P.-K. et al v. Department of Education, State of Hawai'i

Filing 187

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATI NG COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS re 172 ; 173 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/22/2014. "The parties are ordered to work with Magistrate Judge Kevin S.C. Chang concerning the following : 1) Determination of Class Members: as soon as practicable, but in no event later than September 22, 2014, the DOE must provide Plaintiffs' counsel with the name of every potential class member, accompanied by his or her last-known cont act information. The DOE must include the names and last-known contact information of all individuals who might have been affected by the DOE's "age out" calculation, including individuals that the DOE concludes may have opt ed not to receive services, such as drop outs and those with employment. The DOE may provide names by grouping similarly situated individuals. Magistrate Judge Chang will settle all disputes concerning the identification of class members ; < BR> 2) Consideration of the DOE's ability to provide compensatory education to class members; 3) Identification of private service providers likely to be needed to provide compensatory education to class members and likely to be agreed to b y the parties; and 4) Consideration of prompt class notification and of further class certification issues, with any modification of the existing class certification to be sought by motion(s) filed no later than October 31, 2014. " "The parties are directed to file status reports on the above matters by September 30, 2014." (emt, )CERTIFICATE 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
R.P.-K, through his parent,
C.K., et al.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 10-436 SOM/KSC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR AWARD OF
COMPENSATORY EDUCATION AND
APPOINTMENT OF SPECIAL
MASTER; ORDER DENYING
DEFENDANT’S MOTION FOR THE
COURT TO DETERMINE THE
APPROPRIATE FORUM AND PROCESS
FOR EVALUATING COMPENSATORY
EDUCATION CLAIMS OF CLASS
MEMBERS

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR
AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL
MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO
DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING
COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS
This case, originally assigned to the Honorable David
Alan Ezra, concerns whether the State of Hawaii Department of
Education (“DOE”) wrongfully denied services under the
Individuals with Disabilities Education Act (“IDEA”) to
individuals that the DOE viewed as having “aged out” of being
eligible to receive services.
On March 15, 2011, Judge Ezra granted a motion to
certify a class in this case.

See ECF No. 31.

In the same order

he dismissed some of the purported class representatives.

Id.

Judge Ezra subsequently ruled that the DOE was not
required to provide services under the IDEA to class members.
See ECF No. 123.
125.

Plaintiffs appealed that decision.

See ECF No.

In an order filed on August 28, 2013, the Ninth Circuit
reversed Judge Ezra’s decision in part, ruling that the DOE’s
reliance on a Hawaii statute to deny services under the IDEA was
improper, and that individuals covered by the IDEA had not “aged
out” at the age calculated by the DOE.

See ECF No. 134.

On remand, the case was assigned to this judge because
Judge Ezra was residing in another district.

Before the court

are what are essentially cross-motions concerning how the Ninth
Circuit’s decision should be implemented.
In an IDEA case, a court has the power to “grant such
relief as the court determines is appropriate.”
§ 1415(i)(2)(C).

20 U.S.C.

The Ninth Circuit has stated that, when a child

is denied the Free Appropriate Public Education (“FAPE”)
contemplated by the IDEA, a court may provide additional services
to “make up for lost time, as it may be a rare case when
compensatory education is not appropriate to remedy an IDEA
violation.”

R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631

F.3d 1117, 1125-26 (9th Cir. 2011).
Given the Ninth Circuit’s determination that the DOE
denied a FAPE to a class of individuals by determining that they
had “aged out” when in actuality they remained eligible for
services, this court now determines that the members of the class
should receive compensatory services to make up for the services
missed as a result of that improper determination of

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ineligibility.

To the extent part of Plaintiff’s motion seeks

compensatory education, that portion is granted.
Both Plaintiffs and Defendant propose ways to address
the DOE’s IDEA violation.

While both sides raise the issue, both

leave a great deal to the court in terms of logistics.

For that

reason, to the extent Plaintiffs’ motion seeks an order
appointing a special master and the DOE’s motion seeks an order
leaving it to the DOE determine what services to provide to which
individuals, both motions are denied.

Instead, this court orders

certain initial determinations to be made before a final course
of action is selected.
The parties are ordered to work with Magistrate Judge
Kevin S.C. Chang concerning the following:
1)

Determination of Class Members: as soon as

practicable, but in no event later than September 22, 2014, the
DOE must provide Plaintiffs’ counsel with the name of every
potential class member, accompanied by his or her last-known
contact information.

The DOE must include the names and last-

known contact information of all individuals who might have been
affected by the DOE’s “age out” calculation, including
individuals that the DOE concludes may have opted not to receive
services, such as drop outs and those with employment.

The DOE

may provide names by grouping similarly situated individuals.

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Magistrate Judge Chang will settle all disputes concerning the
identification of class members;
2)

Consideration of the DOE’s ability to provide

compensatory education to class members;
3)

Identification of private service providers likely

to be needed to provide compensatory education to class members
and likely to be agreed to by the parties; and
4)

Consideration of prompt class notification and of

further class certification issues, with any modification of the
existing class certification to be sought by motion(s) filed no
later than October 31, 2014.
The parties are directed to file status reports on the
above matters by September 30, 2014.
Once these initial matters are addressed, there will,
of course, need to be further decisions on what procedure to
follow to provide compensatory education to class members.

This

may ultimately mean that the DOE must propose a compensatory
education package for every class member who desires one, or that
a special master should be appointed to oversee that process.
this time, the court rules only that it is appropriate to

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At

determine the scope of the class as well as the services that may
be available to compensate class members for the DOE’s violation
of the IDEA.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 22, 2014.

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

R.P.-K, et al. v. Dep’t of Educ., State of Hawaii, Civ. No. 10-00436 SOM/KSC; ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY
EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE
COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY
EDUCATION CLAIMS OF CLASS MEMBERS

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