I. v. Department of Education
Filing
101
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/10/13. "The court affirms the decision of the Hearings Officer dated June 1, 2012, for the reasons stated above . The Clerk of Court is directed to enter judgment in both consolidated cases (Civ. No. 10-00381 SOM/BMK and Civ. No. 12-00342 SOM/BMK)." Associated Cases: 1:12-cv-00342-SOM-BMK, 1:10-cv-00381-SOM-BMK(emt, )CERTI FICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARCUS I., by and through his )
parent and next best friend, )
KAREN I.,
)
)
Plaintiff,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 10-381 SOM/BMK
CIVIL NO. 12-00342 SOM/BMK
ORDER AFFIRMING THE DECISION
OF THE ADMINISTRATIVE
HEARINGS OFFICER
ORDER AFFIRMING THE DECISION
OF THE ADMINISTRATIVE HEARINGS OFFICER
I.
INTRODUCTION.
Marcus I., an autistic child receiving services from
the State of Hawaii under the Individuals with Disabilities
Education Act (“IDEA”), and his mother have filed several
challenges to aspects of various educational plans proposed for
Marcus by the State of Hawaii Department of Education (“DOE”).
In Civil No. 10-00381 SOM/BMK, Marcus and his mother,
Karen I., sought reversal of the Administrative Hearings
Officer’s Findings of Fact, Conclusions of Law and Decision of
June 9, 2010, arguing that an Individualized Education Plan
(“IEP”) dated May 5, 2008, and an IEP dated May 4 and 12, 2009,
as well as the Prior Written Notices (“PWNs”) dated May 16, 2008,
and July 7, 2009, violated the IDEA, 20 U.S.C. §§ 1400-82.
The
Hearings Officer had concluded that Defendant DOE had offered
Marcus a Free Appropriate Public Education (“FAPE”) for the 200809 and 2009-10 school years.
The court rejected most of Marcus’s arguments on
appeal.
However, the court remanded two issues to the Hearings
Officer, stating in an order of May 9, 2011:
The court remands this case to the Hearings
Officer for the limited purpose of answering
two questions. First, the court requests
that the Hearings Officer determine whether
Baldwin High School, in conjunction with any
other appropriate agency that might be
involved with providing the IEP’s extended
school year, occupational therapy, and speech
therapy services, would have been able to
implement these aspects of Marcus’s 2009 IEP
for the 2009-10 school year. If Baldwin High
School did not have the capability to provide
these services, the court directs the
Hearings Officer to determine whether the May
2009 IEP could have provided Marcus with a
FAPE. If, and only if, the Hearings Officer
determines that the May 2009 IEP could not,
after all, have offered Marcus a FAPE, the
Hearings Officer may reopen proceedings to
address other issues, including but not
limited to any need for a residential
placement.
Second, the court requests that the
Hearings Officer determine whether the May
2008 educational placement offer of “the
public high school in his home community” was
specific enough to alert Marcus’s mother that
the school district was proposing Baldwin
High School. If the Hearings Officer
determines that the offer was not clear as to
the school placement, the court directs the
Hearings Officer to determine whether the May
2008 IEP and PWN could have provided Marcus
with a FAPE for the 2008-09 school year.
See Civil No. 10-00381 SOM/BMK, ECF No. 34.
2
On remand, the Hearings Officer, Richard A. Young,
received evidence in a two-day hearing.
On June 1, 2012, Young
issued Findings of Fact and Conclusions of Law and a decision in
which he said:
-The home school [Baldwin High School] in
conjunction with any other appropriate agency
that might be responsible for implementing
the May 2009 IEP had the ability to implement
the ESY [extended school year], OT
[occupational therapy], and speech therapy
services in the May 12, 2009 IEP; and
-The May 4, 2008 IEP offering educational
placement at “the public high school in his
home community” was specific enough to alert
Mother [Karen I.] that the school district
was proposing that Student [Marcus I.] be
placed at the home school, as opposed to the
alternative DOE high school [Maui High
School].
See Civil No. 12-00342 SOM/BMK, ECF No. 16-11.
On June 14, 2012, an appeal of the Hearing Officer’s
decision of June 1, 2012, was filed in this court.
12-00342 SOM/BMK, ECF No. 1.
See Civil No.
Because this appeal is simply a
continuation of the previous appeal, it was consolidated with the
previous appeal in Civil No. 10-00381 SOM/BMK.
00342 SOM/BMK, ECF No. 14.
See Civil No. 12-
Because only two limited issues were
remanded to the Hearings Officer, the court considers the scope
of the present appeal to be limited to the Hearing Officer’s
decision concerning those two issues.
To the extent Marcus
attempts to appeal anything unrelated to those issues, the court
sees no reason to revisit other matters.
3
II.
STATUTORY FRAMEWORK AND STANDARD OF REVIEW.
The statutory framework and standard of review were set
forth in this court’s previous order of May 9, 2011.
No. 10-00381 SOM/BMK, ECF No. 34.
See Civil
Those sections are
incorporated herein by reference.
III.
FACTUAL AND PROCEDURAL BACKGROUND.
The factual and procedural background were also set
forth in the court’s previous order of May 9, 2011.
See Id.
That section is also incorporated herein by reference and
supplemental only as necessary.
IV.
ANALYSIS.
A.
Speculative Evidence.
On Pages 9 through 11 of his Opening Brief, Marcus
claims that the Hearings Officer improperly relied on
“speculation evidence” in his Findings of Fact.
12-00342 SOM/BMK, ECF No. 22 at 9-11.
See Civil No.
The Opening Brief does not
identify which finding is supposedly based on improper
speculation.
This court has no duty to examine all of the
findings to determine whether any particular one is properly
supported by the evidence.
Marcus is unpersuasive in arguing
that the Findings of Fact in general are based on improper
speculation.
This court pressed counsel for Marcus for clarification
as to what was being challenged.
Marcus did list specific
4
findings in response to the court’s instructions, and those
specific findings are addressed in this order.
B.
The Findings of Fact Accurately Reflect the
Evidence.
At the hearing on the present appeal, Marcus said he
was challenging Findings of Fact 70, 74, 77, 94, 95, 96, and 98.1
Although Marcus takes issue with the substance of those findings,
Marcus’s challenge to those findings is misplaced.
supported by testimony or documentary evidence.
Each is
While other
evidence may have contradicted the findings, that does not mean
that the Hearings Officer erred in making findings that
accurately summarized evidence before him.
1.
Finding of Fact 70.
Finding of Fact 70 states, “However, according to the
special education transition teacher [Deborah Pearsall], special
1
Marcus also stated at the hearing that he was challenging
Finding of Fact 69, but based on the briefing submitted, that
fact does not appear to be one actually being challenged.
Finding of Fact 69 states, “According to Mother, special
education teacher E.H. [Elana Hamm], and the COTA [Marsha
Mahelona, certified occupational therapy assistant], at the May
5, 2008 IEP meeting, the DOE had never stated that the home
school was being offered as Student’s placement.” That finding,
which is consistent with Marcus’s theory on appeal, was supported
by the evidence. On page 31 of the April 3, 2012, transcript,
Karen testified that no one mentioned at the May 5, 2008, meeting
that Maui High School was being proposed as the placement for
Marcus. Similarly, on page 184 of the April 3, 2012, transcript,
Hamm testified that neither Baldwin High School nor Maui High
School was offered as a placement to Marcus. Finally, on pages
171 to 172 of the transcript of proceedings on April 3, 2012,
Mahelona testified that no offer of placement was discussed at
the meeting on May 5, 2008.
5
education teacher J.R. [John Riggs] spoke about implementing the
May 5, 2008 IEP at the home school [Baldwin High School].”
Finding of Fact 70 accurately reflects the testimony of Pearsall.
Page 280 to 282 of the transcript of proceedings on
April 25, 2012, establish that Pearsall was asked whether a
discussion of where Marcus was going to attend school had
occurred at the IEP meeting held on May 5, 2008.
Pearsall
responded by talking about David Riggs’s input at that meeting.
According to Pearsall, Riggs had discussed his special education
class at Baldwin High School, as well as concerns that Baldwin
was a large school environment compared to Loveland Academy.
Pearsall also recalled a discussion at that meeting of the lack
of fencing around the entirety of the Baldwin High School campus.
Other testimony discussed in other findings may have rebutted
Pearsall’s testimony, but such other testimony does not render
Finding of Fact 70 incorrect in noting what Pearsall testified.
2.
Finding of Fact 74.
Marcus’s challenge to Finding of Fact 74 suffers from
the same problem as his challenge to Finding of Fact 70--although
other testimony might rebut the substance of Finding of Fact 74,
Finding of Fact 74 accurately summarizes the evidence it refers
to.
For example, Finding of Fact 74 states, “However, it is
noted that the May 16, 2008 PWN [Prior Written Notice] states
6
that “{Student’s) [stet] educational placement is the public high
school in his home community”.
This accurately quotes the Prior
Written Notice of Department Action, ECF No. 13, Ex. 9 at PET
149.
Finding of Fact 74 then states, “Although the current
private school director [Patricia Dukes] testified that this
language left a lot of room for confusion, the special education
transition teacher [Pearsall] testified that the IEP team did not
offer Student placement at the current private school [Loveland
Academy].”
This statement is also supported by the record.
See
Test. of Patricia Dukes at 254-55, Apr. 25, 2012; Test. of
Deborah Pearsall at 284, Apr. 25, 2012.
Finding of Fact 74 finally states, “According to the
special education transition teacher [Pearsall], if the team
wanted to place Student in a school other than the home school
[Baldwin High School], the name of the alternate school would be
written in the PWN.”
record.
This statement was also supported by the
See Test. of Deborah Pearsall at 285, Apr. 25, 2012.
3.
Finding of Fact 77.
Finding of Fact 77 states, “Under the explanation
section, the May 16, 2008 PWN further states, ‘Parent[] and
school team agree that (Student) should transition to home and
family.
(Student) can receive educational and non-educational
benefit[s] in his home community public high school.’”
7
This
finding accurately quotes the Prior Written Notice of Department
Action dated May 16, 2008, ECF No. 13, Ex. 9 at PET 149.
4.
Finding of Fact 93.
Finding of Fact 93 noted that, in contrast to Mother’s
testimony, “the special education department head [Teressa Beard]
testified that the DOE was not cutting services to students.
Specifically, the DOE had contracted with QBO [Quality Behavioral
Outcomes] for behavioral intervention support services (‘BISS’) .
. . for students.”
testimony.
This statement accurately reflects Beard’s
For example, she stated in response to a question
about whether the DOE was cutting services that, “at the time in
2010 we had contracted BISS providers for our students at
Baldwin, so we had them in place.
So I’m going to say, no, we
did not cut them, at least not at my school.”
Teressa Beard at 354-55, Apr. 25, 2012.
See Test. of
Beard clarified that
Baldwin High School had contracts for BISS services at that time.
See id. at 356.
5.
Finding of Fact 94.
Finding of Fact 94 states, “Further, both the special
education department head [Teressa Beard] and the district
educational specialist [Lesley Alexander] stated that the home
school [Baldwin High School] and the DOE had the personnel and
facilities to provide the speech-language, occupational therapy,
and ESY services offered in the May 12, 2009 IEP.”
8
This
statement about the testimony is supported by the record.
Teressa Beard testified that Baldwin High School was ready and
able to provide the speech therapy, occupational, and ESY
services offered Marcus in the May 2009 IEP.
Teressa Beard at 326-27, Apr. 25, 2013.
See Test. of
Leslie Alexander
similarly testified that Baldwin High School had the resources to
provide the speech and occupation therapy offered Marcus in the
May 2009 IEP.
See Test. of Lesley Alexander at 383-84, Apr. 25,
2013.
Finding of Fact 94 then states, “Further, these
services could be provided after-school, on weekends, and on
school breaks.
If necessary, the DOE would contract service
providers or people to provide these services.”
accurately reflect Beard’s testimony.
These statements
See Test. of Teressa Beard
at 327, Apr. 25, 2013 (“Baldwin High School and the Department of
Education had the facilities and the personnel to provide these
services after school, on the weekends, [and] during school
breaks.
If we wouldn’t have had the personnel available for
those days and times, we would have contracted people, which was
-- it’s common practice to do that.”).
Finding of Fact 94 also states, “The district
educational specialist [Lesley Alexander] added that the DOE
already has contracts with QBO [Quality Behavioral Outcomes] to
provide BISS [behavioral intervention support services] and
9
paraprofessional services.”
Alexander’s testimony.
This statement accurately summarizes
See Test. of Lesley Alexander at 405,
Apr. 25, 2013 (“there is already a big statewide contract that
allows Quality Behavioral Outcomes to provide BISS services and
paraprofessional services.
The Department of Education is able
then at any time to contract them to say that we have a need for
a particular child.”).
6.
Finding of Fact 95.
Finding of Fact 95 states, “The special education
department head [Teressa Beard] contracted to have the BCBA
[board-certified behavioral analyst Beau Laughlin of Quality
Behavioral Outcomes] and the therapist from QBO [Kimberly Mills]
attend Student’s May 4, and 12, 2009 IEP meetings to provide
expertise on behavioral interventions and transition.”
This
statement is generally supported by the testimony of Teressa
Beard.
See Test. of Teressa Beard at 327-28, Apr. 25, 2012.
Beard testified that Laughlin was at the IEP meetings of May 4
and 12, 2009, and that Mills was at the IEP meeting of May 4,
2009.
See id.
Finding of Fact 95 then states, “QBO was not asked to
provide speech-language or occupational therapy services as the
DOE had its own speech-language and OT providers.”
statement also summarizes testimony.
This
Beard testified that, at
the time of the May 2009 IEP, the speech-language therapist was
10
Kristen McPhillips of the DOE.
363.
See Beard Test. at 325, 330, and
Beard further testified that occupational therapy would
have been provided on the Baldwin High School campus.
330.
Id. at
Although Beard did not recall the name of the person, she
testified that there was a DOE occupational therapist who
provided services to students.
Id. at 364.
Finding of Fact 95 states, “QBO personnel were asked to
help to develop plans and implement services for after school and
weekends.”
This statement is supported by Beard’s testimony.
See Test. of Teressa Beard at 329-30, Apr. 25, 2013 (“In order to
provide services outside of the regular school day, we would have
contracted most likely QBO, because we did contract with them at
the time, to provide weekends and evening after-school
services.”).
7.
Finding of Fact 96.
Finding of Fact 96 states, “The district education
specialist [Leslie Alexander] added that the BCBA [Beau Laughlin
of QBO] told her that QBO could implement Student’s ESY [extended
school year] program, and the QBO therapist [Kimberly Mills] told
her that QBO could provide Student with work readiness
opportunities.”
testimony.
This statement generally reflects Alexander’s
See Test. of Leslie Alexander at 382-83, Apr. 25,
2012.
11
8.
Finding of Fact 98.
Finding of Fact 98 states, “The special education
department head [Teressa Beard] further testified that both the
BCBA [Beau Laughlin of QBO] and the therapist from QBO [Kimberly
Mills] stated that they could provide services to Student any
time Student came to Maui.”
testimony.
This accurately reflects Beard’s
See Test. of Teressa Beard at 371, Apr. 25, 2013 (“Q:
. . . and its your understanding that QBO could provide those
services at any time when Marcus came to Maui.
A: Yes.”) and at
372 (“Q: And they [Laughlin and Mills] told you that they could
just -- as soon as Marcus would come, they could provide
services?
A: Yes.”).
9.
Summary of Accuracy of Findings of Fact.
Marcus appears to be disagreeing with the weight or
credibility that the Hearings Officer assigned to evidence in the
record.
The Hearings Officer’s findings are clearly not
unsupported by or contrary to what was in the record, and any
challenge by Marcus in that regard is rejected.
This court does
not find in Marcus’s papers any reason for this court to assign
different weights or to make different credibility assessments
with respect to witnesses who appeared personally before the
Hearings Officer.
12
C.
The Court Sees No Reason to Allow Relitigation of
Matters Previously Decided.
In the court’s previous order, the court remanded the
matter to the Hearings Officer to “determine whether the May 2008
educational placement offer of ‘the public high school in his
home community’ was specific enough to alert Marcus’s mother that
the school district was proposing Baldwin High School.”
After
taking evidence, the Hearings Officer concluded that “The May 4,
2008 IEP offering educational placement at ‘the public high
school in his home community’ was specific enough to alert Mother
that the school district was proposing that Student be placed at
the home school, as opposed to the alternative DOE high school.”
This appeal is limited to whether that conclusion was in error.
Marcus may not now relitigate issues previously decided
against him.
For example, the previous appeal argued that the
May 2008 Prior Written Notice failed to properly make an offer of
placement in violation of section 8-56-2 of Hawaii Administrative
Rules, 20 U.S.C. § 1412(a)(5), and 34 C.F.R. §§ 300.115 and
300.116.
#130.
See Civil No. 10-381 SOM/BMK, ECF No. 27 at PageID
The court rejected those arguments.
SOM/BMK, ECF No. 34 at PageID #s 236-43.
See Civil No. 10-381
Marcus may not now
relitigate that earlier decision on the present appeal, which is
limited to two narrow issues.
Moreover, to the extent Marcus now
argues that the Department of Education violated section 8-60-2
of Hawaii Revised Statutes, that argument is unpersuasive.
13
Section 8-60-2 became effective on November 23, 2009, well after
the May 2008 Prior Written Notice.2
D.
Marcus Shows No Error With Respect to the Hearing
Officer’s Conclusion that Reference to “the Public
High School in his Home Community” was Specific
Enough to Alert Mother that the DOE Was Proposing
Placement at Baldwin High School.
To the extent Marcus challenges the Hearings Officer’s
conclusion that the reference to “the public high school in his
home community” was specific enough to alert his mother that the
school district was proposing that Marcus be placed at Baldwin
High School, Marcus shows no error because that conclusion is
supported by the record.
Marcus’s mother, Karen, went to a
public school in Hawaii.
See Test. of Karen I. at 115, Apr. 3,
2012.
She therefore presumably understood that, in Hawaii,
students generally go to the public school in the district in
which they live.
See id. at 116.
Karen testified that Baldwin
was in her district and that her other son was actually going to
Baldwin.
Karen testified that Marcus had attended Waihee
2
The scope of any appeal to the Ninth Circuit is, of course,
a different matter. See ECF No. 53 in Civil No. 10-381 SOM/BMK.
It is this court’s intent that the these consolidated cases be
treated as if the present appeal is merely a continuation of
Civil No. 10-381 SOM/BMK and that the earlier case be treated as
if it had been stayed pending the remand. See Shapiro v.
Paradise Valley Unified Sch. Dist., 152 F.3d 1159, 1160-61 (9th
Cir. 1998) (stating that a district court should stay an action
when it remands a case to a hearings officer for additional
findings). Accordingly, the court orders the Clerk of Court to
return the $350 filing fee paid in the most recent appeal. See
Civ. No. 12-00342 SOM/BMK, ECF No. 3.
14
Elementary School, a school in her district.
See Test. of
Karen I. at 116-17, Apr. 3, 2012.
On August 20, 2008, the Department of Education sent
Karen a letter stating, “On 5/5/2008 an IEP Meeting was held for
Marcus and a Free and Appropriate Public Education was offered at
Baldwin High School.”
See Civil No. 10-00381 SOM/BMK, Docket No.
17 at Bates Stamp MI 334.
It goes on to say, “to date, Marcus
has not yet enrolled in Baldwin High School.”
Id.
This letter
was signed by Natalie Gonsalves, principal of Baldwin High
School.
Id. at MI 335.
Although Karen does not remember
receiving the letter, see Test. of Karen I. at 140, April 3,
2012, the letter was sent to Karen via Certified Mail and regular
mail.
Id. at MI 336 (Certified Mail Receipt) and MI 589.
The
only additional evidence suggesting that Karen did not receive
this letter is her explanation that, because she did not sign for
the letter, she must not have received it.
at 141.
See Test. of Karen I.
However, nothing in the record indicates that her
signature was even requested or required.
Although Karen denies that transitioning Marcus to
Baldwin High School was discussed at the May 2008 IEP meeting,
Lisa Gifford, who attended that meeting, testified that a final
offer of a FAPE was made at that meeting to provide Marcus
services at Baldwin High School.
726, Apr 15, 2010.
See Test. of Lisa Gifford at
Mary Auvil, the vice principal at Baldwin
15
High School, concurred that, at the May 2008 IEP meeting, the
team discussed Marcus’s return to Maui and attendance at Baldwin
High School.
See Test. of Mary Auvil at 964-65, April 16, 2010.
Auvil testified that, prior to the May 2008 IEP Meeting, Karen
had visited Baldwin High School and told administrators that she
wanted Marcus to be at home and in his home community.
Id. at
962.
At the hearing on remand, Deborah Pearsall testified
that the May 2008 IEP meeting was held at Baldwin High School and
attended by employees of Baldwin High School.
She testified that
nobody from Maui High School was present at the meeting.
Test. of Deborah Pearsall at 278-80, Apr. 25, 2012.
See
Pearsall
testified that, at that meeting, David Riggs, the variance
teacher at Baldwin, discussed Baldwin students’ community
involvement as well as how IEP goals would be implemented in his
classroom.
Pearsall also testified that concerns for Marcus’s
safety were discussed because the campus was not fully fenced and
Marcus had attempted to run away from Loveland on one occasion.
Id. at 281.
At the hearing of April 2, 2012, Karen was asked about
the Prior Written Notice of May 16, 2008.
That document
discussed transportation “for transition of Marcus to his home
community in Maui and relationship development with his immediate
family because Marcus has not lived in the same house as his
16
family for 7 years.”
It also discussed an after school program
“for transition into Marcus[’s] community” and stated, “Marcus
needs to transition to his home and family in his daily living[.]
Parent[] and school team agree that Marcus should transition to
home and family.
Marcus can receive educational and non-
educational benefit in his home community public high school.”
See Civil No. 10-00381 SOM/BMK, Docket No. 13 at Bates Stamp Nos.
PET 148-49.
Although Karen testified that she thought the Prior
Written Notice’s language was a “typo,” see Test. of Karen I. at
40, she later conceded at the hearing on remand that the Prior
Written Notice indicated that the plan was to transition Marcus
“back home.”
See id. at 131.
Reading the May 2008 Prior Written Notice as referring
to Baldwin High School is also supported by the Request for
Impartial Due Process Hearing dated November 10, 2009, which
states “Parent Karen [] reject IEP of 5.5.08 and prior written
notice [PWN] dated 5/16/08 proposing placement at Baldwin High
School as the least restrictive environment.”
See Civil No. 10-
00381 SOM/BMK, Docket No. 12 at Bates Stamp 2.
Marcus points to no evidence demonstrating that Maui
High School (located in Kahului), or any other high school, is
actually part of his district.
The Hearings Officer’s conclusion
was supported by evidence, and the Hearings Officer did not err
in concluding that the language of the 2008 Prior Written Notice
17
and IEP was sufficient to alert Karen that Marcus was to be
placed at his home school, which was Baldwin High School.
E.
Marcus Shows No Error With Respect to the Hearing
Officer’s Conclusion that the DOE Had the Ability
to Implement the IEP.
The court remanded this matter to the Hearings Officer
for a determination of
whether Baldwin High School, in conjunction
with any other appropriate agency that might
be involved with providing the IEP’s extended
school year, occupational therapy, and speech
therapy services, would have been able to
implement these aspects of Marcus’s 2009 IEP
for the 2009-10 school year.
After taking additional evidence, the Hearings Officer
concluded:
The home school [Baldwin High School] in
conjunction with any other appropriate agency
that might be responsible for implementing
the May 2009 IEP had the ability to implement
the ESY [extended school year], OT
[occupational therapy], and speech therapy
services in the May 12, 2009 IEP.
This conclusion is supported by the record.
For
example, Natalie Gonsalves, the principal of Baldwin High School,
testified that, if a child’s IEP calls for some sort of an after
school program, one is provided.
at 653, Apr. 15, 2010.
See Test. of Natalie Gonsalves
In other words, Baldwin High School looks
at an individual’s IEP and provides the individualized program
stated in the IEP.
Id. at 653-58, 661.
18
Although Baldwin High School does not have a weekend
program for special education services, Teressa Beard, the
Special Education head at Baldwin High School, testified that the
Department of Education will provide necessary services on
weekends.
She testified that Baldwin has students receiving such
services.
See Test. of Teressa Beard at 784, Apr. 15, 2010.
She
testified that, depending on the student’s needs, a person would
be hired to provide evening and weekend work.
Id.
With respect
to occupational therapy, she testified that, “whatever the IEP
team decided they need on a daily or a weekly basis, a monthly
basis, then that’s what they get.”
Id. at 785-86.
true with respect to speech and language services.
The same was
Id. at 789.
At the hearing on remand, Beard testified that Baldwin
was ready and able to provide the occupational therapy, speech
and language services, and extended school year services stated
in Marcus’s IEP.
2012.
See Test. of Teressa Beard at 326-27, Apr. 25,
Lesley Alexander, the district educational specialist,
testified that the district had the ability to provide the
services called for in Marcus’s IEP.
She further testified that,
if the district became unable to provide those services, it had
the ability to hire outside providers to fulfill the
requirements.
See Test. of Lesley Alexander at 383-84, Apr. 25,
2012.
19
Given this testimony, Marcus shows no error in the
Hearing Officer’s conclusion that Baldwin High School could
provide the services offered to Marcus in his IEP.
There may
have been testimony to the contrary, but the Hearings Officer was
in a position to judge the credibility of differing witnesses.
V.
CONCLUSION.
The court affirms the decision of the Hearings Officer
dated June 1, 2012, for the reasons stated above.
The Clerk of Court is directed to enter judgment in
both consolidated cases (Civ. No. 10-00381 SOM/BMK and Civ. No.
12-00342 SOM/BMK).
IT IS SO ORDERED.
DATED: Honolulu, June 10, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Marcus I., et al. v. Dep’t of Educ., State of Hawaii, Civ. Nos. 12-00342 SOM/BMK and
Civ. No. 10-381 SOM/BMK; ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS
OFFICER
20
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