no re-evaluation is required until 2014; (2) DOE considered assessments as well as a psychiatric evaluation to identify all suspected disabilities; (3) sensory and behavioral responses and socialization needs were mentioned in assessments but not addressed in the January 2011 IEP.  Parents did not specifically ask for communication or socialization goals, but it is the DOE’s duty to address all of Student’s deficits which affect Student’s ability to access education.  Its failure to do so denied FAPE; (4) August 2011 IEP added needed goals and thus did not deny FAPE; (5) performing arts school with college preparatory academic classes is an appropriate placement.

 

ON APPEAL:  Lainey C. v. DOE, D. Haw. Civ. No. 12-223 SOM-BMK – item # 4 above on appeal – Affirmed, Doc. 46 (4/30/2013).

 

FURTHER APPEAL:  Lainey C. v. DOE, 9th Cir. No. 13-16093 – affirmed, 3/2/2015.

 

DOE-SY1112-025

Stanley E. Levin

Berton T. Kato

David H. Karlen

4/13/2012

1.      Evaluation of suspected disabilities;

2.      Least restrictive environment;

3.      IEP team members’ knowledge of student;

4.      PLEPs are not complete and accurate;

5.      Private school placement.

 

OUTCOME:  For Student.

 

REASONING:  (1) IDEA does not require the DOE to conduct an evaluation of student before changing  placement from private to public school, but it must consider the possible harmful effects, which it did in a Behavior Assessment Report; (2) record does not show that student was placed in regular academic classes that may have been inappropriate in view of student’s inattention, borderline general language abilities, weak reading comprehension and math reasoning deficits; (3) IEP team members had adequate knowledge of student’s needs; (4) PLEPs did not state student’s actual performance level in reading, writing, and mathematics and omitted private school’s current profile of student;  IEPs, therefore, failed to meet student’s needs; (5) private school reports documented student’s progress which proves placement is appropriate.

 

DOE-SY1112-021

Jerel D. Fonseca

Toby Tonaki

Richard A. Young

10/18/2012

1.      Speech-language services required;

2.      Reimbursement for private placement;

3.      Reimbursement for private evaluation;

4.      Reimbursement for private speech-language services

 

OUTCOME:  For Student

 

REASONING:  (1) Student needs direct speech-language services based upon testimony of private psychologist and speech-language pathologist; (2) IEP PLEPs made no mention of speech-language problems, and goals failed to offer needed services; (3) special education teacher ended speech-language services without conferring with SLP; (4) parents are entitled to reimbursement with the exception of one private speech-language report that was not shared with the IEP team.

 

DOE-SY1112-20R

 

Keith H.S. Peck

Monica T. Morris

David H. Karlen

1/9/2014

1.      Predetermination of public school placement.

 

OUTCOME:  For DOE

 

REASONING:  (1) Evidence did not show that DOE had predetermined placement, although language in form letter could be interpreted that it had; (2) predetermination of placement violates the IDEA only when the school district fails to consider alternatives at the IEP meeting.

 

ON APPEAL:  A.S.L. v. DOE, D. Haw. Civ. No. 14-71 BMK – affirmed, 11/14/14:  (1) Court had jurisdiction to decide sua sponte that the AHO in 1112-020 lacked jurisdiction to decide whether DOE had failed to put an IEP in place – remand order was, therefore, proper; (2) evidence did not show that DOE would not consider private school placement; (3) parent’s complaint about the AHO’s qualifications after receiving an adverse result was untimely.

 

FURTHER APPEAL:  L.S. v. DOE, 9th Cir. No. 14-17443 – affirmed, 6/27/17.

 

DOE-SY1112-020

Keith H.S. Peck

Monica T. Morris

Haunani H. Alm

3/23/2012

1.      No IEP in effect at start of school year;

2.      Reimbursement for private placement;

3.      Stay put rights

 

OUTCOME:  For DOE (based upon denial of remedy).

 

REASONING:  (1) DOE’s failure to have an IEP in effect at the beginning of the school year was a denial of FAPE; (2) DOE agreed to pay for private placement until May 27, 2010, and Petitioners’ decision to maintain Student’s placement at the Private School after May 27, 2010, resulted in a unilateral placement at the Private School. Request for reimbursement filed in August 2011 is untimely because it was filed more than 180 days after the unilateral placement; (3) private school was not the stay put placement because while DOE agreed to pay tuition for a specific period, there was no agreement or order that placed student there.

 

ON APPEAL:  Lofisa S. v. DOE, D. Haw. Civ. No. 12-213 SOM-BMK (Badger Arakaki, co-counsel) – reversed and remanded, Doc. 27, 2/13/2013:  (1) DOE’s failure to have an IEP in effect was not raised by the due process request, and the issue was not, therefore, before the hearings officer; (2) due process request must be filed within 180 days of the period for which reimbursement is sought (SY2011-12), not necessarily the date of placement; (3) H.O. did not decide whether DOE conditioned its offer of FAPE on placement in public school and case is remanded for that purpose.

 

DOE-SY1112-018

Keith H.S. Peck

Berton Kato

Haunani H. Alm

1/23/2012

1.      Parent’s right to participate in IEP process;

2.      Adequacy of special education and related services.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE informed parent of need for IEP meeting within 30 days and confirmed meeting on date suggested by parent; parent sought to change date at last minute without explaining work or family issues that prevented him from attending as previously agreed; (2) occupational therapy services were discontinued because Student had functionally mastered the majority of necessary gross motor and fine motor skills and tasks that Student needs to function appropriately in the school setting; speech-language services was not an issue raised by the due process complaint, but services were adequate in any event.

 

DOE-SY1112-017

Keith H.S. Peck

Michelle Pu`u

Richard A. Young

1/3/2012

1.      Transfer plan from private to public school;

2.      Duration of ESY services.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE prepared an appropriate transfer plan as a supplement to the IEP and therefore addressed student’s unique needs; (2) duration of ESY services need not be stated in IEP; in any event, parties entered into a settlement agreement that specified what ESY services would be provided through Summer 2011, subject to review at that time.

 

ON APPEAL:  Donna S. v. DOE, D. Haw. Civ. No. 12-69 JMS-KSC – Affirmed, Doc. #20 (9/12/2012), 2012 WL 4017449.

 

DOE-SY1112-014

Jerel D. Fonseca

Carter Siu

Richard A. Young

3/14/2012

1.      DOE’s failure to implement out-of-state IEP pending development of new IEP;

2.      Adequacy of 2010 IEP;

3.      Private school placement.

 

OUTCOME:  For DOE.

 

REASONING:  (1) the credible evidence showed that the DOE was able to implement Student’s out-of-state IEP at the home school and offered to do so on several occasions; (2) IEP team considered out-state IEP as well as evaluations of student, noted needs in PLEPs and prepared goals addressing those needs; evidence showed services were sufficient and equal or greater than those offered in out-of-state IEP; (3) home school special education classes are an appropriate placement in view of the severity of student’s disability.

 

DOE-SY1112-012

Keith H.S. Peck

Jerrold G.H. Yashiro

Richard A. Young

1/10/2012

1.      Annual IEP review in cases of unilateral private school placements;

2.      Whether private school is a proper placement;

3.      Statute of limitations on reimbursement claim.

 

OUTCOME:  For Student

 

REASONING:  (1) failure to have a current IEP or to conduct an annual review results in the loss of educational opportunity or seriously infringes on the parents’ opportunity to participate in the IEP formulation process; parents who unilaterally place child in private school are entitled to receive an annual offer of FAPE; (2) Based upon Father’s testimony that Student is progressing behaviorally, socially, and in student’s communication abilities at the current private school, and with no evidence to the contrary, the Hearings Officer concludes that the current private school continues to be an appropriate placement for Student; (3) 180-day period for requesting reimbursement was tolled because DOE misinformed parent that FAPE would be provided only in public school; reimbursement granted until parent declined to attend new IEP meeting.

 

DOE-SY1112-009

Keith H.S. Peck

Michelle Pu`u

Haunani H. Alm

12/5/2011

1.     Inclusion of ABA therapy in IEP;

2.     Qualifications of paraprofessional replacing skills trainer;

3.     Description of 1:1 adult aide services in IEP;

4.     Transition from middle school to high school

5.     Videotaping of services.

 

OUTCOME:  For Student.

 

REASONING:  (1) ABA therapy for severely disabled student should have been included in IEP because the IEP Team agreed to provide the services; (2) given student’s numerous and profound disabilities, it was reasonable for parents to request information about the qualifications of educational aides (education and ABA training); (3) IEP team agreed to discuss transition to high school; discussions should have taken place at IEP meeting; (4) DOE’s denial of parent’s request for raw data and videotaping of ABA therapy should have been by prior written notice and denied FAPE.

 

DOE-SY1112-008

Keith H.S. Peck

Toby Tanaki

Richard A. Young

1/24/2012

1.      Whether math goal in IEP should have benchmarks and short-term objectives;

2.      Need for goal for planning activities;

3.      Placement at public school.

 

OUTCOME:  For DOE.

 

REASONING:  (1) the procedural inadequacy of failing to have short-term objectives or benchmarks for the math goal did not result in a loss of educational opportunity in light of student’s B grades; (2)  IEP addressed planner needs; (3) public school was appropriate placement based upon student’s high functioning.

 

DOE-SY1112-007

Keith H.S. Peck

Berton T. Kato

Haunani H. Alm

2/17/2012

1.      ESY;

2.      Whether reading services are adequate.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Even though the DOE wrongly reduced ESY services by finding that Student must recoup learned skills prior to an ESY period, there was no evidence that Student lost educational opportunity; (2) Due process request alleging that reading instruction is ineffective and that IEP objectives are minimal and insufficient did not raise an issue of whether reading program was defective, whether IEP goals are too broad, or whether Student requires a step-by-step approach to reading that allows Student to understand and distinguish vowel sounds.

 

ON APPEAL:  Annette K. v. DOE, D. Haw. Civ. No. 12-154 HG-BMK – Reversed and remanded, Doc. 24 (3/22/2013): (1) Court does  not give high deference to hearings officer’s decision because it does not explain why denial of ESY was procedural and not substantive; (2) rapid regression and technical problems with Kurzweil System show that failure to continue ESY services denied FAPE; (3) attorney’s fees denied for administrative hearing but awarded for appeal; (4) case is remanded to determine appropriate relief.

 

DOE-SY1112-005

Matthew C. Bassett

Monica T. Morris

Haunani H. Alm 5/21/2012

1.      Independent educational evaluation (“IEE”);

2.      Predetermination of placement;

3.      Identification of placement;

4.      Change of placement to public school.

 

OUTCOME:   For DOE.

 

REASONING:  (1) assessments used to craft an educational plan are not evaluations, so parent has no right to an IEE; (2) evidence showed that meeting of DOE personnel preparing for IEP did not predetermine matters discussed at the IEP; (3) failure to identify location of placement in PWN was a procedural violation of the IDEA, but it did not deprive student of a FAPE because parents were informed of location during IEP meeting; IDEA requires that type, not physical placement location, be specified; (4) lack of structure in private school and student’s increasing behavioral problems made private school an inappropriate placement; IEP team had sufficient evidence to change placement without an assessment.

 

ON APPEAL:  Jason E. v. DOE, D. Haw. Civ. No. 12-354 ACK-BMK (plaintiff pro se, Leslie C. Maharaj, special appearance) – dismissed, Doc. 94, 11/20/14:  student is enrolled at charter school and receives a FAPE under Section 504 of the Rehabilitation Act of 1973; case is therefore moot.  DOE is entitled to summary judgment because parent failed to prove lack of reasonable accommodations.

 

DOE-SY1112-003

Susan Dorsey

Jerrold G.H. Yashiro

Michelle Pu`u

Haunani H. Alm

3/13/2012

1.      Adequacy of IEPs for 2009-2011;

2.      Parental participation in IEP process

3.      Evaluation of student’s needs;

4.      ESY services;

5.      Private school placement;

6.      Compensatory education

 

OUTCOME:  For Student.

 

REASONING:  (1) Student with Rett Syndrome was provided with the same or very similar IEP goals and objectives from 2009-2011 and consistently made minimal academic progress; (2) DOE’s failure to advise parent of teacher’s concerns that Student was reaching a plateau in Student’s learning deprived parent of the opportunity to adequately participate in the IEP formulation process; (3) triennial re-evaluation was too limited to determine Student’s needs given minimal progress noted in PLEPs and suspicions of Rett Syndrome; (4) the IEP team did not consider Student's individual needs in all respects when considering Student’s need for ESY services; (5) denials of FAPE and appropriate private school program warrant placement of Student in private school; (6) extent and nature of FAPE denials warrant an award of compensatory education of two years at private school.

 

DOE-SY1112-002

Susan K. Dorsey

Gary S. Suganuma

Haunani H. Alm

7/25/2012

1.      Compensatory education

 

OUTCOME:  For Student.  Reimbursement of private school tuition for 1 year + ESY ordered.

 

REASONING:  DOE denied FAPE for two years by failing to address student’s needs in IEPs and copying same goals from one year to the next.  Student exhibited serious behavioral problems in public school, but has made impressive gains in private school.  Reimbursement of tuition for an additional year is reasonable in order to allow student to catch up for prior loss of services.

 

ON APPEAL:  DOE v. R.H., D. Haw. Civ. No. 12-481 HG-RLP – Affirmed, Doc. 22 (7/2/13)

 

 

 

 

 

 

DOE-SY1011-138

Keith H.S. Peck

Gary S. Suganuma

David H. Karlen

11/29/2011

1.     Parent’s participation in IEP process;

2.     Lack of behavioral support plan;

3.     ESY;

4.     Transition plan for change of schools

 

OUTCOME:  For DOE.

 

REASONING:  (1) Parent was not denied opportunity to attend IEP meeting where DOE sought to meet the statutory annual review requirement, parent could attend a subsequent meeting prior to the beginning of the school year to voice concerns, and parent was uncooperative in scheduling mutually acceptable dates; (2) DOE intended to prepare a behavioral support plan when student enrolled in the new school; (3) ESY after one day was adequate; (4) IEP need not include transition plan from private to public school.

 

ON APPEAL:  Rachel L. v. DOE, D. Haw. Civ. No. 11-756 LEK-BMK – Affirmed, Doc. # 32 (9/25/2012). 

 

DOE-SY1011-137

 

John P. Dellera

Michelle Pu`u

Richard A. Young

5/15/2012

(unpublished)

1.      Eligibility for FAPE to age 22

2.      Stay put

 

OUTCOME:  For DOE.

 

REASONING:  (1) Due process request dismissed because student is not eligible to attend public school after age 20, student failed to prove that special education and related services were reasonable accommodations in GED and CBASE programs, and estoppel claim was “not proven”; (2) student not eligible for IDEA rights, including stay put, after age 20.

 

ON APPEAL:  A.D. v. DOE, D. Haw. Civ. No. 12-307 JMS-KSC (Milton S. Tani for DOE) – denial of stay put from August 1, 2011 is reversed, Doc. #31 (10/25/2012) – (1) Plaintiff, a member of the class in RPK v. DOE, D. Haw. Civ. No. 10-436 DAE-KSC, raises “plausible and genuine arguments” that he is not bound by the class judgment and that he is entitled to a FAPE to age 22 based upon a factual record that differs from the class action; (2) the DOE’s refusal to pay Loveland Academy after student became 20 is a change of placement that violates IDEA’s stay put clause.

 

FURTHER APPEAL:  A.D. v. DOE, 9th Cir. No. 12-17610) (Gary Suganuma for DOE) – Affirmed 8/14/2013, 727 F.3d 911: (1) Stay Put Order is a collateral order subject to interlocutory appeal; appeal not moot even though student had reached 22 because issue of age eligibility was capable of repetition, yet evading review; (2) stay put applies after state age limit where student challenged the legality of the age limit itself.

 

DOE-SY1011-135

Carl M. Varady

Carter Siu

Haunani H. Alm

7/17/2012

1.      Eligibility for FAPE to age 22

 

OUTCOME  For DOE

 

REASONING:  Court’s judgment in R.P.-K. Class Action, D. Haw. Civ. No. 10-436 DAE-KSC, that FAPE ends at age 20 is binding on class members under the doctrines of res judicata, collateral estoppel, and law of the case.

 

DOE-SY1011-132

Keith H.S. Peck

Kris Murakami

Haunani H. Alm

12/30/2011

1.     ESY period too long;

2.     Speech language therapy not specified;

3.     Individual aide services.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Evidence did not show why ESY services were inadequate; student did not attend ESY 2011 classes that were offered; (2) evidence did not show that 1080 minutes per quarter of speech therapy in individual or small group settings was inadequate; (3) evidence did not show that IIS (aide) services were inadequate.

 

ON APPEAL:  Dale W. v. DOE, D. Haw. Civ. No. 12-61 SOM-KSC – Affirmed, Doc. #24 (9/25/2012).  Counsel are ordered to provide copies of Court’s decision to their respective clients.

 

DOE-SY1011-130

Jerel D. Fonseca &

Denise W.M. Wong

Carter Siu

David H. Karlen

2/10/2012

1.      Objection to testimony of psychologist;

2.      Evaluation of student’s disabilities;

3.      Eligibility for IDEA or 504 services;

 

OUTCOME:  For DOE.

 

REASONING:  (1) expert testimony is inadmissible if report is not provided to adverse party five days before hearing; (2) the evidence established that the DOE sought to evaluate student for special education and did not require parent to obtain an evaluation herself; (3) in any event, complaint regarding failure to evaluate is time-barred because it was filed more than two years after facts were known; (4) IDEA services could not be provided because parent did not consent to evaluation for special education.

 

DOE-SY1011-128

Jerel D. Fonseca

Kris Murakami

Richard A. Young

8/21/2012

1.      Adequacy of IEP PLEPs and Goals;

2.      ESY break of 3 weeks too long;

3.      Private Placement

4.      Compensatory education

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE staff testified PLEPs and Goals over two school years were sufficient; parent’s experts met student well after IEPs were written and lacked first-hand knowledge of needs at that time; DOE progress notes show student has made some progress; (2) special education teacher testified student “thrived” in her class in each of two years at issue:  student could remain focused for up to 15 minutes, pick up her toys and wash her hands; principal testified that student chewed less on inappropriate objects and did not take off her clothes as often; (3) home school placement was least restrictive environment because it allowed student to observe regular education students as “role models.”

 

ON APPEAL:  S.C. v. DOE, D. Haw. Civ. No. 12-524 ACK-KSC – affirmed, Doc. 23 (5/16/2013):  (1) Court lacks jurisdiction over issues not raised in the due process complaint; issues must be specified with particularity; (2) assessments performed months or years after the IEP do not prove that the IEP was inadequate when drafted; (3) DOE’s use of term “mentally retarded” was inappropriate, but the evidence did not show IEP goals and objectives were inappropriate; (4) evidence did not show that the DOE failed to implement IEP materially; (5) progress in private school does not show that DOE failed to offer a basic floor of opportunity.

 

DOE-SY1011-126

Matthew C. Bassett

Michelle Pu`u

Richard A. Young

4/9/2012

1.      Whether description of proposed placement was adequate and whether home school is appropriate;

2.      Adequacy of IEP services;

3.      Whether placement at home school was predetermined.

 

OUTCOME:  For DOE.

 

REASONING:  (1) The fact that eight meetings were needed to prepare IEP and parent’s departure from a meeting before placement was decided show that placement was not predetermined; (2) petitioner failed to prove that the wide range and quantity of services offered by the IEP was inadequate; (3) IEP provision calling for placement in a small group setting in a special education classroom at the home school with opportunities to socialize with non-disabled students was adequate.

 

Stay Put Order, 10/12/2011 -- Order in DOE-SY0809-030 approving tuition reimbursement made Loveland Academy the stay put placement.  Stay put only applies, however, while a due process proceeding is pending.  Therefore, stay put protections do not apply from the date the prior written notice changed placement until the due process complaint was filed.

 

ON APPEAL:  F.K. v. DOE, D. Haw. Civ. No. 12-240 ACK-RLP – affirmed, Doc. 41 (12/11/2012).

 

FURTHER APPEAL:  F.K. v. DOE, 9th Cir. No. 13-15071 – affirmed, 11/26/2014, 585 Fed. App’x 711.

 

RELATED PROCEEDING:  F.K. v. DOE v. Loveland Academy, D. Haw. Civ. No. 12-136-ACK-RLP – See DOE-SY1112-067.

 

DOE-SY1011-120

Keith H.S. Peck

Kris Murakami

Haunani H. Alm

8/31/2011

1.      Adequacy of 1:1 paraprofessional support for student with autism;

2.     Need for transition plan before student moved from private school to home school;

3.     Parent’s participation in IEP meeting;

4.     Tuition reimbursement for private school

 

OUTCOME:  For Student.  DOE ordered to reimburse and/or pay private school tuition.

 

REASONING:  (1) In order to meet Student’s unique needs, as IDEA requires, the DOE must discuss transition issues as parents requested and prepare a transition plan for student with autism who needs routine and predictability in areas such as assignment of different aides, moving between programs, and transferring from private to public school; (2) qualifications of paraprofessional aide and frequency and consistency of services were relevant to child’s unique needs and thus subjects the DOE must address in the IEP; (3) parent’s right to participate in IEP process was seriously impaired by DOE’s failure to consider issues raised by parents; (4) reimbursement of private school tuition is ordered until an appropriate IEP is developed for student because (i) the DOE denied a FAPE and (ii) the private school’s program is appropriate.

 

ON APPEAL:  DOE v. C.B. by Donna and Scott B., D. Haw., Civ. No. 11-576 SOM-RLP (Carter Siu for appellant); Defendant counterclaims for enforcement of stay put.

 

Stay put counterclaim is REMANDED.  Doc. # 52 (3/29/2012) -- The hearings officer is requested to clarify whether she found the private school to be an appropriate placement (triggering stay put) or only that it conferred some educational benefit (resulting in reimbursement of tuition for a specified period).

 

Decision on appeal -- Reversed, Doc. # 57, 5/1/2012:  “(1) the DOE was not required under the IDEA to address C.B.’s transition needs or develop a transition plan in the IEP…; (2) the AHO erred by considering the substance of C.B.’s paraprofessional services when C.B. complained about only the frequency of those services in his impartial due process hearing complaint; (3) any failure of the IEP of October 28, 2010, to sufficiently state the frequency of the one-to-one paraprofessional services was a procedural violation of the IDEA that did not deny C.B. a FAPE.”

 

Stay Put Granted, Doc. # 65, 6/26/2012:  Hearings Officer found that AMS was an appropriate placement and it is, therefore, student’s placement for purposes of stay put.  The DOE is therefore ordered to pay the costs of AMS from the date of the hearings officer’s decision to the conclusion of all legal proceedings related to the IEP in question.

 

DOE-SY1011-118

Denise W.M. Wong

Gary Suganuma

David H. Karlen

9/26/2011

1.      Whether student’s hearing problems, not raised in due process request, may be considered;

2.      Lack of current speech evaluation;

3.      Lack of behavior support plan to address increases in disruptive behavior;

4.      Inadequate speech services;

5.      ESY services inadequate;

6.      Child abuse by the DOE and failure to implement IEP;

7.      Private placement;

8.      Compensatory education;

9.      Reimbursement for psychological evaluation.

 

OUTCOME:  For Student.

 

REASONING:  (1) Although hearing problem was mentioned in an exhibit offered by DOE and raised during cross-examination of a witness, it would be excluded because notice was not included in request for hearing; (2) reduction of speech services for student with severe speech and language deficits from 560 minutes per quarter to 360, without a reevaluation, denied FAPE; (3) cut of speech services to 180 minutes because of disruptive behavior was a denial of FAPE; (4) DOE’s argument that additional services would not benefit student did not refute petitioner’s evidence that it would; (5) petitioner did not prove that increased behavioral problems were related to breaks in education; (6) removal of special education teacher and educational aide because of child abuse allegations being investigated by the Attorney General and their indefinite replacement by unskilled caretaker without notice to parent denied FAPE; (7) DOE ordered to reimburse cost of private placement through 12/31/2011 based upon appropriate program it offers and progress student is making; (8) compensatory education should be awarded for loss of speech services at home school, but no award is made because private school does not offer speech services; (9) parent did not request independent psychological evaluation, and cost of report is therefore an unrecoverable expert witness fee.

 

DOE-SY1011-115

Denise W.M. Wong

Michelle Pu`u

Haunani H. Alm

11/8/2011

1.     Qualification for IDEA services

 

OUTCOME:  For DOE.

 

REASONING:  Diagnosis of Asperger’s syndrome, ADHD, and other disabilities does not qualify student for special education unless other eligibility standards are met.  Student failed to prove that impairments interfered with ability to learn and that she needed special education and related services to benefit from her education.  Emotional impairments qualified student for 504 accommodations, however.

 

DOE-SY1011-111

Susan K. Dorsey

Jerrold G.H. Yashiro

Haunani H. Alm

5/7/2012

1.      Failure to evaluate suspected disabilities;

2.      Parental participation in IEP process;

3.      Inadequate PLEPs and Goals in IEP;

4.      ESY;

5.      Abuse of student by sped teacher and EA;

6.      Unilateral parental placement;

7.      Compensatory education

 

OUTCOME:  For Student – DOE ordered to pay private school tuition plus cost of psychological evaluation.

 

REASONING:  (1) Failure of DOE to evaluate student for distractible, off-task behavior and hearing impairment denied a FAPE; (2) Parent was denied meaningful participation in IEP process by DOE’s failure to notice language barrier and to provide interpreter; failure to include reasons for denial of services in a Prior Written Notice in parent’s native language also violated parental rights that amounted to a denial of FAPE; (3) PLEPs repeated evaluation summary but did not show how Student’s disability affected involvement and progress in the general education curriculum; annual goals were not measurable because the PLEP lacked adequate baseline information; (4) IEP team denied FAPE by denying ESY services without considering factors other than regression; (5) DOE placed sped teacher and EA on administrative leave, but evidence of abuse of student was insufficient; (6) public school was not an appropriate placement because EA lacked experience with severe disabilities and student needed an intensive program of support in a small group setting; (7) private school tuition for one school year and two ESY periods awarded as compensatory education.

 

DOE-SY1011-110

Keith H.S. Peck

Kris Murakami

Richard A. Young

10/13/2011

1.     ESY services;

2.     Parent’s participation at IEP meetings.

 

OUTCOME:  For DOE.

 

REASONING:  (1) evidence showed that low-functioning student did not lose skills during breaks of 21 days, and ESY sooner than that was not necessary; (2) IEP team considered student’s disability level in considering ESY as requested by parent.

 

DOE-SY1011-109

Keith H.S. Peck

Steve Miyasaka

Haunani H. Alm

8/15/2011

1.     Right to IEP of private school student;

2.     Reimbursement of private school tuition

 

OUTCOME:  For Student.  DOE ordered to reimburse and/or pay private school tuition.

 

REASONING:  (1) DOE erroneously advised parent that child must enroll in public school before an IEP meeting may be held.  As a result, preparation of IEP was delayed for 6-1/2 months, which denied FAPE; (2) AMS, a private school for children with autism, is an appropriate placement.

 

DOE-SY1011-108

Keith H.S. Peck

Berton Kato

Richard A. Young

9/1/2011

1.     Whether DOE is required to prepare IEPs for student enrolled in private school;

2.     Reimbursement of private school tuition

 

OUTCOME:  For Student.  DOE ordered to reimburse private school tuition.

 

REASONING:  (1) DOE is required to provide a FAPE to all age-eligible students with disabilities, including those in private school; DOE’s offer to prepare IEP for education in public school was inadequate; (2) private school’s program was appropriate as student made meaningful educational progress.

 

DOE-SY1011-105RR

Susan K. Dorsey

Carter K. Siu

Richard A. Young

8/11/2016

unpublished order

1.      Mootness

 

OUTCOME:  For DOE

 

REASONING:  (1) reimbursement for speech-language services after 2014 was not requested in the due process request; (2) DOE need not evaluate student because a private psychologist has already done so and an evaluation now would not determine student’s needs under the 2010 IEP; (3) DOE has paid all private school tuition and continues to do so.  There being no effective relief outstanding, the case is moot without a decision on the merits.

 

ON APPEAL:  Ria L. v. DOE, D. Haw. 16-435 DKW-RLP – pending.

 

DOE-SY1011-105RR

Susan K. Dorsey

Carter K. Siu

Richard A. Young

4/15/2015

unpublished order

1.      Whether abuse of student denied FAPE;

2.      Remedy for denial of FAPE

 

OUTCOME:  For Student.  DOE’s motion for summary judgment dismissing due process complaint as moot is denied.

 

REASONING:  The district court in Civ. 14-34 vacated AHO’s decision in DOE-SY1011-105R, and without an admission of liability by the DOE, the issues decided therein remain unresolved.  AHO subsequently granted DOE’s motion for leave to file an interlocutory appeal wherein the court was asked to decide whether the DOE, having paid more than sought in the Request for Due Process, must admit liability before the case is rendered moot.

 

ON “INTERLOCUTORY” APPEAL:  DOE v. Ria L., D. Haw. Civ. No. 15-164 DKW-BMK – remanded to AHO, Doc. 27, 3/31/16: an admission of liability is not needed to dismiss case that is otherwise moot.

 

DOE-SY1011-105R

Susan K. Dorsey

Carter K. Siu

Haunani H. Alm

12/27/2013

1.      Whether allegations of abuse denied FAPE;

2.      Remedy for any denial of FAPE.

 

OUTCOME:  For Student

 

REASONING:  (1) Allegations by a paraprofessional tutor of physical and verbal abuse of a disabled student by an educational aide (“EA”) were credible, and the testimony of the EA and sped teacher were not credible (decision at 48); (2) physical and psychological abuse having been established, the DOE denied a FAPE; (3) student is placed in private school as compensatory education, including reimbursement for past tuition.

 

ON APPEAL:  DOE v. Ria L., D. Haw. Civ. No. 14-34 DKW-RLP – vacated and remanded, Doc. 40, 1/27/15:  Retired AHO’s decision does not adequately reconcile credibility issues needed to determine whether student was subject to abuse.  Case is therefore remanded to a new AHO for such determination.

 

DOE-SY1011-105

Susan K. Dorsey

Carter Siu

Haunani H. Alm

11/29/2011

1.     Provision of FAPE to student with limited English proficiency;

2.     Improper evaluation by unqualified staff;

3.     Placement in private school;

4.     ESY.

 

OUTCOME:  For Student.

 

REASONING:  (1) DOE should have provided Tagalog interpreter for parent at IEP meetings; (2) inconsistencies in testings indicate student should have been reevaluated for moderate autism rather than mental retardation; (3) unskilled aides did not provide proper support in public school; (4) PLEPs and goals and objectives were inadequate in light of autism classification and because they remained virtually the same from year to year with minimal progress; (5) parent is entitled to reimbursement for tuition after unilateral placement at private school plus transportation costs as compensatory education; (6) ESY was not determined in light of student’s unique needs but solely on the basis of a winter break; (7) parents are entitled to reimbursement for a neuropsychological evaluation because it is a related expense to the private placement.

 

ON APPEAL:  SOH v. Ria L., Haw. 1st Cir. Ct. No. 11-1-3187, removed to D. Haw. Civ. No. 12-007 DAE-KSC – Vacated and remanded, Doc.27 (7/31/2012): (1) Due process request did not raise issues of (a) Tagalog interpreter; substance of ESY services; (2) court shall consider additional evidence on review  that is non-cumulative, relevant and admissible; ; (3) failure to evaluate is time-barred, although events outside the 2-year limitations period may be considered in assessing events within that period; (3) IEP was adequate because student was making progress; (4) on remand, hearings officer is to determine whether allegations of abuse denied FAPE, and if so, what the remedy should be.

 

DOE-SY1011-104

Susan K. Dorsey

Jerrold G.H. Yashiro

David H. Karlen

10/2/2011

1.      Evidentiary effects of the invocation of Fifth Amendment rights (self-incrimination) by special education teacher regarding allegations of child abuse;

2.      Failure to provide autism-specific services;

3.      Speech-language services;

4.      Private placement;

5.      ESY services after 18 days;

6.      Compensatory education

7.      Reimbursement for private evaluation.

 

OUTCOME:  For Student.

 

REASONING:  (1) Special education teacher’s pleading of the 5th Amendment would not be taken as proof of child abuse; (2)  services were not intensive enough; (3) functional behavior assessments did not show how to deal with behavior in a way that would teach Student rather than punish; (4) there was no evidence that DOE personnel had sufficient training to adequately deal with Student’s behavior problems; (5) speech-language services resulted in significant educational progress; (6) unilateral private placement was reasonable and appropriate in view of allegations of child abuse and evidence that private placement was proper; (7) the DOE’s low expectations for the student are unjustified, and a break of 7 rather than 18 days should trigger ESY services; (8) two years of compensatory education at private school is appropriate; (9) the cost of the private psychological evaluation is reimbursed because it was necessary before student was placed at the private school.

 

DOE-SY1011-103R

John P. Dellera

James Raymond

David H. Karlen

6/7/2013

 

1.     Compensatory education;

2.     Rule-out for CAPD

 

OUTCOME:  For DOE

 

REASONING:  (1) Compensatory education in the form of payment of Loveland Academy’s tuition for prior years is denied because Court previously denied statutory reimbursement and Loveland failed to “diagnose” student’s mental disabilities; (2) mental health counseling for one year recommended by evaluation conducted jointly by parties is ordered, not as FAPE, but as compensatory education.

 

ON APPEAL:  J.T. v. DOE, D. Haw. Civ. No. 11-612 LEK-BMK – reversed and remanded in part, ECF Doc. 87 (3/24/14):  (1) denial of statutory reimbursement did not preclude a compensatory education award of past tuition; (2) Loveland’s tuition would not be reimbursed because student did not need intensive mental health services; speech-language services were needed, but they could not be separated from unneeded mental health services; (3) hearings officer on remand could issue a preliminary decision and retain jurisdiction over the issue of CAPD rule-out; (4) case is remanded to decide whether DOE’s tests are sufficient to rule-out central auditory processing disorder in this case.

 

FURTHER APPEAL:  See DOE-SY1011-103.

 

DOE-SY1011-103***

Denise M.W. Wong

Steve Miyasaka

David H. Karlen

9/12/2011

 

 

1.      Failure to include parent in IEP meetings in 2009 and 2010;

2.      IEPs did not address auditory processing deficits, speech therapy, or mental health needs;

3.      Reimbursement for private school tuition;

4.      Compensatory education.

 

OUTCOME:  For DOE.  Student deemed to be prevailing party to the extent that speech therapy was awarded as compensatory education if (i) child is diagnosed as having a receptive language disorder and (ii) additional speech therapy is found to be appropriate at that time.

 

REASONING:  (1) Failure to notify parent of IEP meeting in 2009 denied FAPE; failure to include parent in 2010 IEP meeting is excused because DOE had to meet its annual deadline and parent attended subsequent meetings; (2) there was no need for DOE to assess child’s mental health needs because psychiatrist’s report was one-sidedly based on information provided by mother, DOE teachers were not aware of any behavioral problems, behavioral problems at private school were not known at the time of the IEP meeting, and they were caused by private school frustrating student by underestimating his ability; (3) student should have been assessed for communication deficits, but there was no denial of FAPE because DOE was willing to make an assessment after parent enrolled student in private school; (4) reimbursement of private school tuition denied because placement was based on nonexistent mental health needs; (5) compensatory education denied because cost of speech-language services was not proven.

 

ON APPEAL:  J.T. v. DOE, D. Haw. Civ. No. 11-612 LEK-BMK (John P. Dellera for student, James Raymond for DOE) – reversed and remanded, Doc. # 27, 5/31/2012:  (1) DOE’s failure to include parent in IEP meetings and its failure to consider parent’s comments and psychologist’s report regarding suspected disabilities denied FAPE; (2) reimbursement for unilateral placement denied because (i) child’s behavioral outbursts show placement was inappropriate; and (ii) due process complaint was not filed within 180 days of “de facto” placement; (3) case is remanded for determination of compensatory education after parties jointly select and pay for neutral evaluation of mental health and communication needs; parties to bear own attorney’s fees on remand.

 

FURTHER APPEAL:  J.T. v. DOE, 695 F. App’x 227 (9th Cir. No. 14-16143 (John P. Dellera for student, Kevin Richardson for DOE) -– reversed and remanded, 8/14/17:  (1) Placement at private school occurred when student was enrolled there; due process complaint was therefore filed within statutory period; (2) court should reconsider whether private placement was proper based on whether its program was designed to meet student’s needs on date of enrollment; events thereafter are irrelevant; (3) court has “broad discretion” to decide what, if any, tuition reimbursement should be made; (4) denial of attorney’s fees on remand is vacated.

 

ON REMAND:  J.T. v. DOE, D. Haw. Civ. No. 11-612 LEK-RLP (John P. Dellera for student, Kevin Richardson for DOE) – reversed in part, Doc. # 138, 5/31/2018:  (1) Loveland was a

proper placement because it reasonably met student’s needs; (2) tuition reimbursement of 25% ($73,350) is awarded; amount was reduced because (i) parent failed to cooperate fully with DOE’s evaluation that might have avoided private placement, (ii) Loveland’s intensive mental health services exceeded student’s needs, and (iii) student exhibited behavioral issues at Loveland that were not observed in public school.

 

DOE-SY1011-101

Keith H.S. Peck

Kris Murakami

Haunani H. Alm

10/19/2011

1.      Failure of DOE to have IEP in effect at beginning of school year;

2.     Validity of Act 129, SLH 2011;

3.     Private placement.

 

OUTCOME:  For Student.

 

REASONING:  (1) DOE conceded that its failure to have an IEP in effect for four days at beginning of school year was a denial of FAPE; (2) private placement was proper, and given denial of FAPE, DOE is required to pay private school tuition for SY 2011-12 and ESY 2012; (3) validity of Act 129 does not involve placement or other issues within subject matter jurisdiction of hearings officer.

 

DOE-SY1011-100

Denise Wong

Steve K. Miyasaka

Richard A. Young

10/28/2011

1.      Inadequate IEP (no ABA therapy, skills trainer, 1:1 speech pathologist, mental health services, OT/PT);

2.      ESY for any break in education;

3.      Private school tuition reimbursement;

4.      Reimbursement of psychological evaluation.

 

OUTCOME:  For Student.

 

REASONING:  (1) the March 3, 2009 IEP failed to accurately describe Student’s behavioral and mental health needs; (2) it was inappropriate to reduce Student’s OT services to 90 minutes per quarter as Student had sensory processing issues; (3) Student’s progress at the current private placement has been described as phenomenal, with tremendous gains academically, socially, and physically; (4) Petitioners shall be awarded as compensatory education the costs of

placement at the current private placement for one year.

 

DOE-SY1011-099

Susan K. Dorsey

Gary S. Suganuma

Haunani H. Alm

6/20/2011, amended 6/30/11

1.     IEP meeting requirements;

2.     Evaluation of suspected disability;

3.     Participation in IEP meeting by guardian with limited English proficiency;

4.     Criteria for ESY;

5.     Compensatory education

 

OUTCOME:  For Student. 

 

REASONING:  (1) meeting of guardian, sped teacher, and principal was not a proper IEP meeting that could revise goals and objectives; (2) DOE was required to provide interpreter for non-English-speaking guardian; (3) DOE did not evaluate student in all suspected areas of disability because it failed to order a visual evaluation; (4) IEP goals were inappropriate because visual deficits were not considered; (5) DOE improperly limited ESY analysis to consideration of regression and recoupment; (6) compensatory education is denied without prejudice; Student may renew claim after DOE provides student with a complete eye examination; (7) DOE denied guardian meaningful participation in the IEP process by failing to provide a translator at IEP meetings and by failing to describe procedural safeguards in an easy to understand format and/or in the guardian’s language.

 

DOE-SY1011-098R

John P. Dellera

James Raymond

Richard A. Young

6/5/2013

1.     Compensatory education

 

OUTCOME:  For DOE

 

REASONING:  (1) Compensatory education in the form of payment of Loveland Academy’s tuition for prior years is denied because award must be prospective; (2) speech-language therapy in weekly one hour pull-out sessions for 78 months is ordered, not as FAPE, but as compensatory education because that is what student needed before he attended Loveland for two years.

 

ON APPEAL:  I.T. v. DOE, D. Haw. Civ. No. 11-676 LEK-KSC – reversed, Doc. 68 (12/17/2013):  (1) reimbursement of $44,000 in private school tuition is awarded because (a) student made commendable progress; (b) the DOE did not offer a FAPE until after the start of the school year; and (c) current or future services would not compensate for past denials of FAPE; (2) reimbursement is limited to SY 2010-2011 because further attendance was not needed to recoup benefits lost from past denials of FAPE; (3) the DOE did not prove Loveland’s rates are unreasonable; Loveland need not comply with DOE standards for speech language professionals; (4) reimbursement is limited to 25% because student did not prove mental health services were needed to provide a FAPE in SY 2010-2011, value of speech-language cannot be severed from other services, and attendance at Loveland could not be limited to speech-language.

 

DOE-SY1011-098

Denise Wong

James Raymond

Jerrold G.H. Yashiro

Richard A. Young

10/6/2011

 

 

1.     Evaluation of suspected disabilities;

2.     Inappropriate IEP goals and objectives

3.     Least restrictive environment

4.     Reimbursement for private placement

 

OUTCOME:  For DOE

 

REASONING:  (1) DOE was not required to evaluate student’s need for mental health services because behaviors at home were not observed at school; (2) DOE was not required to evaluate student for auditory processing deficits in Grade 3 because at the time of the IEP meeting, parent had not yet received a psychologist’s report concluding that student had that disability and there was no evidence thereof in the five prior years; (3) PLEPs did not have to address behavioral issues because teacher testified there were none; (4) IEPs were appropriate because student was progressing.

 

ON APPEAL:  I.T. v. DOE, D. Haw. Civ. No. 11-676 LEK-KSC (John P. Dellera for student) – (Amended Order) Affirmed in part and vacated and remanded in part, Doc. #31 (9/11//2012):  (1) DOE denied FAPE by failing to provide for speech-language services from March 2009 to August 2010; (2) reimbursement for private school denied because IEP offered after student unilaterally withdrew from public school offered a FAPE; (3) DOE violated its duty to evaluate student for CAPD, but there was no denial of FAPE because student did not have CAPD; (4) DOE had no duty to evaluate student for mental disorder because parent did not specifically request it, psychologist’s diagnosis was linked to CAPD, and behavioral issues were not observed at school; (5) case remanded to determine award of compensatory education. 

 

DOE-SY1011-094

Jerel D. Fonseca

Jerrold G.H. Yashiro

Richard A. Young

8/11/2011

1.      Need for transfer plan from private to public school;

2.     Adequacy of IEP goals and objectives

3.     Placement in public school;

4.     Reimbursement of private school tuition.

 

OUTCOME:  For Student.  DOE ordered to reimburse and/or pay private school tuition.

 

REASONING:  (1) Regression and violent, self-injurious behavior caused by prior attempts to transfer low-functioning student with autism required that DOE develop an adequate transfer plan in order to address student’s needs; (2) failure to recognize mental health needs in IEP goals and objectives was a denial of FAPE; (3) noisy, crowded environment in public school (fully self-contained class was in main hallway) was inappropriate; (4) private school was an appropriate placement because it offered mental health services and student was progressing in living skills and cognitive skills.  Occasional violent behaviors resulted from increased challenges in the program being offered.

 

DOE-SY1011-093

Keith H.S. Peck

Kris S. Murakami

Haunani H. Alm

10/17/2011

1.     DOE’s failure to have IEP in effect at beginning of school year

2.     Stay put

3.     ESY services

4.     Whether Act 129, SLH 2011 violates Section 504.

 

OUTCOME:  For Student.  Stay put at private school granted.

 

REASONING:  (1) IEP in effect at the beginning of the school year was identical to one that denied FAPE per decision in DOE-SY-1011-023, hence no valid IEP was in place at the beginning of the school year; (2) IEPs did not describe ESY services needed until January 2011; (3) decision in DOE-SY1011-023 is treated as an agreement by the DOE to private placement under 34 C.F.R. § 300.518(d); because student aged-out of that pre-school placement, the stay put placement becomes the current private school, which offers a program that approximates the pre-school program; (4) Act 129 issue was not pursued at the administrative hearing.

 

ON APPEAL:  DOE v. M.E., Cir. Ct. – affirmed, 4/25/2012.

 

DOE-SY1011-092

Keith H.S. Peck

Jerrold G.H. Yashiro

Richard A. Young

7/15/2011

1.     Private school placement;

2.     Parent’s right to participate in IEP meeting

 

OUTCOME:  For Student.  DOE ordered to reimburse private school tuition.

 

REASONING:  (1) DOE denied parent the right to participate in IEP meeting by proceeding in absence of mother who could not attend because she was involved in an automobile accident en route to the meeting.  Mother arrived one hour late, but summary of meeting concluded in her absence and opportunity to convene another IEP meeting were not adequate substitutes for full participation where parent had material information to provide regarding child’s disability and need for private school; (2) private school was an appropriate placement.

 

DOE-SY1011-087

Jerel D. Fonseca

Gary S. Suganuma

Haunani H. Alm

7/1/2011

1.     Evaluation of student;

2.     Extended school year;

3.     Private school placement.

 

OUTCOME:  For Student.  DOE ordered to reimburse private school tuition.

 

REASONING:  (1)  DOE evaluated student for ADHD but did not confirm or deny Asperger’s or bipolar disorder; (2) IEP was inadequate because it was based upon outdated PLEPs; (3) anxiety caused by Asperger’s syndrome presented an unfilled need for mental health services; (4) ESY requirement not updated; (5) public school with 1,200 students was inappropriate where student needed small, quiet environment.

 

DOE-SY1011-084

DOE-SY1011-005

Consolidated

Jerel D. Fonseca

Kris Murakami

Richard A. Young

9/20/2011

 

 

1.     Inadequate evaluation of disabilities;

2.     Inadequate goals and objectives;

3.     Lack of autism-specific services;

4.     Reimbursement of tuition for private placement.

 

OUTCOME:  For Student.  Reimbursement for private placement ordered.

 

REASONING:  (1) Although academic skills assessment was incomplete, IEP team had received an adequate evaluation of behavioral and speech language needs that were most important; (2) IEP failed to describe severe behavioral problems and did not contain services needed to deal with them; (3) although the home school offered socialization in the least restrictive environment, student first needed to control behavior and develop communication skills; student regressed while at home school, which is indicative that placement there is inappropriate and that student needs autism-specific services provided by private school; (4) parent could not complain about the lack of an academic skills assessment because private school’s report was not provided to the IEP team.

 

ON APPEAL:  Aaron P. v. DOE, D. Haw. Civ. No. 11-635 ACK-RLP) (consol. DOE v. Puakielenani P., 1st Cir. Ct. No. 11-1-2515, removed to D. Haw. Civ. No. 11-711 ACK-RLP) – affirmed in part and remanded in part, Doc. #100 (9/17/2012) 2012 WL 4321715:  (1)  administrative exhaustion does not apply to motion for stay put unless the motion is based upon a denial of FAPE; thus, claim that violation of stay put denied FAPE must be raised first at the administrative level; (2) issue of Act 129’s validity is not ripe because stay put payments are being made; (3) DOE’s claim for equitable relief could include restitution of funds paid pursuant to stay put; payment does not, therefore, render claim moot; (4) parent’s failure to provide data to DOE did not preclude claim that DOE failed to evaluate child; (5) hearings officer’s findings regarding denial of FAPE (2009 IEP) and provision of FAPE (2010 IEP) were thorough and thoughtful; (6) case is remanded to determine whether hearings officer used correct standard to determine placement, whether DOE implemented IEP, whether cost of private evaluations should be reimbursed, and whether compensatory education should be awarded; (7) parental placement was appropriate despite lack of licensed staff; private placement need not be a “school” under state law.

 

DOE-SY1011-084R

DOE-SY1011-005R

Consolidated

Jerel D. Fonseca

Kris Murakami

Richard A. Young

5/3/2013

1.      Standard to determine placement;

2.      Implementation of IEP;

3.      Reimbursement for private evaluations;

4.      compensatory education

 

OUTCOME:  For Student

 

REASONING:  1) Placement factors specified in Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1400-01 (9th Cir. 1994) were based on facts known to the IEP team when the 2010 IEP was prepared; private school placement is justified by the severity of student’s disability and inability to succeed in the home school; (2) Student made progress after returning to home school for 2-1/2 months, although self-injurious behaviors increased and progress measured included nine months at private school; DOE implemented IEP despite video-taping by parent for 2 hours per week that distracted Student and made staff uncomfortable; (3) compensatory education denied for 2-1/2 months student attended home school because parent’s “excessive” videotaping at school distracted student and intimidated DOE staff; (4) cost of private evaluation denied where DOE conducted its own evaluation.

 

DOE-SY1011-082

Joseph L. Rome

Michelle M.L. Puu

Richard A. Young

6/14/2011

1.     Parents’ participation in IEP process;

2.     Private school’s participation in IEP process;

3.     Private school placement

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE was justified in holding IEP meeting on date parent was sick because it could not re-schedule a date convenient for DOE participants prior to the annual review date; (2) home school was appropriate placement for high-functioning student with autism; (3) IEP was appropriate even though updated information was not included because parent’s consent to provide it was not received until after the IEP meeting.

 

ON APPEAL:  Doug C. v. DOE, D. Haw., Civ. No. 11-441 KSC (Keith H.S. Peck for appellant), Doc. # 24, 12/12/2011 – affirmed.  (1) DOE provided ample opportunities for parent to participate in IEP meeting, either personally or by telephone.  Parent attended subsequent IEP review meeting, but had no comments on the IEP.  Parent’s nonattendance at earlier IEP meeting, therefore, was not a denial of FAPE; (2) IDEA does not require a transition plan to move from private to public school, and record did not show that a plan was required to meet student’s unique needs.

 

FURTHER APPEAL:  9th Cir. No. 12-15079 (Keith Peck for appellant) – Reversed and remanded, 6/13/2013, 720 F.3d 1038: (1) “The fact that it may have been frustrating to schedule meetings with or difficult to work with [parent] … does not excuse the [DOE]’s failure to include him in [student]’s IEP meeting when he expressed a willingness to participate”; (2) DOE’s argument that IDEA services would “lapse” if a new IEP was not in place by the annual review date is untenable; there is no evidence that continuing prior IEP until parent could attend annual review IEP meeting would not be in student’s interest; (3) reimbursement of private school tuition may be ordered during IDEA review proceedings.

 

DOE-SY1011-76R***

Keith H.S. Peck

Kris Murakami

Richard A. Young

12/20/2012

(Remand)

1.      Need for 1:1 aide

 

OUTCOME:  For Student

 

REASONING:  Student with autism needed close adult supervision to deal with language delays and behavioral problems.  Failure to provide 1:1 aide was a denial of FAPE, and private school was a proper placement.  Thus, parent is entitled to reimbursement of one year’s tuition at private school.

 

ON APPEAL:  DOE v. J.G., D. Haw., Civ. No. 13-29 DKW-BMK (consol. Civ. No. 11-523) (Carter Siu for DOE) – reversed, Doc. 28 (2/24/14):  (1) Hearings officer did not cite evidence that student needed 1:1 services; instead, he relied on evidence that Judge Ezra found was insufficient (student needed “close adult supervision,” but that does not necessarily mean 1:1 services).  (2) There being no denial of FAPE, reimbursement is denied.

 

FURTHER APPEAL:  Howard G. v. DOE, 9th Cir. No. 14-15545 (Kirstin Hamman for student) – reversed and remanded, 11/3/2016:  AHO’s ruling that student needed 1:1 aide “reflects careful, impartial consideration of all the evidence and sensitivity to the complexity of the issue.  Given the officer’s specialized expertise, his conclusion is entitled to substantial deference.”  Case is remanded so that district court can reconsider its order reversing the AHO.

 

ON REMAND:  (Robert C. Thurston, pro haec vice for student) (1) AHO’s decision finding denial of FAPE is affirmed; (2) reimbursement of costs at Maui Autism Center granted from 11/4/2010 to start of SY 2011-12 and otherwise denied without prejudice.  D. Haw. Civ. No. 11-523 DKW-KSC, Doc. 89 (1/29/18).

 

REIMBURSEMENT MOTION:  Equity favors reimbursement of $249,100 from March 2011 to June 2014 plus retroactive payments to September 2009.  Private program provided by CARD/AMS on Maui was proper, student made progress, and DOE denied parents meaningful participation in the IEP process by failing to communicate with them.  D. Haw. Civ. No. 11-523 DKW-KSC, Doc. 116, 5/17/18.

 

DOE-SY1011-076

Keith H.S. Peck

Kris Murakami

Richard A. Young

8/3/2011

 

 

1.      DOE’s failure to have an IEP in effect at the beginning of the school year;

2.      Mental health services (1:1 aide)

 

OUTCOME:  For DOE.

 

REASONING:  (1) Inadequate IEP satisfied DOE’s obligation to have an IEP in effect at the start of the school year; (2) Student had had only 2 or 3 “meltdowns” in the last six months and might go for “weeks without a meltdown,” so he had no need for specific mental health services.

 

ON APPEAL:  Howard G. v. DOE, D. Haw. Civ. No. 11-523 DAE-BMK – vacated in part and remanded, Doc. 27 (6/29/2012):  remanded to consider student’s need for 1:1 aide.

 

DOE-SY1011-058

Jerel D. Fonseca

Steve Miyasaka

Richard A. Young

7/12/2011

1.      Termination of special education

 

OUTCOME:  For DOE.

 

REASONING:  IEP team terminated special education services in accordance with 20 U.S.C. § 1414(c) because student’s performance showed further services were not needed; further evaluations were conducted by DOE personnel at parent’s request. 

 

DOE-SY1011-046

Keith H.S. Peck

Kris Murakami

Richard A. Young

5/31/2010

1.      Evaluation for special education;

2.      Reimbursement for private school tuition.

 

OUTCOME:  For DOE.

 

REASONING:  There was no evidence that student has an ADHD diagnosis or that he needs special education and related services.  School psychologist testified that student has average ability, based upon WIAT and Woodcock-Johnson III tests.

 

ON APPEAL:  Scot S. (Lea) v. DOE, D. Haw. Civ. No. 11-373-DAE-KSC – affirmed, Doc. # 22 (1/9/2012).

 

DOE-SY1011-037

Stanley E. Levin

Steve K. Miyasaka

Richard A. Young

1/21/2011

 

 

1.      Denial of FAPE;

2.      Least restrictive environment.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Evidence did not show that DOE’s evaluation of student’s disability was erroneous; (2) no proof that DOE was advised of suspected areas of disability to be assessed; (3) private school had no non-disabled students; public school thus offered least restrictive environment through recess, lunch, and the like.

 

ON APPEAL:  Nalu Y. v. DOE, D. Haw. Civ. No. 11-67 BMK –  reversed in part and remanded, Doc. # 26 (3/9/12):  hearings officer improperly disregarded testimony of parent and private school teacher.

 

DOE-SY1011-037R

Stanley E. Levin

Toby Tanaki

Richard A. Young

7/25/2012

(Remand)

1.      Parental participation in IEP process

 

OUTCOME:  For Student

 

REASONING:  Private placement ordered at DOE’s expense.  The DOE’s failure to adequately address or investigate parental concerns regarding Student’s fear of the home school is a denial of FAPE as it denied Parents meaningful participation in the IEP process and caused a deprivation of educational benefits to Student.

 

DOE-SY1011-036

Jerel D. Fonseca

Gary K.H. Kam

Lono P.V. Beamer

1/21/2011

1.     Evaluation of central auditory processing disorder;

2.     Least restrictive environment

 

OUTCOME:  For DOE.

 

REASONING:  (1)  Student passed auditory hearing tests and further assessment was not needed for central auditory processing disorder; evidence of submucuous cleft palate not brought to the attention of the IEP team could not be considered; (2) lack of audiologist at IEP meeting was not raised as an issue in request for due process and cannot be considered; (3) Student did not prove denial of FAPE.

 

ON APPEAL:  D.R. v. DOE, D. Haw., Civ. No. 11-116 ACK-KSC.  (Matthew C. Bassett counsel for appellant). – affirmed 10/21/11, Doc. # 27:  (1) no evidence that hearings officer was biased; deputy attorney general who represents DOE is not disqualified from being IDEA hearings officer; (2) decision was thorough and careful, and will be given substantial deference; (3) parent could not complain that DOE failed to evaluate student for speech disorder where information about cleft palate was not shared with IEP team; (4) DOE screening tests for CAPD were sufficient and no further evaluation was needed.

 

DOE-SY1011-035

Keith H.S. Peck

Jerrold G.H. Yashiro

Craig H. Uyehara

3/10/11

1.  Adequacy of PLEPS

2.  Attendance of private school teacher at IEP meeting

3.  Whether private school was proper placement.

OUTCOME: For DOE.

REASONING: (1) Evidence did not prove that WIAT test was administered improperly; (2) Failure to invite private school teacher to IEP did not deny FAPE because private school had a policy of not attending IEPs and DOE had acquired sufficient information about student’s needs and abilities via testing of student; (3) evidence failed to show student progress at private school.

 

ON APPEAL: D.S-S. v. DOE, D. Haw., Civ. No. 11-239 BMK –

Affirmed, Doc. # 31, 4/30/2012.

.

DOE-SY1011-031

Keith H.S. Peck

Gary K.H. Kam

Rodney A. Maile

11/11/2010

1.     Parent’s participation in IEP meeting;

2.     Participation of private school teachers in IEP meeting.

 

OUTCOME:  For DOE.

 

REASONING:  Principal specifically asked for, and received, permission from parent to complete the IEP after parent left the IEP meeting.  34 C.F.R. § 300.321(e) does not require that a parent be present for the entire meeting, nor does it require written consent to finalize IEP after parent leaves.

 

ON APPEAL:  L.I. v. DOE, D. Haw. Civ. No. 10-731 SOM-BMK -- Affirmed, Doc. # 28, 11/30/2011, 2011 WL 6002623.  Stay put not granted because issue was not briefed on appeal; motion may be made, however, on proper authority.

 

DOE-SY1011-029

Keith H.S. Peck

Berton T. Kato

Haunani H. Alm

2/7/2011

1.     Transition planning from private to public school;

2.     Qualifications of paraprofessional aides;

3.     Private school teacher’s participation in IEP meetings.

 

OUTCOME:  For DOE.

 

REASONING:  (1)  Parent did not respond to principal’s offer to convene an IEP meeting to discuss transition needs; (2) parent did not raise staff qualifications at IEP meeting; (3) DOE invited private school director to IEP meeting, but parent did not explain absence.

 

ON APPEAL:  D.S. v. DOE, D. Haw. Civ. No. 11-161 LEK-KSC – Affirmed, Doc. # 25, 12/27/2011 (Monica Morris for DOE).

 

DOE-SY1011-028

Susan Dorsey

Gary K.H. Kam

Richard A. Young

12/15/2010

1.      Suspension of student;

2.      Adequacy of behavior support plan;

3.      Manifestation hearing and length of suspension;

4.      Provision of FAPE.

 

OUTCOME:  For DOE.

 

REASONING:  (1) DOE adequately addressed student’s behavioral problems (including criminal conduct and threats against teachers and other students) through “chunking,” breaks, and counseling; (2) there was no proof that the manifestation team erroneously concluded that “setting off a device” that damaged the school bathroom and injured three students was a planned activity not caused by student’s disability; (3) one-year suspension was lawful because student’s conduct was not caused by his disability.

 

ON APPEAL:  Danny K. v. DOE, D. Haw. Civ. No. 11-25 ACK-KSC – Affirmed, Doc. # 29 (9/27/2011).

   

DOE-SY1011-024

Stanley E. Levin

Jerrold G.H. Yashiro

Richard A. Young

7/5/2011

1.     Failure to evaluate student before transition from private to public school;

2.     Placement pre-determined by DOE;

3.     Public school is not restrictive enough;

4.     Goals of independent living and competitive employment are inappropriate for low-functioning student with autism;

5.     Transition planning inadequate because DVR did not participate in IEP meetings

 

OUTCOME:  For DOE.

 

REASONING:  (1)  There is no requirement to evaluate a student before changing placement; (2) placement decision was based on student’s needs and was not pre-determined; (3) non-verbal student who is severely disabled with autism would benefit by learning body language and social cues from exposure to non-disabled peers on a 1,200 student public school campus, according to the DOE’s autism consulting teacher, an “expert in autism”; (4)  Although student is unlikely to live independently, it is not inappropriate to strive for that goal; (5) DOE rules do not require that a DVR representative attend IEP meetings, and listing transition services in IEP without discussing them at the IEP meeting is sufficient.

 

ON APPEAL:  Carrie I. v. DOE, D. Haw. Civ. No. 11-464 JMS-RLP – reversed, Doc. # 27 (5/31/2012), 2012 WL 2353850:  (1) while a change of placement from private to public school requires the DOE to evaluate the student’s needs under Section 504 of the Rehabilitation Act of 1973, there is no such requirement under the IDEA ; (2) due process request did not raise an issue of DOE’s failure to conduct a triennial evaluation; (3) the location of services does not have to be specified in the IEP, but the type of placement must be – i.e., home schooling, regular class, special education class, special education school; (4) DOE denied FAPE by failing to consider, at the IEP meeting (not the due process hearing),  the harmful effects of a transition from Loveland Academy (a mental health treatment facility for 38 students)  to Aiea High School (a public school with 1,200 students); (5) IEP denied FAPE by failing to include provisions for transition to post-secondary vocational programs and by failing to invite DVR representative to IEP meeting; (6) private placement at Loveland is appropriate.

 

DOE-SY1011-020

Keith H.S. Peck

Steve K. Miyasaka

Lono P.V. Beamer

1/24/2011

1.     Adequacy of IEP (transition services);

2.     Right of parent and private school to participate in IEP meeting;

3.     Reimbursement of private placement.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Parent had ample opportunity to participate in IEP despite absence of translator for half of the 2-hour meeting; (2) Although IEP denied FAPE because of lack of transition planning, parent failed to prove that unilateral private placement was appropriate; (3) private school did not allow access to student by DOE and concentrated on functional communication skills rather than social interaction and generalization.

 

ON APPEAL:  M.N. v. DOE, D. Haw. Civ. No. 11-121 SOM-BMK, Doc. # 31, 12/1/2011 – affirmed.  (1) Plaintiff failed to show that Pacific Autism Center provided program meeting student’s needs because student failed to make progress in a majority of areas covered by his IEP.  Therefore, even though DOE had denied FAPE, reimbursement of tuition was denied; (2) even though DOE did not dispute denial of FAPE, court questioned the finding because IDEA does not require a transition plan from private to public school; (3) reimbursement of tuition would have been denied in any event because school and parent were uncooperative in providing data to the DOE and in scheduling IEP meetings.

 

FURTHER APPEAL:  Misako Nakamura ex rel. A.B. v. DOE, 9th Cir. No. 11-18037 (Timothy A. Adams, Santa Ana, CA for appellant) – affirmed 2/19/2013.

 

DOE-SY1011-015 &

DOE-SY0910-124

 (Consolidated)

Jerel D. Fonseca

Steve K. Miyasaka

Richard A. Young

11/18/2010

 

 

1. Failure to update IEP;

2. private school placement;

3. compensatory education.

 

OUTCOME: For Student. DOE ordered to reimburse cost of private school for two school years plus a third year as compensatory education.

 

REASONING: (1) problem behaviors have been reduced at private school and it is therefore a proper placement; (2) ILC placement (small self-contained room on public school campus) was not appropriate for ADHD student who needed socialization opportunities; (3) compensatory education of one year at Mental health day treatment facility (private school) awarded because of DOE’s failure to update IEP from August 2008 to February 2010.

 

ON APPEAL:  DOE v. M.F., D. Haw. Civ. No. 11-47 JMS-BMK – affirmed in part and remanded, Doc. #53 (12/29/11):  hearings officer is to decide whether Loveland’s speech services are severable from other services for purposes of reimbursing costs.  Judgment for Plaintiff is vacated on grounds that remand order is not appealable.

 

DOE-SY1011-015R &

DOE-SY0910-124R

 (Consolidated)

Jerel D. Fonseca

Toby Tonaki

Richard A. Young

3/20/2013

(Remand)

1.      Severability of Loveland’s speech-language services

2.      Compensatory education

 

OUTCOME:  For Student

 

REASONING:  (1) OT and speech-language services were not necessary parts of student’s program and cost, therefore, need not be reimbursed; (2) compensatory education for the entire school year is granted because terminating an award when the school year has not been completed would be disruptive for any child.

 

DOE-SY1011-014

Keith H.S. Peck

Jerrold G. Yashiro

Rodney A. Maile

11/10/2010

1.     Participation of private school teachers in IEP meeting;

2.     ESY services;

3.     Whether the IEP provided appropriate special education services.

 

OUTCOME:  For DOE.

 

REASONING:  Student did not prove by a preponderance of the evidence that the IEP was inadequate.

 

ON APPEAL:  G.A. v. DOE, D. Haw. Civ. No. 10-730 LEK-BMK – affirmed (Aug. 31, 2011):  (1) Hearings Officer’s decision was thorough and careful; (2) IDEA does not require that private placement teacher attend IEP meetings; in any event, the evidence showed the teacher was invited to the meeting and the IEP team had adequate information about the private school’s program; (3) DOE paid for tutoring during ESY.

 

 

 

 

 

 

DOE-SY0910-144

Roy Benavidez

Kris Murakami

Lono P.V. Beamer

10/26/2010

1. Right to FAPE after age 20.

 

OUTCOME: DOE’s motion to dismiss granted.

 

REASONING: Student is not eligible to attend public high school after age 20 because of Act 163, SLH 2010; (2) hearings officer has no jurisdiction to determine the validity of Act 163.

 

ON APPEAL: R.T.D. v. DOE, D. Haw. Civ. No. 10-641 LEK – Affirmed, Doc. # 38, 4/30/2012 (Jennifer Patricio for appellant) – Court agrees with decision in R.P.-K. ex rel. C.K. v. Dep’t of Educ., Haw., Civ. No. 10-00436 DAE-KSC, 2012 WL 1082250, at *8 (D. Hawai`i Mar. 30, 2012).

 

FURTHER APPEAL:  9th Cir. No. 12-16191 – Reversed 8/28/13 per E.R.K. v. DOE, 728 F.3d 982:  students with disabilities are eligible to receive a FAPE until age 22 because the State offers a free public education in the GED and CBASE adult programs to students in that age range.

 

DOE-SY0910-143

Roy Benavidez

Berton Kato

Richard A. Young

10/25/2010

1. Right to FAPE after age 20.

 

OUTCOME: DOE’s motion to dismiss granted.

 

REASONING: (1) Act 163, SLH 2010 reduced age eligibility for admission to high school to 20 years of age; (2) GED and CB high school equivalency programs are open to all students and thus do not discriminate against students with disabilities; (3) DOE is not estopped from denying FAPE to students with disabilities after age 20 because the State may reduce age eligibility under IDEA; (4) hearings officer lacks subject matter jurisdiction over  PWNs that did not address parent’s request for FAPE after age 20.

 

ON APPEAL: R.P.-K. v. DOE, D. Haw. Civ. No. 10-644 LEK- KSC – Reversed and remanded, Doc. #32, 8/1/2011 (John P. Dellera for appellant):  (1) Hearings Officer should have  considered whether request for FAPE after age 20 was denied   (and whether parent’s right to participate in the IEP process was impaired) when IEP team failed to address it; (2) hearings officer should have considered whether DOE is estopped from denying FAPE after age 20; (3) Court construes age-out issues as claim that Act 163, SLH 2010, is invalid and finds that issue was not raised in the due process request and was not, therefore, within the hearings officer’s jurisdiction.

 

DOE-SY0910-123

 

Stanley E. Levin

Gary K.H. Kam

Craig H. Uyehara

5/28/2010

1. Procedural violation of IDEA (timely resolution session;

timely due process hearing).

 

OUTCOME: For Student. Parent reimbursed for private school placement.

 

REASONING: DOE’s delay of three months to transmit a due process request to the Office of Administrative Hearings failed to provide a timely due process hearing and constituted a per se violation of IDEA.

 

ON APPEAL: DOE v. T.G., 2011 WL 816808 (D. Haw.,

2/28/11), Civ. No. 10-362 LEK-RLP:  affirmed in part, reversed and remanded in part.  (1) “where an educational agency has outright denied a student a timely due process hearing, the student has been deprived of a FAPE and need not show prejudice in order to demonstrate injury”; (2) Hearings Officer’s decision was not thorough and careful as to whether the private school was a proper placement because it did not consider whether extra services purchased by parent were needed to make the education appropriate.

 

DOE-SY0910-123R

Stanley E. Levin

Gary K.H. Kam

Craig H. Uyehara

5/26/2011

(Remand)

1.      Appropriateness of private placement

 

OUTCOME:  For student.

 

REASONING:  Private school, together with related services, addressed some of student’s unique needs, and student made progress. Private placement was, therefore, proper.

 

DOE-SY0910-106

Keith H.S. Peck

Berton T. Kato

Craig H. Uyehara

4/1/2011

1. Skills trainer services

2. Multiple denials of FAPE

3. Furlough Fridays

 

OUTCOME: For DOE.

 

REASONING: (1) Student was not deprived of FAPE because skills trainer helped another child who became ill on a field trip; (2) evidence did not show denial of FAPE; (3) there was no evidence that furlough Fridays resulted in a material loss of educational benefits for student.

 

ON APPEAL: M.D. v. DOE, D. Haw. Civ. No. 11-289 ACK-RLP

– Affirmed, Doc. # 23, 3/29/2012:  hearings officer’s decision is detailed and legal conclusions are explained with citations to record.  It is therefore entitled to deference, and court will not second guess officer’s characterization and weighing of the evidence.

 

DOE-SY0910-104

Irene E. Vasey

Berton T. Kato

Lono P.V. Beamer

11/12/2010

1.     Evaluation of student;

2.     Adequacy of IEP;

3.     Issues not raised in due process request;

4.     Parent’s right to participate in IEP process.

 

OUTCOME:  For DOE.

 

REASONING:  (1) IEP Team was given no reason to believe that student should be evaluated for additional disabilities; IEP adequately addressed student’s needs; claims accruing more than 2 years before due process request are time-barred; (2) issues not raised in due process request (ESY, transition planning) will not be considered; (3) difference of opinion between parent and rest of IEP team does not show that parent was denied full participation in the IEP process.

 

ON APPEAL:  Hailey M. v. Matayoshi, D. Haw. Civ. No. 10-733 LEK-BMK – affirmed (Sep. 7, 2011).

 

DOE-SY0910-102

Keith H.S. Peck

Berton T. Kato

Richard A. Young

4/28/2011

1.     No transition plan for move to public school;

2.     PLEPs, goals, and behavior support plan not updated;

3.     Improper request for waiver of IDEA claims

 

OUTCOME:  For DOE.

 

REASONING:  (1)  Transition plan provided for gradual increase in public schooling; assuming it was necessary, it was adequate; (2) parents cannot complain about outdated IEP because information needed from private school was not provided; (3) proposed compromise settlement agreement did not improperly require parent to waive IDEA rights.

 

ON APPEAL:  Scot S. for Scot S., Jr. v. DOE, D. Haw. Civ. No. 11-347 ACK-RLP –  affirmed, Doc. # 33-1 (2/27/2012):  (1) DOE’s failure to update IEP was caused by parents’ failure to provide information from Pacific Autism Center pursuant to a settlement agreement; court questions decision in Anchorage School District v. M.P., 9th Cir. No. 10-36065, 2011 WL 5149140, at *1 (11/1/2011) that “[n]either the IDEA nor its implementing regulations qualifies any duty imposed on a state or local educational agency as contingent upon parental cooperation”; (2) transition plan was adequate as it provided for a transition to [public school] over a period of three weeks, gradually increasing the amount of time Student spent at [the public school] and the time Student spent with other students.

 

DOE-SY0910-087R

Matthew C. Bassett

Carter K. Siu

Richard A. Young

6/1/2012

(Remand)

1.      Placement in public or private school

 

OUTCOME:  For DOE

 

REASONING:  (1) Although public school lacks sufficient staff to meet student’s needs, Parent did not show that DOE could not implement OT, ESY, and speech therapy services at the student’s home school through contracts with outside agencies; (2) DOE’s offer of placement “in the public high school in his home community” was adequate notice that placement would be at the home school.

 

ON APPEAL:  Marcus I. v. DOE, D. Haw. 10-381 & 12-342  SOM-BMK (consol) –affirmed, Doc. 101 (6/12/2013).

 

FURTHER APPEAL:  Marcus I. v. DOE, 9th Cir. No. 13-16434 – affirmed in part, reversed and remanded in part, 7/23/14:  affirmed in all respects except that DOE is liable for paying the cost of student’s residence on Oahu when stay put was in effect from November 2007 through pendency of these proceedings.  Case remanded to hearings officer for determination of amount to be reimbursed.

 

DOE-SY0910-087

Matthew C. Bassett

Jerrold G.H. Yashiro

Richard A. Young

6/9/2010

 

 

1. Whether the DOE discriminated against Petitioners by repeatedly changing placement offers, thereby triggering continual litigation over the issue;

2. Identification of home school placement.

 

OUTCOME: For DOE.

 

REASONING: (1) DOE did not discriminate by offering frequent placement changes because student’s circumstances had changed; (2) IEP did not have to specify the location of home school services, only the level.

 

ON APPEAL: Marcus I. v. DOE, D. Haw. Civ. No. 10-381 SOM- BMK, Doc. # 34, 5/9/11, 2011 WL 1833207, vacated in part and remanded: court believes there may be additional facts that might show whether student’s IEP could be implemented in public school and whether the placement offered by the DOE was adequately identified. Therefore, the case is remanded for a further administrative hearing because that would be “more efficient” than holding an evidentiary hearing in court and deciding the case on appeal.

 

FURTHER APPEAL:  Marcus I. v. DOE, 9th Cir. No. 11-16439 – dismissed for lack of jurisdiction (case on remand), 9/13/11.

 

Doc. # 68, 4/12/2012 – Order granting stay put at Loveland Academy based upon Marcus I. v. DOE, 9th Cir. No. 09-17606, 5/23/11, 2011 WL 1979502 (dismissing as moot appeal from D. Haw. Civ. No. 08-491 DAE (10/21/2009), aff’g DOE-SY0708-054 (Haunani H. Alm, 10/3/2008).

 

FURTHER APPEAL:  DOE v. Marcus I., 9th Cir. No. 12-16149 (Carter Siu for DOE) – affirmed, 1/28/2013, 506 F. App’x. 613.

 

DOE-SY0910-070R

Carl M. Varady

Kris Murakami

David H. Karlen

2/4/2014

(Remand)

 

1.      Implementation of IEP.

 

OUTCOME:  For DOE

 

REASONING:  Even though the DOE denied a FAPE by failing to implement the IEP, compensatory education is denied because student did not appeal from the decision of 4/3/2010 that denied compensatory education.

 

DOE-SY0910-070

Carl M. Varady

Christine M. Denton

Haunani H. Alm

4/3/2010

1. Whether Respondent unilaterally changed Student’s educational program and placement by proposing and implementing a program other than the IEP on furlough days and thereby denied him a FAPE.

OUTCOME: For Student.

REASONING: Respondent unilaterally changed Student’s

educational program and Student was procedurally and

substantively denied a FAPE.

 

ON APPEAL:  DOE v. C.J., D. Haw. Civ. No. 10-257 AWT-BMK -- Reversed and remanded, Doc. 53, 11/29/2011:  Hearings officer is to consider application of Van Duyn ex rel. Van Duyn v. Baker School District 5J, 502 F.3d 811 (9th Cir. 2007) (whether change was material).

 

DOE-SY0910-069R

Susan Dorsey

Kris Murakami

Richard A. Young

7/11/2012

(Remand)

1.      Furlough days as denial of FAPE

 

OUTCOME:  For DOE

 

REASONING:   (1) Student’s behavior deteriorated after furlough Fridays were implemented, but teachers said no changes were observed in the school environment.  Therefore, the loss of Fridays was not more than a minor discrepancy between services promised and delivered; (2) furlough adjustment plan offered one extra hour of school Monday through Thursday plus two hours on Sunday; student made educational progress despite lack of services, and shortfall was not, therefore, material.

 

ON APPEAL:  Alex U. v. DOE, D. Haw. Civ. No. 12-458 DKW-RLP – Affirmed, Doc. 28, 11/22/2013:  Behavioral problems were likely caused by several factors, including changes in skills trainer, medication, and puberty.  The DOE did not materially fail to implement the IEP.

 

DOE-SY0910-069

 

 

 

Susan Dorsey

Kris Murakami

Richard A. Young

1/6/2011

 

 

1.     Furlough Fridays.

 

OUTCOME:  For Student.

 

REASONING:  Student needed a consistent environment; DOE’s implementation of furlough Fridays was a unilateral change in and failure to implement the IEP that denied FAPE.

 

ON APPEAL:  DOE v. A.U., D. Haw. Civ. No. 11-85 BMK – reversed and remanded, Doc. # 30 (11/22/11):  (1) Friday furloughs are not a unilateral change in placement under N.D. v. DOE, 600 F.3d 1104, 1117 (9th Cir. 2010); (2) case is remanded to determine whether DOE’s furlough adjustment plan materially failed to implement student’s IEP.

 

DOE-SY0910-067

 

 

 

Stanley E. Levin

Jerrold G.H. Yashiro

Richard A. Young

4/20/2010

 

 

1. Whether Student with speech impairments was denied a

FAPE because the implementation of furlough Fridays was a unilateral change in the IEP.

 

OUTCOME: For Student.

 

REASONING: Petitioners have shown that the DOE’s implementation of the furlough Friday plan is a unilateral

modification of Student’s July 30, 2009 IEP, a fundamental change in Student’s program and a denial of FAPE.

 

ON APPEAL:  DOE v. N.D., D. Haw. Civ. No. 10-297 AWT-BMK – Reversed and remanded, Doc. #46 (12/16/2011):  (1) furloughs one day a week were  not a unilateral change of student’s program; (2) hearings officer failed to conduct Van Duyn inquiry to determine whether there was more than a minor discrepancy between DOE’s services and specific IEP requirements; case is remanded for that purpose.

 

DOE-SY0910

067R

Stanley E. Levin

Jerrold G.H. Yashiro

Richard A. Young

7/11/2012

(Remand)

1.      Van Duyn inquiry – materiality of denial of IEP services

 

OUTCOME:  For DOE

 

REASONING:  Testimony by teachers shows that loss of one day of school per week did not affect student’s educational progress; deterioration of behavior at home did not affect educational performance.  It cannot be determined that there was more than a minor discrepancy between services promised and delivered because student made educational progress.

 

ON APPEAL:  Noah D. v. DOE, D. Haw. Civ. No. 12-459 DKW-RLP – Reversed and remanded, Doc. 34 (8/20/2013): (1) DOE failed to implement student’s IEP because loss of one furlough day per week was more than a minor discrepancy between services provided and services required by the IEP; (2) failure to implement IEP was material in view of student’s autism, his need for continuity and stability in his educational program, and an increase in behavioral regression at home; (3) case is remanded to determine compensatory education.

 

DOE-SY0910-054

Keith H.S. Peck

Christine M. Denton

Richard A. Young

2/24/2010

1. Whether a valid IEP was provided to ADHD Student prior to the beginning of the school year.

 

OUTCOME: DOE is the prevailing party.

 

REASONING: Petitioners did not show that the DOE failed to provide Student with a timely IEP. The development of the IEP was delayed due to Petitioners’ obstructions and delays, including failure to return telephone messages, failure to follow through with scheduling, late notice of meeting cancellation,

pre-determination of private placement, and lack of cooperation.

 

ON APPEAL: A.R. v. DOE, 2011 WL 1230403 (D. Haw. Civ. No. 10-174 SOM-RLP, Mar. 31, 2011 – affirmed. (1) Hearings Officer’s decision placing student at Horizons Academy in earlier case constituted a placement agreement by the DOE for “stay put” purposes in subsequent due process proceeding; (2) courts have broad discretion to fashion relief in IDEA cases, including orders to pay private school tuition under stay put clause; (3) court would not enforce stay put rule where the sole issue on appeal was the DOE’s late offer of an IEP two weeks after the beginning of the school year; court found that parent’s actions obstructed and delayed the IEP process and thus caused the procedural defect.

 

FURTHER APPEAL: 9th Cir. No. 11-16118 (Matthew C. Bassett for appellant) – withdrawn by stipulation.

 

DOE-SY0910-022

Jennifer Patricio

Joanna B.K.F. Yeh

Richard A. Young

5/6/2010

1. Right to FAPE after age 20

 

OUTCOME: Decision for DOE

 

REASONING: Autistic student was not denied FAPE solely because he was over 20 years of age. The denial was also based on the preponderance of the evidence showing that student had “plateaued” and would never acquire skills needed to find a job in the competitive marketplace.

 

ON APPEAL: C.B. v. DOE, D. Haw., Div. No. 10-317 DAE-LEK, Doc. # 39, Dec. 22, 2010, 2010 WL 5389785 (Alston Hunt Floyd & Ing co-counsel) – Affirmed. Student was not entitled to FAPE because he had “achieved [his] goal [to be employed] when he became a member of the non-competitive workforce.”

 

FURTHER APPEAL:  9th Cir. No. 11-15204 – dismissed as moot, 7/11/2011.

 

DOE-SY0910-017

Jerel D. Fonseca

Gary K.H. Kam

Rodney A. Maile

12/28/2009

1. Denial of FAPE because IEP failed to address safety issues or provide needed speech therapy.

2. Private school placement.

 

OUTCOME: Decision for Respondent.

 

REASONING: Although FAPE was denied, private school withheld information requested by DOE for purpose of preparing IEP because of a dispute over unpaid tuition. It would be inequitable to find that FAPE was denied and private placement was justified under the circumstances.

 

ON APPEAL: D.S. v. DOE, D. Haw. Civ. No. 10-53 BMK, Apr.

1, 2011. HDRC (Matthew C. Bassett) co-counsel on appeal.

Decision affirmed in part and reversed and remanded: (1) Hearings Officer’s decision is entitled to little deference because nearly all his conclusions are cursory and fail to cite evidence in the record; (2) Hearings Officer correctly decided that IDEA does not require the DOE to provide a transition plan for student’s transfer from private to public school; (3) IEP offered by DOE did not comply with IDEA because it failed to measure present levels of performance, and goals, therefore, did not reflect child’s current needs; (4) reimbursement of private school’s tuition is reduced by 30% because parent failed to cooperate with DOE in obtaining current information about student’s progress at private school. DOE was held partially to blame by not trying to resolve dispute over payments it was withholding from private school or assessing student’s needs by means other than monitoring private school and reviewing its records.  Case remanded to determine amount due.

 

Motion for stay put granted until remand and any appeals are concluded.  Doc. #43 (7/31/2012).

 

DOE-SY0910-014

Jerel D. Fonseca

Joanna B.F.K. Yeh

Haunani H. Alm

9/3/2010

1. Whether the IEP offered Student a FAPE.

 

OUTCOME: Respondent is the prevailing party.

 

REASONING: By a preponderance of the evidence, Respondent provided Student with an intensive program, primarily consisting of ABA strategies that met Student’s unique needs and was reasonably calculated to allow Student to receive educational benefit.

 

ON APPEAL:  Aaron P. v. DOE, D. Haw. Civ. No. 10-574 LEK-KSC – Affirmed in part, remanded in part: additional IEPs and PWNs were challenged in the due process request but not decided by the hearings officer.  Doc. #53 (10/31/11) (Magali Sunderland for parent, Michelle Pu`u for DOE).

 

FURTHER APPEAL:  9th Cir. No. 11-17861 – dismissed for lack of jurisdiction, 11/14/2012.

 

 

 

 

 

 

DOE-SY0809-068

Keith H.S. Peck

Steve K. Miyasaka

Haunani H. Alm

6/22/2009

1.     ESY services

2.     Adequacy of services in IEP

3.     Identification of placements

4.     Assessment of behavioral needs

 

OUTCOME:  For DOE.

 

REASONING:  Petitioners did not prove any of their claims by a preponderance of the evidence.  Placement location need not be specified in the IEP as parents were informed of the physical location one week after the IEP meeting.

 

ON APPEAL:  N.S. v. DOE, D. Haw. Civ. No. 09-343 SOM-KSC – affirmed 6/9/2010, 2010 WL 2348664.

 

DOE-SY0809-054

Matthew C. Bassett

Kris S. Murakami

Richard A. Young

4/20/2009

1.      504 accommodations for student with ADHD and CAPD;

2.      Grade inflation, evaluation for all suspected disabilities.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Preferential seating was sufficient 504 accommodation for student who performed at low-average level and whose reading skills were three grades below age; DOE had no reason to assess emotional problems; (2) eligibility for remedial education classes does not establish eligibility for special education and related services.

 

ON APPEAL:  C.M. v. DOE, D. Haw. Civ. No. 09-205 SPK-KSC (4/29/2010) – affirmed.

 

FURTHER APPEAL:  9TH Cir. No. 10-16240 (3/1/2012) – affirmed.

 

DOE-SY0809-029

Matthew C. Bassett

Berton T. Kato

Richard A. Young

4/3/2009

1.      Unilateral private school placement;

2.     Least restrictive environment

3.     Statute of limitations on reimbursement of tuition;

4.     Parent’s participation at IEP meetings;

5.     Stay put.

 

OUTCOME:  For DOE.

 

REASONING:  (1) Bilateral private school placement becomes unilateral when the student remains in place without DOE consent after the bilateral period has ended; (2) participation with general education peers for lunch, recess, and school-wide assemblies is sufficient to make fully self-contained special education classroom the least restrictive environment; (3) claim for tuition reimbursement must be made within 90 days of date bilateral placement becomes unilateral; (4) parent chose not to attend IEP meetings.

 

ON APPEAL:  K.D. v. DOE, D. Haw., Civ. No. 09-197 HG, Doc. # 32, 1/29/2010 – affirmed.  (1) Parent had ample opportunity to participate in the IEP process but chose not to; (2) public school placement was appropriate; (3) claim for tuition reimbursement had to be filed within 90 days of date student remained in private school after period of bilateral agreement ended; (4) stay put does not apply where no timely request for due process hearing was filed.

 

FURTHER APPEAL:  9th Cir. No. 09-15454, 12/27/2011, 665 F.3d 1110 – affirmed.  (1) DOE’s agreement to pay private school tuition for specific school year was not a placement agreement for purposes of stay put; (2) District court affirmed in all respects.  Rehearing en banc denied, 2/1/2012.

 

DOE-SY0809-001

DOE-SY0708-083

(consolidated)

 

 

 

 

John P. Dellera, Matthew C. Bassett

Steve K. Miyasaka

Rodney A. Maile

1/14/2009

 

 

 

 

 

1.      Student’s right to FAPE until age 22;

2.      Whether adult foster home was proper residential component of IEP;

3.      Compensatory education because of DOE’s failure to update 2005 IEP and refusal to implement 2007 IEP for 8 months.

 

OUTCOME:  For DOE on issues 1 and 3; For Student on issue 2.

 

REASONING:  (1) Student is not entitled to FAPE after age 20 under DOE’s administrative rules; (2) an adult foster home lacks necessary services and is not an appropriate residential component of IEP; (3) compensatory education should be left to court in pending action.

 

ON APPEAL:  B.T. v. DOE, 676 F. Supp.2d 982 (D. Haw. 2009, Civ. No. 08-356 DAE-BMK, 7/9/09) – issue 1 reversed (student has right to FAPE to age 22 if he would benefit); issue 3 reversed and remanded (hearings officer must decide issue in first instance).

 

DOE-SY0809-001-R

 

Matthew C. Bassett

Steve K. Miyasaka

Rodney A. Maile

7/22/2010

(First remand)

(unpublished)

 

1.      Compensatory Education

 

OUTCOME:  For DOE

 

REASONING:: For DOE (7/12/10) – (1) compensatory education denied because Student’s current needs result from a medical condition, not past denial of FAPE; (2) failure to update 2005 IEP not considered because it was not raised in the due process complaint; (3) refusal to implement 2007 IEP was justified because parent had challenged placement in DOE-SY0708-083.

 

ON APPEAL:  B.T. v. DOE, D. Haw. Civ. No. 10-456 SOM-RLP, Doc. # 37, 5/11/11, 2011 WL 1833206, 111 LRP 33910 (John P. Dellera for Student) – reversed in part and remanded – (1) failure to update 2005 IEP issue is time barred; (2) DOE’s refusal to implement 2007 IEP unjustified; case is again remanded to determine whether student was denied FAPE and whether compensatory education should be awarded; (3) first remand order that Loveland tuition be paid until compensatory education issue is finally decided does not apply to period after Student became 22 years old.  Recon denied 8/1/11, 2011 WL 3290593.

 

DOE-SY0809-001-R2

Matthew C. Bassett

Carter K. Siu

David H. Karlen

10/30/2012

(Second remand)

1.      Compensatory Education

 

OUTCOME:  For Student

 

REASONING: (1) Student was denied a FAPE by DOE’s failure to implement changes in November 2007 IEP until June 2008; (2) student is entitled to six months of compensatory education in a form to be determined; (3) compensatory education award cannot reimburse past tuition at private school because the award must be prospective and take into account student’s current needs. 

 

ON APPEAL:  B.T. v. DOE, D. Haw. Civ. No. 12-642 SOM-RLP (Toby Tonaki for DOE) – settled 9/5/2013.