Legal Corner (but not for lawyers only)

Following are links to documents that we hope will assist parents, advocates, and special education lawyers in researching issues that have arisen in special education cases:

DECISIONS ISSUED BY HAWAII HEARINGS OFFICERS UNDER IDEA - This is a summary of due process cases decided by Hawaii hearings officers with the outcome of appeals to federal or state courts. We intend to update the document monthly.

IDEA DECISIONS APPENDIX - The first document lists cases on appeal from Hearings Officer decisions with the result. The second is a statistical summary of cases won or lost by the student'€™s attorney and the percentage of cases in which each hearings officer has ruled for the student or the DOE.

VOCATIONAL REHABILITATION SERVICES - This document summarizes vocational rehabilitation services that the State is required to provide under the Rehabilitation Act of 1973. DVR counselors should be invited to IEP meetings where students age 16 and over are entitled to transition or vocational services.

Case Notes
©John P. Dellera

FAPE TO AGE 22

The U.S. Court of Appeals for the Ninth Circuit decided two cases in August 2013 that extend age eligibility for Hawaii special education students from age 20 to 22. In E.R.K. v. Department of Education, No. 12-16063 (Aug. 28, 2013), the court found that the IDEA requires the State to provide a FAPE to disabled students until they become 22. In a related case, A.D. v. Department of Education, No. 12-17610 (Aug. 14, 2013), the court ruled that IDEA'€™s stay put provision requires the DOE to continue services at the student'€™s current educational placement until litigation over eligibility for services is finally resolved. The court said stay put applies automatically when a due process request is filed and stays in place until the proceeding is completed and any appeals have been resolved. Stay put does not depend on the strength of the student'€™s claim, and the student is not required to show a likelihood of success on the merits or the possibility of harm in the absence of stay put.

Practice Note: What can parents and students do to enforce their right to a FAPE? For students over 18, the parent must be appointed guardian, educational representative, or have a power of attorney from the student.

o 16-22 years of age - ask the IEP team to include vocational education and transition services to age 22 in IEPs;
o 20-22 - call the home school and tell them the student wants to return to their prior placement (public or private school) until age 22. You may also request compensatory education (additional services) to recover time lost and to recoup any regression. Write a letter confirming your request;
o 22-24 - the student may have a right to compensatory education, which could be more time in school or payment for vocational training and even adult day program services. A due process request should be filed within two years of the last day FAPE was denied.

DAMAGES FOR "DELIBERATE INDIFFERENCE" - FAILURE TO PROVIDE AUTISM-SPECIFIC SERVICES
The Hawaii Department of Education agreed to pay $4.4 million in damages under the Rehabilitation Act of 1973 for its "deliberate indifference" in failing to meet the needs of two children with autism during the 1990's. See Honolulu Star-Advertiser, Aug. 29, 2012. The settlement follows the Ninth Circuit's decision in Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010). Other children who were denied services like ABA therapy may also have damage claims against the DOE. A claim must be filed in court within two years after it accrues, but the 2-year period does not begin to run until the child becomes 18 or, for those who are mentally incompetent, when a guardian is appointed, whichever comes later. See Buck v. Miles, 89 Hawaii 244, 251, 971 P.2d 717, 724 (1999).

ACT 129 PREEMPTED - DOE MAY NOT WITHHOLD PRIVATE SCHOOL TUITION IN DISPUTES OVER MONITORING
In 2011, the Hawaii Legislature amended State law ("Act 129") to allow the Department of Education ("DOE") to monitor private schools where a student was placed at the DOE's expense by a hearings officer, court, or by agreement with the DOE. HRS § 302A-443(f). The law further requires private schools that receive funding from the DOE (other than schools that are members of the Hawaii Association of Independent Schools) to allow the DOE to monitor students with disabilities to ensure that services comply with their IEP and that their program conforms to State education standards. If the school does not comply, the DOE is required to withhold payment of tuition. HRS § 302A-443(i).

On June 22, 2012, the U.S. District Court issued a preliminary injunction prohibiting the DOE from withholding tuition, finding that Act 129 is preempted by the Individuals With Disabilities Education Act. F.K. v. Department of Education v. Loveland Academy, D. Haw. Civ. No. 12-136 ACK-RLP (Doc. #33). Other provisions of Act 129 should also be preempted in unilateral parental placement cases, including the requirement to have an IEP, the applicability of State standards, and the authority of the DOE to monitor. Those requirements "do not make sense" in parental placements as they would undermine the parent's right to unilaterally withdraw the child from a public school that denies a FAPE and to enroll them in private schools at public expense. Florence Co. School District v. Carter, 510 U.S. 7, 10 (1993). Those issues may be addressed in further proceedings in the case.

PRIVATE SCHOOL PLACEMENTS - STAY PUT
In a decision dated 12/27/2011 in K.D. v. Department of Education (see DOE-SY0809-029), the Ninth Circuit clarified when the DOE will be required to reimburse tuition for private school placements made without the DOE's approval. The DOE may offer to settle a placement dispute by paying tuition for a specific period of time, or a hearings officer may order reimbursement. In both cases, the issue is whether the settlement agreement or the hearings officer "placed" the student in private school or only ordered the DOE to pay tuition for the time specified. The private school becomes the "stay put placement" in the former situation, see 20 U.S.C. § 1415(j), and the DOE must pay tuition during subsequent litigation over placement, which could take two or three years. Otherwise, the DOE has no obligation to pay tuition after the specified period ends.

The Ninth Circuit ruled that for stay put to apply, the settlement agreement or order must clearly state that the private school is deemed to be an appropriate placement, not just that reimbursement of tuition for a specified period is appropriate. K.D. was recently applied in one case to deny stay put, see DOE-SY1112-020 (3/23/2012), and in another that remanded the case to the hearings officer for clarification. See DOE-SY-120, on appeal, DOE v. C.B., D. Haw. Civ. No. 11-576 SOM-RLP, Doc. # 52 (3/29/12).

Practice Note: If the student presents a strong case for private placement, the DOE may offer to pay tuition for a specific period. If the settlement is accepted, a new due process request would have to be filed to continue the placement after the agreed period ends. It might be better to reject the settlement and proceed to hearing if the case is strong because a decision in the student'€™s favor would allow for continued placement under stay put.

 

UNILATERAL PRIVATE PLACEMENT - STATUTE OF LIMITATIONS
Parents seeking reimbursement for a unilateral private school placement must file a request for due process within 180 days. See HRS § 302A-443(a)(2). The 180-day period begins to run when the student is "enrolled" in private school, Makiko D. v. Hawaii, 550 F.Supp.2d 1238, 1248 (D. Haw. 2007), or when the student continues attending private school without the DOE'€™s agreement after a period for which the DOE paid tuition. DOE-SY1011-020 (3/23/2012).

PARENT'S REIMBURSEMENT OF STAY PUT PAYMENTS
Where the DOE pays private school tuition under "stay put" and ultimately prevails in the action, Judge Mollway recently wondered aloud whether the parent might be liable to reimburse those payments. DOE v. C.B. by Donna and Scott B., D. Haw., Civ. No. 11-576 SOM-RLP, Doc. # 52 at 16, fn. 4 (3/29/2012). The Court noted that the Hawaii Attorney General believes parents are not liable, and it noted precedents in other circuits supporting that belief. The Ninth Circuit has not addressed the issue, however, and Judge Mollway, at least, believes it is a fair question. See also Aaron P. v. DOE, D. Haw. Civ. No. 11-635 ACK-RLP, Doc. #100 at 25 (9/17/2012) (equitable relief could include restitution of funds paid).

The Fifth Circuit Court of Appeals has also not decided this issue, but it has explained why parents should not be liable for reimbursement: "A primary purpose of the stay-put provision is to protect a child from being put in an unsuitable placement and possibly incurring harm while awaiting the lengthy outcome of the litigation. If parents who are in compliance with the IDEA are required to reimburse the school district or the state, parents without substantial means could be forced to leave a child in the less suitable placement because they cannot afford to pay for the private interim placement. Additionally, parents may be forced to withdraw their child from a placement which they and the state agree is appropriate because the parents might not have the financial resources to repay the educational costs which accumulate during the litigation. This is directly contrary to the purpose of IDEA." St. Tammany Parish School Bd. v. Louisiana, 142 F.3d 776, 781-782 (5th Cir. 1998).

ATTORNEY'S FEES - JUDICIAL IMPRIMATUR
Attorney's fees may be paid under IDEA'€™s fee-shifting provision, 20 U.S.C. § 1415(i)(3), if the DOE agrees to pay reasonable fees or the student is the "revailing party" with sufficient "judicial imprimatur." The Court rejected a magistrate'€™s recommendation and held in Justin R. v. Matayoshi, D. Haw. Civ. No. 10-657 LEK-RLP, Doc. # 54 (2/23/2012), that a settlement agreement is an insufficient basis for an award of legal fees if it is not approved by the Court and only reserves jurisdiction to award fees.

Decision reversed March 10, 2014 (9th Cir. No. 12-16048) on the basis of Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir. 2002) (a plaintiff who enters into an enforceable private settlement agreement providing for judicial resolution of attorney fees is a "prevailing party.")

Useful Links

The following links may be used to access legal materials without charge:

Cornell Law School Legal Information Institute: http://www.law.cornell.edu

Redacted Due Process Decisions of Hawaii Hearings Officers: http://doe.k12.hi.us/reports/specialeducation/dueprocess/pdf1011/index.htm

Hawaii Government Directory and Guide: http://hawaii.gov/lrb/capitoli/dirguide

DOE Rules, Title 8, Chapter 60 ("Provision of a Free Appropriate Public Education"): http://lilinote.k12.hi.us/PUBLIC/ADMINR1.NSF/85255a0a0010ae82852555340060479d/a96bfdcf49e72a390a2576790079de56?OpenDocument

Obtain PACER access to Federal Court opinions and files (charge of 10 cents per page, except opinions are free): http://pacer.psc.uscourts.gov

Library of Congress: http://thomas.loc.gov/home/thomas.php