I. v. Department of Education

Filing 34

ORDER PARTIALLY VACATING AND REMANDING THE HEARINGS OFFICER'S JUNE 9, 2010, DECISION - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/9/11. ("If, following remand, an appeal of the Hearings Officer's new ruling is appealed to this federal court, the court directs the appealing party to inform the Clerk of Court that the appeal is related to the present case and so should be assigned to the same judge.") (emt, )CERTIFICATE OF SERVICE Participants 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. 10-00381 SOM/BMK
ORDER PARTIALLY VACATING AND
REMANDING THE HEARINGS
OFFICER’S JUNE 9, 2010,
DECISION

ORDER PARTIALLY VACATING AND REMANDING
THE HEARINGS OFFICER’S JUNE 9, 2010, DECISION
I.

INTRODUCTION.
This case marks the third time that Marcus I., an

autistic child receiving services from the State of Hawaii under
the Individuals with Disabilities Education Act (“IDEA”), and his
mother have appeared before this court to challenge an
educational plan proposed for Marcus by the State of Hawaii
Department of Education (“DOE”).

Marcus’s mother, proceeding on

behalf of Marcus, seeks reversal of the Administrative Hearings
Officer’s Findings of Fact, Conclusions of Law and Decision
(“Decision”) regarding Marcus’s education.

The Decision, issued

on June 9, 2010, concluded that Defendant DOE had offered Marcus
a Free Appropriate Public Education (“FAPE”) for the 2008-09 and
2009-10 school years.

Marcus’s mother appeals this ruling,

arguing that two Individualized Education Plans (“IEP”) (i.e.,
the IEP dated May 5, 2008, and the IEP dated May 4 and 12, 2009),

as well as the Prior Written Notices (“PWN”) dated May 16, 2008,
and July 7, 2009, violated the IDEA, 20 U.S.C. §§ 1400-1482, in a
number of different ways.
The court rejects the majority of Marcus’s mother’s
claims of error because they are largely unsupported by the
record.

However, the court concludes that there are unresolved

factual issues regarding: (1) whether 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 extended school year, occupational therapy, and
speech therapy services in that IEP; and (2) 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 that Marcus be placed at
Baldwin High School, as opposed to Maui High School.

The court

now vacates the Decision and remands those two issues to the
Hearings Officer for the limited purpose of conducting further
proceedings limited to those issues.
II.

STATUTORY FRAMEWORK.
“The IDEA is a comprehensive educational scheme,

conferring on disabled students a substantive right to public
education.”

Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298,

1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310
(1988)).

For a state to qualify for federal financial assistance

2

under the IDEA, it “must demonstrate that it ‘has in effect a
policy that assures all handicapped children the right to a free
appropriate public education.’”

Board of Educ. of Hendrick

Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 180-81 (1982)
(“Rowley”) (quoting 20 U.S.C. § 1412(1)).

According to the IDEA,

a FAPE consists of:
special education and services that(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(B) meet the standards of the State
educational agency;
(C) include an appropriate preschool,
elementary school or secondary school
education in the State involved; and
(D) are provided in conformity with the
individualized education program required
under section 1414(d) of this title.
20 U.S.C. § 1401(9).

To provide a FAPE in compliance with the

IDEA, a state educational agency receiving federal funds must
evaluate a student, determine whether that student is eligible
for special education and services, conduct and implement an IEP,
and determine an appropriate educational placement for the
student.

See 20 U.S.C. § 1414.
The student’s FAPE must be “tailored to the unique

needs of the handicapped child by means of an ‘individualized
educational program’ (IEP).”
U.S.C. § 1401(18)).

Rowley, 458 U.S. at 181 (citing 20

The IEP, which is prepared at a meeting
3

between a qualified representative of the local educational
agency, the child’s teacher, the child’s parents or guardian,
and, when appropriate, the child, consists of a written document
containing:
(i) A statement of the present levels of
educational performance of the child;
(ii) A statement of annual goals, including
short-term instructional objectives;
(iii) A statement of the specific educational
services to be provided to the child, and the
extent to which the child will be able to
participate in regular educational programs;
. . . .
(v) The projected date for initiation and
anticipated duration of these services; and
(vi) Appropriate objective criteria and
evaluation procedures and schedules for
determining on at least an annual basis,
whether instructional objectives are being
achieved.
34 C.F.R. § 222.50.

Local or regional educational agencies must

review, and, when appropriate, revise each child’s IEP at least
annually.

20 U.S.C. § 1414(d)(4).

In addition, “[p]arental

involvement is a central feature of the IDEA.”
at 1300.

Hoeft, 967 F.2d

“Parents participate along with teachers and school

district representatives in the process of determining what
constitutes a ‘free appropriate public education’ for each
disabled child.”

Id.

In addition to the IEP, the IDEA also requires written
4

prior notice to parents when an educational agency proposes, or
refuses, to initiate or change the educational placement of a
disabled child.

See 20 U.S.C. § 1415(b)(3).

The parties in this

case refer to these notices as “PWNs.”
Violations of the IDEA may arise in two situations.
First, a school district, in creating and implementing an IEP,
may run afoul of the IDEA’s procedural requirements.
U.S. at 205-06.

Rowley, 458

However, procedural flaws in the IEP process

only deny a child a FAPE when the flaws affect the “substantive
rights” of the parent or child, including the loss of a child’s
educational opportunity or an infringement on the parents’
opportunity to participate in the IEP process.

L.M. v.

Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009).
Second, a school district may become liable for a
substantive violation of the IDEA by drafting an IEP that is not
reasonably calculated to enable the child to receive educational
benefits.

Id. at 206-07.

The district must provide the student

with a FAPE that is “appropriately designed and implemented so as
to convey” to the student a “meaningful” benefit.
Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).

Adams v.

Marcus’s mother

alleges that the DOE violated the IDEA’s substantive and
procedural requirements.
When a public school fails to provide a FAPE, and the
parent establishes that placement at a private school is

5

appropriate, the IDEA authorizes reimbursement.

See 20 U.S.C.

§ 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Ed.
of Mass., 471 U.S. 359, 370 (1985).
III.

FACTUAL AND PROCEDURAL BACKGROUND.
At the time of the Hearings Officer’s Decision, Marcus

I. was sixteen years old.

Administrative Record (“AR”) at 96.

Marcus receives his education at Loveland Academy, a private
mental health program on Oahu.

Id. at 94, 96.

residential facility run by Loveland Academy.

Marcus lives at a
Id. at 96.

Marcus’s mother and two younger siblings live on Maui, although
Marcus’s mother is away from Maui two weeks out of every month
because of her job as a flight attendant.

Id.; Transcript of

Proceedings (“Transcript”) at 22.
Through an August 9, 2006, Settlement Agreement, the
parties agreed to place Marcus at Loveland Academy for the 200607 school year.

AR at 97.

In an earlier case, Marcus’s mother

challenged Marcus’s two 2007-08 IEPs, which had placed Marcus at
a residential facility in Texas.

Id.

The Hearings Officer found

in favor of the DOE, a ruling upheld by Judge Ezra of this court.
See Marcus I. ex rel. Karen I. v. Hawaii, Dep’t of Educ., Civ.
No. 08-00491 DAE/BMK, 2009 WL 3378589 (D. Haw. Oct. 21, 2009).
However, Judge Ezra determined that the DOE had not been entirely
forthright before the Hearings Officer.

See id. at *8-*9.

Specifically, Judge Ezra noted that the DOE had received

6

additional information relevant to Marcus’s development at
Loveland Academy prior to the due process hearing, and had
subsequently met to fashion a new IEP that proposed placement at
a local public school.

The DOE nevertheless argued to the

Hearings Officer that the IEP proposing placement in Texas
constituted the least restrictive environment (“LRE”) for Marcus.
See id.

Judge Ezra noted that Lisa Gifford, a district special

education specialist, failed to inform the Hearings Officer that
Marcus had progressed to the point that the district was
recommending he be placed in a public high school.
*9.

See id. at

This testimony, the court held, “certainly didn’t paint a

full picture of Marcus’s abilities and needs.”

Id.

Nevertheless, noting that the court was limited to reviewing the
IEPs at the time they were drafted, Judge Ezra determined that
the IEPs did not deny Marcus a FAPE.

Id. at *9-*10.

Marcus

appealed Judge Ezra’s ruling, and the matter was referred to
mediation by the Ninth Circuit following oral argument earlier
this year.
Marcus’s May 16, 2008, PWN stated that Marcus’s
“educational placement” was “the public high school in his home
community.”

See Petitioners’ Exhibits (“PET”) 148.

The 2008 IEP

largely recommended that Marcus be educated in special education
classes, separate from the general education peers.
generally PET 46-63.

See

Among many other provisions, Marcus’s 2008

7

IEP provided for interaction with nondisabled peers in 50 percent
of Marcus’s extracurricular and extended school year activities.
See PET 62.
Marcus’s May 2009 IEP required, inter alia, that Marcus
receive extensive extended year services after school and on
weekends, occupational therapy twice a week, and speech therapy
five times a week.

PET 41.

The IEP also required one-to-one

paraprofessional support during the school day, after school, and
on weekends.

Id.

On November 10, 2009, Marcus’s mother filed her request
for a due process hearing concerning the IEPs and PWNs at issue
here.

AR at 97.

Hearings Officer Richard A. Young conducted the

due process hearing and heard testimony over the course of five
days in April 2010.

AR at 95-96.

The DOE presented evidence that Marcus’s mother was
present at an April 23, 2008, meeting to review evaluations and
telephonically participated in the May 5, 2008, meeting regarding
Marcus’s 2008 IEP.

Transcript at 936-37; Respondent’s Exhibits

(“MI”) at 33-34 (meeting sign-in sheets).
held at Baldwin High School.

MI at 33-34.

Both meetings were
Marcus’s mother

testified at the administrative hearing that she did not recall
discussion at the meetings about placing Marcus at Baldwin High
School.

Transcript at 55.

In response, the DOE offered

testimony of Mary Auvil, who was vice-principal of Baldwin High

8

School in May 2008, that the IEP team did discuss placing Marcus
at Baldwin High School at the May 5, 2008, IEP meeting.

See

Transcript at 964-65.
Marcus’s mother testified that she visited Baldwin High
School the week before the administrative hearing and was told by
the special education teacher, Shaun Dunn, as well as the head of
the special education department, Teressa Beard, that Baldwin did
not have the ability to offer the extended school year services,
speech therapy, and occupational therapy listed in the May 2009
IEP.

Transcript at 58-63, 69-74.

Her testimony was corroborated

by Patricia Dukes, the head of Loveland Academy, and Elena Hamm,
a special education teacher at Loveland Academy, both of whom
accompanied Marcus’s mother to Baldwin High School.
at 203-04, 436-37.

Transcript

Dukes further testified that the Baldwin High

School program was inappropriate for Marcus because there were no
fences or gates, which Marcus needed to prevent him from running
away.

She testified that the other students at Baldwin High

School appeared lower functioning than Marcus and that the
facilities were dirty and noisy.

Transcript at 437-45.

Natalie Gonsalves, the principal at Baldwin High
School, testified that a child’s IEP controls the services that
are provided.

Transcript at 653-63.

She testified that Baldwin

High School would have created an after-school care program for
Marcus if the IEP provided for such a program.

9

Transcript at

662-63.

Gonsalves testified that some of Marcus’s extended

school year services (such as after-hours services) might have
been provided by the Department of Health rather than the
Department of Education, but admitted that no one from the
Department of Health had attended Marcus’s May 2009 IEP meeting.
Transcript at 665-68.
The Hearings Officer issued his decision on June 9,
2010.

AR at 94.

He held that Marcus’s mother had failed to

demonstrate that the 2008 or 2009 IEPs and PWNs denied Marcus a
FAPE, that Baldwin High School was an appropriate placement for
Marcus, and that Marcus’s mother had failed to establish
discrimination by the DOE against Marcus or Marcus’s mother in
any way.

AR at 112.

This appeal followed.

IV.

STANDARD OF REVIEW.
Any party aggrieved by a decision of a due process

hearings officer under the IDEA may appeal the findings and
decision to any state court or a United States district court.
20 U.S.C. § 1415(i)(2)(A).

The party challenging the

administrative decision has the burden of proving deficiencies in
the administrative decision.

Seattle Sch. Dist., No. 1 v. B.S.,

82 F.3d 1493, 1498 (9th Cir. 1996).
When evaluating an appeal of an administrative
decision, a court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence

10

at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.”
V.

20 U.S.C. § 1415(i)(2)(C).

ANALYSIS.
A.

Alleged Substantive Defects in the May 2009 IEP.

Marcus’s May 2009 IEP requires, inter alia, the
following services for Marcus:
(1) Extended school year services of 180
minutes after school during the weekdays
(from 2:00 PM to 5:00 PM) and 300 minutes per
day on the weekends;
(2) Occupational therapy for 30 minutes
twice per week;
(3) Speech and language therapy for 30
minutes five times per week; and
(4) One-to-one paraprofessional support for
300 minutes per day, for health and safety
reasons; and one-to-one paraprofessional
support for after school and weekend support.
See PET 41.
Marcus’s mother argues that Baldwin High School lacked
the capacity to implement these aspects of the IEP.
28-32.

Pet. Br. at

According to Marcus’s mother, she visited Baldwin High

School, along with Dukes and Hamm, and spoke with the current
teacher of Baldwin’s CBI program, Shaun Dunn, as well as Teressa
Beard, head of the special education department.
Transcript at 59.

Pet. Br. at 29;

Dunn and Beard told the group that the CBI

program did not have an after-school component.

11

Transcript at

59, 443.

Dunn told them that occupational therapy was offered

only once a quarter for fifteen minutes, Transcript at 60-62,
203, 442, and that speech therapy was offered only once a week,
Transcript at 62, 203, 441-42.
support planned for Marcus.

Dunn was not aware of any weekend

Transcript at 63.

Additionally,

according to Marcus’s mother, the paraprofessional support
employed by Baldwin High School lacked proper training.

See Pet.

Br. at 29; Transcript at 71.1
Marcus’s mother also offered testimony, through Dukes,
that the Baldwin High School program was inappropriate for Marcus
because there were no fences or gates, which he needed to prevent
him from running away, because the other students were lower
functioning than Marcus, and because the facilities were dirty
and noisy.

Transcript at 437-45.
In response, the DOE presented testimony from

Gonsalves, the Baldwin High School principal, that a child’s IEP
controls the services that are provided.

Transcript at 653-63.

As noted above, Gonsalves testified that Baldwin would have
created an after-school care program for Marcus if the IEP

1

Marcus’s mother also argues, without factual or legal
support, that “the goals and objectives in the IEP itself are not
community-based” and “require classroom intervention and
instruction.” Pet. Br. at 29. Because Marcus’s mother fails to
support these contentions beyond a bare assertion, the court
deems this argument to be waived on appeal. See Te-Moak Tribe of
W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 614
n.23 (9th Cir. 2010); Entm’t Res. Group, Inc. v. Genesis Creative
Group, Inc., 122 F.3d 1211, 1217 (9th Cir. 1997); Local Rule 7.6.
12

provided for such a program and that some of Marcus’s extended
school year services might have been provided by the Department
of Health rather than the Department of Education, but admitted
that no one from the Department of Health attended Marcus’s May
2009 IEP meeting.

Transcript at 662-68.

Finally, the DOE

argued, the visit to Baldwin High School testified to by Marcus’s
mother and the Loveland Academy staff was not relevant because it
occurred the week prior to the administrative hearing, rather
than at the time the contested IEP was developed.

See Resp. Br.

at 17 n.11; Transcript at 59, 181, 436.
Marcus’s mother made the argument she advances before
this court to the Hearings Officer, see AR at 71-73, and the
Hearings Officer’s findings of fact acknowledge the testimony
above, see Decision, AR at 100-01.

However, the Decision does

not expressly address the perceived shortcomings with the IEP’s
implementation identified by Marcus’s mother and her witnesses.
See generally Decision, AR at 110-11 (addressing “Whether the May
12, 2009 IEP Offered Student a FAPE in the LRE”).

The Hearings

Officer found that the open nature of Baldwin’s campus would not
pose a danger to Marcus because Marcus would be provided with a
personal aide, and the security personnel at Baldwin could deal
with Marcus’s “limited elopement issues.”

AR at 110.

However,

the Decision did not address whether Baldwin High School had the
ability to provide the extended school year services, speech

13

therapy, and language therapy outlined in the IEP.
Instead, the Hearings Officer’s Decision relied heavily
on the expectation that Marcus would learn socialization and
familiarity with his home community by attending Baldwin High
School (as opposed to Loveland Academy, which is located on
Oahu).

AR at 111.

According to the Hearings Officer, “Student’s

greatest need is to be provided with the motivational and
socialization opportunities that placement at the home school
will provide.”

Id.

Therefore, the Hearings Officer concluded,

the May 2009 IEP offered Marcus a FAPE.
The court agrees that the record supports a finding
that Baldwin High School would offer greater socialization and
contact with Marcus’s home community than Loveland.

However, the

court cannot determine from the record whether Baldwin High
School had the ability to implement the IEP, specifically the
extended year services, occupational therapy, and speech therapy
required.

If Baldwin High School lacked the ability to implement

these material provisions of the IEP for the 2009-10 school year,
the court questions how the IEP could provide Marcus a FAPE.

See

Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811,
822 (9th Cir. 2007) (holding that “a material failure to
implement an IEP violates the IDEA” and explaining that “[a]
material failure occurs when there is more than a minor
discrepancy between the services a school provides to a disabled

14

child and the services required by the child’s IEP”); see, e.g.,
id. at 823-25 (holding that a five-hour-per-week shortfall in
math instruction constituted a material failure to implement the
IEP, but that minor failures to implement the child’s “behavior
management plan” did not violate the IDEA).
The Hearings Officer is best equipped to 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, had the ability to implement these aspects of
Marcus’s May 2009 IEP.

The court therefore remands this case to

the Hearings Officer for the limited purpose of determining this
issue.
B.

Failure to Name Specific School (May 2008 PWN).

Marcus’s mother argues that the May 2008 IEP and PWN
are flawed because the PWN “only offers an unspecified location
of services and not an educational setting.”

Pet. Br. at 21.

Specifically, Marcus’s mother objects to the PWN’s placement of
Marcus in “the public high school in his home community.”
see PET 148.

Id.;

According to Marcus’s mother, this violates 20

U.S.C. § 1414(d)(1)(A)(i), 34 C.F.R. §§ 300.115-300.116, the
Ninth Circuit’s holding in Union School District v. Smith, 15
F.3d 1519 (9th Cir. 1994), and Hawaii Administrative Rules § 856-2.

Pet. Br. at 21-26.

Marcus’s mother’s argument is not

15

completely clear, but it appears she is contending that she did
not know whether Baldwin High School or Maui High School, the
other local high school in her community, was being offered to
Marcus.
The Hearings Officer rejected Marcus’s mother’s
contention that the DOE was required to inform Marcus’s mother
what school Marcus would be placed in.

The Hearings Officer held

that “the DOE is only obligated to state the level of placement,
not the location of the placement.”

AR at 109.

He did not,

therefore, address Marcus’s mother’s contention that she did not
understand where Marcus was being placed.

The DOE, in its

briefing, similarly asserts that “[t]here is no requirement that
a FAPE specifically state the actual school and the specific
classroom where the student will receive their educational
program.”

Resp. Br. at 36.

The DOE also argues that the IEP

team discussed Baldwin High School at the May 5, 2008, IEP
meeting.

See id. at 36 (citing testimony of Mary Auvil,

Transcript at 964-65).

In response, Marcus’s mother points to

her own testimony that she does not recall whether Baldwin High
School was discussed at the May 2008 IEP meeting.

Transcript at

55.
It is not clear to the court, on the current record
presented by the parties, that the placement offer was specific
enough for Marcus’s mother to determine whether Marcus would

16

attend Baldwin High School or Maui High School.

If it was not,

this ambiguity likely violates the Ninth Circuit’s holding in
Union School District.

In that case, a school district failed to

present the parents of an autistic child with a formal offer of
placement in the district’s program for autistic children because
it believed the child resided out of district, such that the
district was not responsible for the child’s education.
F.3d at 1524-25.

See 15

After the Hearings Officer determined that the

family resided in the defendant’s district, the district then
argued that the district’s program would have been an appropriate
placement for the child, and the reason the school district
failed to offer placement there was the parents’ expressed
unwillingness to consider that placement.

Id. at 1525.

The Ninth Circuit rejected this argument, and held that
the school district’s failure to “offer formally an appropriate
educational placement” violated the IDEA.

Id. at 1526.

“The

requirement of a formal, written offer,” the court reasoned,
“creates a clear record that will do much to eliminate
troublesome factual disputes many years later about when
placements were offered, what placements were offered, and what
additional educational assistance was offered to supplement a
placement, if any.”

Id.

Moreover, the court held, “a formal,

specific offer” would have allowed the parents to consider
whether to accept the specific school offered and would prepare

17

the district to present evidence regarding that particular school
at a due process hearing.

Id.

Ultimately, the school district’s

failure to identify a school at which special educational
services were to be provided gave the parents nothing to
evaluate, and so violated the IDEA.

Id.2

The DOE’s offer in this case, while certainly more
definite than the proposal in Union School District, poses some
of the same potential problems.

Although there is no indication

that Marcus’s mother would have accepted a placement at either
Baldwin High School or Maui High School, without a formal offer,
she had nothing to officially evaluate.

Indeed, as she points

out, aspects of the IEP seem to suggest that the DOE was
proposing a placement off-island, rather than at either Baldwin

2

At the hearing on this motion, the DOE argued for the first
time that Union School District has been superseded by a
provision of the Code of Federal Regulations--specifically, 34
C.F.R. § 300.116 (“Placements”), promulgated in 2006. The DOE
referred the court to subsection (b), arguing that there is now
no requirement that a placement be in writing. It is true that
subsection (b) does not indicate whether a placement must be in
writing. However, section 300.116(b) is identical in substance
to former section 300.552(a), which was in existence at the time
Union School District was decided. See 34 C.F.R. § 300.552(a)
(1994); Notice of Proposed Rulemaking, 70 Fed. Reg. 35,782,
35,787 (June 21, 2005) (“Proposed § 300.116, regarding
placements, would retain the language currently in § 300.552,
except that paragraph (b)(3) would be revised to clarify that a
child’s placement must be as close as possible to the child’s
home unless the parent agrees otherwise.”). Because a
substantially similar provision governing placements was in place
at the time Union School District was decided, the court
concludes that section 300.116 does not alter the applicability
of the Ninth Circuit’s holding in Union School District.
18

High School or Maui High School.

See Pet. Br. at 27; May 2008

IEP, PET 61 (providing that “One transportation service line is
for the student to travel to see his family and one
transportation line will be for Marcus’ family to visit him on
Oahu.

The student will have 2:1 adult supervision with familiar

educational assistants . . . during air transit . . . .”).
The remand of this PWN issue is not intended to suggest
that Marcus’s mother’s claim to confusion should necessarily be
accepted.

The IEP meeting itself, which Marcus’s mother

participated in telephonically, as well as an April 2008 meeting
convened to review Marcus’s evaluations, which Marcus’s mother
attended in person, were both held at Baldwin High School.
33-34; Transcript at 936-37.

MI at

The DOE presented testimony that

Baldwin High School was indeed discussed at the May 2008 IEP
meeting, notwithstanding Marcus’s mother’s testimony that she did
not recall such a discussion.

It is also possible that Maui High

School is not actually in Marcus’s mother’s home community, or it
may not have had the programming available at Baldwin High School
for disabled children.

Alternatively, administrators at Baldwin

High School may have had sufficient contact with Marcus’s mother
to have made it unreasonable for her to claim confusion about the
PWN’s proposed placement.

In short, there is a disputed issue of

fact on this issue that should be resolved by the Hearings
Officer in the first instance.

In ordering this remand, this

19

court is well aware that it has the authority to conduct its own
evidentiary hearing on this matter (as well as on the previously
mentioned issue of Baldwin High School’s ability to implement
that May 2009 IEP).

However, because the Hearings Officer has

already received evidence relevant to the remand subjects, it
appears to this court to be more efficient to ask the Hearings
Officer to make these determinations.
Marcus’s mother’s remaining contentions of error with
respect to the offer in the PWN are unfounded.

Section 1414

requires, inter alia, that an IEP state “the projected date for
the beginning of the services and modifications . . . , and the
anticipated frequency, location, and duration of those services
and modifications.”
added).

20 U.S.C. § 1414(d)(1)(A)(i)(VII) (emphasis

However, the IDEA’s requirement that an IEP specify a

“location” does not require the IEP to state a particular school.
As the Second Circuit has explained, the United States Department
of Education (“USDOE”) considered this issue in its commentary to
1997 amendments to the IDEA.

See T.Y. v. N.Y.C. Dep’t of Educ.,

584 F.3d 412, 419-20 (2d Cir. 2009).

The USDOE concluded that

“[t]he location of services in the context of an IEP generally
refers to the type of environment that is the appropriate place
for provision of the service.

For example, is the related

service to be provided in the child’s regular classroom or
resource room?”

Id. at 420 (quoting Assistance to States for the

20

Education of Children with Disabilities & the Early Intervention
Program for Infants & Toddlers, 64 Fed. Reg. 12,406, 12,594 (Mar.
12, 1999)).

The Second Circuit further noted that the Senate

Commentary provided “regular classroom” as an example of
“location.”
(1997)).

584 F.3d at 420 (citing S. Rep. No. 105-17, at 21

Therefore, “location” does not refer to a specific

school.
This court is not bound by the Fourth Circuit’s ruling
to the contrary in A.K. ex rel. J.K. v. Alexandria City School
Board, 484 F.3d 672 (4th Cir. 2007), cited by Marcus’s mother,
Pet. Br. at 26, and the court declines to follow the holding of
the Fourth Circuit.

See A.K., 484 F.3d at 680-83 (holding that

an IEP’s offer of an unspecified “private day school” violated
the IDEA’s requirement that an IEP state the “location” of
services).

The court notes that this decision failed to consider

the commentary by the USDOE or the Senate, discussed above.
In this case, the IEP specifies the “location” of
various services to be provided to Marcus I. as “Special Ed.” and
“General Ed./SPED.”

See PET 60.

The IEP therefore satisfied the

requirements of § 1414(d)(1)(A)(i)(VII).
Nor has Marcus’s mother demonstrated that the IEP or
PWN violates 34 C.F.R. §§ 300.115 or 300.116, or former Hawaii
Administrative Rules § 8-56-2.

Section 300.115 requires

generally that public agencies maintain a “continuum” of

21

placements that can “meet the needs of children with disabilities
for special education and related services.”
§ 300.115(a).

34 C.F.R.

Section 300.116 contains additional requirements

related to the selection of an educational placement, and
Marcus’s mother points the court to language requiring that,
“[i]n selecting the LRE, consideration [be] given to any
potential harmful effect on the child or on the quality of
services that he or she needs.”

See also Haw. Admin. Rules § 8-

56-2 (2009) (“Placement shall be provided in the least
restrictive environment in a continuum of educational
arrangements.).

Marcus’s mother offers no evidence that the DOE

has failed to maintain a continuum of placements.

Moreover, she

fails to explain how the designation of “the public high school
in [Marcus’s] home community” (as opposed to Baldwin High School
or Maui High School in particular) fails to consider potential
harmful effects on Marcus or the quality of services he needs.
Pursuant to Union School District, the court remands
this case to the Hearings Officer for the limited purpose of
determining whether the placement offer made by the DOE was
specific enough to alert Marcus’s mother that Baldwin High School
was the offered location.
C.

The Court Denies the Remainder of the Appeal.

Finally, the court holds that Marcus’s mother has
failed to establish the remaining asserted errors in the Hearings

22

Officer’s decision.

Marcus’s mother, as the party challenging

the administrative ruling, bears the burden of proof in this
proceeding.

See Hood v. Encinitas Union Sch. Dist., 486 F.3d

1099, 1103 (9th Cir. 2007); see also J.W. ex rel. J.E.W. v.
Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir. 2010)
(challenging party must show by a preponderance of the evidence
that the hearing decision should be reversed).

When an appellant

has failed to support an argument beyond a bare assertion, courts
deem the argument to be waived.

Te-Moak Tribe of W. Shoshone of

Nev., 608 F.3d at 614 n.23; Entm’t Res. Group, Inc., 122 F.3d at
1217; see also Local Rule 7.6 (requiring factual support for each
assertion of fact in any motion or appeal).

The court rejects

the following claims of error as unsupported by the record and by
relevant legal authority.
1.

Whether the DOE Denied Marcus’s Mother
Meaningful Access to the IEP Process by
Failing to Inform Her of a Change in
Placement (May 2008 IEP).

Pages 19 to 21 of Marcus’s mother’s opening brief,
under the heading “The IEP of May 5, 2008 is Procedurally and
Substantially Flawed and Therefore Does Not Provide Marcus with a
FAPE,” appears to argue that the DOE switched gears abruptly in
2008 by changing its recommended placement from a residential
placement in Texas to Baldwin High School.

Pet. Br. at 19-20.

Marcus’s mother then asserts:
The credible and verifiable testimony from
23

parent Karen I. and the Loveland staff was
that the DOE District never made an oral
offer of FAPE for a public school on Maui at
the May 5, 2008 IEP meeting (see ARA TR I
page 55, line 7). This action deprives the
parent of an effective participation at the
meeting.
Pet. Br. at 20.
This two-sentence argument is not sufficient to show
any error in the Hearings Officer’s Decision.

Marcus’s mother

does not attempt to establish that the DOE was required to make
an oral offer of a particular school at the meeting, or otherwise
explain why she was deprived of effective participation.

She

does not allege that the Hearings Officer found her testimony to
be credible, nor does she challenge an adverse factual finding
against her.

In short, Marcus’s mother provides no explanation

sufficient to persuade the court that this presents a procedural
violation of the IDEA.
2.

Whether the DOE Failed to Consider the
Harmful Effects of a Change in Placement.

Marcus’s mother asserts that “the DOE has done
absolutely nothing to ensure that Marcus had a safe place to live
if he came back to Maui.”

Pet. Br. at 32.

She notes that she

works off-island every other week and so there is no one home to
care for Marcus.

Id.

However, Marcus’s mother fails to

establish that the DOE is required to provide 24-hour care under
these circumstances.

Without such an entitlement, the DOE’s

failure to place such care arrangements in Marcus’s IEP is not
24

error.
3.

Whether the Hearings Officer Erred in
Concluding that the Baldwin High School
Program Offers Better Access to Nondisabled
Peers Than Loveland Academy.

Marcus’s mother argues that the Hearings Officer
erroneously concluded that Baldwin High School’s “fully selfcontained CBI classroom exclusively with moderately-to-profoundly
disabled students with ED, located in an exclusive campus area,”
provided better access to nondisabled peers than Loveland.
Br. at 33.

This argument is unpersuasive.

Pet.

Marcus’s mother does

not attempt to demonstrate that Loveland Academy is equipped to
offer better access to nondisabled peers than Baldwin High
School, nor does she address the provision in Marcus’s 2008 IEP
for interaction with nondisabled peers in 50 percent of Marcus’s
extracurricular and extended school year activities.
4.

See PET 62.

Whether the Hearings Officer Relied Too
Heavily On the Testimony of Lisa Gifford and
Mary Auvil.

The court has reviewed Judge Ezra’s 2009 decision
involving Marcus and is aware of the credibility issues related
to Gifford that are raised by that order.

See Marcus I.,

2009

WL 3378589, at *8-*9 (stating that DOE officials, including
Gifford, were not forthright with the prior Hearings Officer in
explaining that they had received additional information
regarding Loveland Academy).

The court is not aware of

credibility problems specifically attributed to Auvil.
25

Nevertheless, the court concludes that Marcus’s mother has not
demonstrated that the Hearings Officer relied improperly on
testimony by either Gifford or Auvil.

The Hearings Officer cited

Gifford’s testimony that Marcus had regressed at Loveland
Academy, AR at 98-99, but ultimately disagreed.

Instead, based

on the testimony of Marcus’s teachers at Loveland, the Hearings
Officer determined that Marcus was making progress at Loveland
Academy and that Loveland Academy constituted an appropriate
placement for Marcus.

See AR at 109-11.

Marcus’s mother

disputes that Marcus’s father ever recommended the Texas program
for Marcus, then fails to explain how this is relevant to any
issue currently before the court.

See Pet. Br. at 33-34.

Marcus’s mother’s claim of error on this basis is unsupported.
5.

Whether the Hearings Officer Erred by Failing
to Rule on Marcus’s Mother’s Right to
Reimbursement for Nonmedical Housing
Expenses.

Marcus’s mother asserts, in cursory fashion, that the
DOE is liable for housing expenses under 34 C.F.R. § 300.104,
regardless of whether the May 2008 and May 2009 IEPs provided
Marcus with a FAPE.

Pet. Br. at 34-35 (arguing that

“reimbursement was a separate issue and completely independent of
the placement issue”).

Marcus’s mother also argues that the

Loveland Therapeutic Living Program, which is now fully licensed,
“is appropriate for Marcus.”

Pet. Br. at 35-36.

The court is not persuaded that the Hearings Officer
26

erred in failing to award reimbursement for a residential program
in light of the Hearings Officer’s findings that the IEPs offered
Marcus a FAPE.

Under 34 C.F.R. § 300.104, residential placement

is free to parents “[i]f placement in a public or private
residential program is necessary to provide special education and
related services to a child with a disability.”

As the DOE

notes, neither IEP provided for residential placement.
at 26; see Pet. Exh. 2-3 (IEPs).

Resp. Br.

Because the Hearings Officer

concluded that the IEPs, as drafted, adequately provided Marcus a
FAPE, see AR at 111, the Hearings Officer necessarily concluded
that residential placement was not necessary to Marcus’s
education.

As Marcus’s mother does not demonstrate to this court

the necessity of residential placement, the court rejects her
claim for payment for a residential placement at this time.

If,

on remand, the Hearings Officer determines that Baldwin High
School could not have fulfilled Marcus’s May 2009 IEP, the
Hearings Officer may choose to reconsider the appropriateness of
a residential placement for Marcus.
6.

Whether Five Hours of Visitation is
Inadequate or Unreasonable.

Marcus’s mother asserts that the DOE authorized only
five hours of family visitation for Marcus to visit his family on
Maui, but that it takes nearly five hours to transport Marcus to
Maui.

Pet. Br. at 36.

She further asserts that “[i]t is

reasonable that visitation for overnight visits should require 24
27

hours of authorized support, and for daily visits should require
a minimum of 12 to 15 hours.”

Id.

Therefore, she argues, the

DOE should reimburse Marcus’s mother for all unpaid invoices for
reasonable family visits.

Id.

The court is unable to agree with

Marcus’s mother that any error has been committed because this
argument is devoid of citations to the factual record that
support any of the above assertions.
7.

Whether the DOE Discriminated Against Marcus
Because of His Disability.

In addition to the claims discussed above, Marcus’s
mother asserts on page 3 of her opening brief that the DOE
willfully and wrongfully engaged in
discriminatory actions in failing to provide
school transportation, willfully failing to
provide parental visitation in violation of
hearing Officer’s orders, using the IEP
process to harass the Plaintiff and to deny
services, knowingly using misleading
testimony to secure administrative and
judicial decisions, and intentionally failing
to provide the nonmedical room and board
secured by federal law pursuant to 34 C.F.R.
§ 300.104 and others, in violation of Section
504 of the Rehabilitation Act.
The brief does not contain any additional argument regarding
alleged discrimination.

This argument, without any factual or

legal support, constitutes no more than a bare assertion of
error, and the court rules that, by failing to support it,
Marcus’s mother has in essence waived it before this court.
Te-Moak Tribe of W. Shoshone of Nev., 608 F.3d at 614 n.23;
Entm’t Res. Group, Inc., 122 F.3d at 1217; Local Rule 7.6.
28

See

VI.

CONCLUSION.
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

29

a FAPE for the 2008-09 school year.
If, following remand, an appeal of the Hearings
Officer’s new ruling is appealed to this federal court, the court
directs the appealing party to inform the Clerk of Court that the
appeal is related to the present case and so should be assigned
to the same judge.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 9, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Marcus I. v. Department of Education; Civil No. 10-00381 SOM/BMK; ORDER PARTIALLY
VACATING AND REMANDING THE HEARINGS OFFICER’S JUNE 9, 2010, DECISION

30