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:
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
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.
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.
©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
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
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.
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
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.")
The following links may be used to access legal materials without
Cornell Law School Legal Information Institute: http://www.law.cornell.edu
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
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