Y. et al v. Department of Education, State of Hawai'i et al

Filing 43

ORDER VACATING THE JULY 6, 2010, ORDER OF THE OFFICE OF ADMINISTRATIVE HEARINGS AND REMANDING FOR FURTHER PROCEEDINGS. Signed by JUDGE ALAN C KAY on 6/6/11. (eps)CERTIFICATE OF SERVICEParticipants registered to rece ive 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

AILEEN Y., in her capacity as
parent and legal guardian of
THE STUDENT D.,
Plaintiff,
vs.
DEPARTMENT OF EDUCATION, STATE
OF HAWAI#I
Defendant.

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Civ. No. 10-00454 ACK-RLP

ORDER VACATING THE JULY 6, 2010, ORDER OF THE OFFICE OF
ADMINISTRATIVE HEARINGS AND REMANDING FOR FURTHER PROCEEDINGS
I. PROCEDURAL AND FACTUAL BACKGROUND1/
D.Y. (“Student”) was born on April 6, 1988.
Aff. ¶ 2.)

(Aileen Y.

He turned twenty on April 6, 2008, in the middle of

the 2007–08 school year.

(Id. ¶ 4.)

He has Prader-Willi

Syndrome, and received special education services from Defendant
under the Individuals with Disabilities Education Act until the
end of the extended 2007–08 school year.

(Id. ¶¶ 6, 25.)

At an IEP team meeting on April 8, 2008, Student’s
mother, Plaintiff Aileen Y., requested that Defendant provide
Student with special education services under the IDEA until his
1/

The facts as recited in this order are for the purpose of
disposing of this review of the administrative hearings officer’s
decision. They are not to be construed as findings of fact that
the parties may rely on in future proceedings.
-1-

twenty-second birthday; that is, until he was no longer “between
the ages of 3 and 21, inclusive.”

20 U.S.C. § 1412(a)(1)(A).

Defendant refused to provide continued services on the basis that
Student had aged out of eligibility for special education.
(Admin. R. Ex. 5 at 34, 38.)
On July 31, 2009, Plaintiff requested another IEP team
meeting in light of the decision in B.T. ex rel. Mary T. v.
Department of Education, State of Hawaii, 637 F. Supp. 2d 856 (D.
Haw. 2009).

(Aileen Y. Aff. Ex. B.)

Defendant denied that

request in a letter dated August 4, 2009.

(Id. Ex. C.)

On April 8, 2010, at 4:48 p.m., via fax, Plaintiff
filed a request for a due process hearing concerning both the
denial of continued services at the April 2008 IEP team meeting
and the denial of an additional IEP team meeting in 2009.
(Admin. R. Ex. 1 at 2.)

This action arises out of the

administrative hearings officer’s dismissal of that request and
the officer’s alternative grant of summary judgment in favor of
Defendant.

(Admin. Decision at 6.)

The dismissal was based on a

finding that the request for a due process hearing was untimely.
(Id.)

The grant of summary judgment was based on a finding that

Defendant had not applied an age-out rule, standing alone, to
deny continued special education services to Student.

(Id.)

Because of the procedural posture of this case, the
factual record is relatively undeveloped.

-2-

Yet the record before

the administrative hearings officer was sufficient to preclude
either dismissal or summary judgment in Defendant’s favor.

The

Court will therefore vacate the officer’s decision and remand for
additional proceedings.
II. STANDARD
In evaluating an appeal of an administrative decision
under the IDEA, a court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence
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.”

20 U.S.C. § 1415(i)(2)(C).2/

The statutory requirement “that a reviewing court base
its decision on the ‘preponderance of the evidence’ is by no
means an invitation to the courts to substitute their own notions
of sound educational policy for those of the school authorities
which they review.”
(1982).

Bd. of Educ. v. Rowley, 458 U.S. 176, 206

Rather, “due weight” must be given to the findings in

the administrative proceedings.

Id.

The amount of deference given to administrative
findings in this context is a matter of judicial discretion.

See

Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891

2/

An amendment to the IDEA, effective July 1, 2005,
affected the subsection number at which this provision appears in
the statute but did not affect the text of the provision.
Compare 20 U.S.C. § 1415(i)(2)(B) (in effect prior to July 1,
2005) with 20 U.S.C. § 1415(i)(2)(C) (effective July 1, 2005).
-3-

(9th Cir. 1995) (quoting Gregory K. v. Longview Sch. Dist., 811
F.2d 1307, 1311 (9th Cir. 1987)).

A court must “consider the

findings ‘carefully and endeavor to respond to the hearing
officer’s resolution of each material issue,’ but ‘is free to
accept or reject the findings in part or in whole.’”
(quoting Gregory K., 811 F.2d at 1311).

Id.

“When exercising its

discretion to determine what weight to give the hearing officer’s
findings,” a court may “examine the thoroughness of those
findings” and accord greater deference when they are “‘thorough
and careful.’”

Id. (quoting Union Sch. Dist. v. Smith, 15 F.3d

1519, 1524 (9th Cir. 1994)).
A court’s inquiry in reviewing administrative decisions
under the IDEA is twofold:

“First, has the State complied with

the procedures set forth in the Act?

And second, is the

individualized educational program developed through the Act’s
procedures reasonably calculated to enable the child to receive
educational benefits?

If these requirements are met, the State

has complied with the obligations imposed by Congress and the
courts can require no more.”

Rowley, 458 U.S. at 206-207

(footnotes omitted); see also Smith, 15 F.3d at 1524.
III. DISCUSSION
A.

Dismissal of the Request for a Due Process Hearing
The administrative hearings officer determined that

April 8, 2010, was the last day on which the request could have
-4-

been timely filed.

The request did arrive via fax on that day,

but not until 4:48 p.m., eighteen minutes after the close of
business.

(Admin R. Ex. 1 at 2.)

Because the fax arrived after

the close of business, the officer deemed the request to have
been untimely filed, and accordingly dismissed the request.
(Admin. Decision at 4.)
The dismissal was incorrect for three reasons.

First,

nothing in the statute of limitations indicates that a request
filed via fax must arrive before the close of business to be
timely.

Second, it is not clear from the record that Plaintiff

knew or should have known of the denial of continued special
education by April 8, 2008.

Third, the request for a due process

hearing concerned two separate actions.

One of them occurred in

2009, well within the two-year limitations period.
1. When the Request Was Filed
First, the statute of limitations indicates that a
request for a due process hearing must be filed within two years
of the challenged action, but it does not indicate a time of day
by which a request must be filed.

See 20 U.S.C. § 1415(f)(3)(C)

(“A parent or agency shall request an impartial due process
hearing within 2 years of the date the parent or agency knew or
should have known about the alleged action that forms the basis
of the complaint.”); see also Haw. Code R. § 8-60-65(f) (same).
Nor does a time-of-day limitation appear in the Procedural

-5-

Safeguards Notice that Defendant provided to Plaintiff.
R. Ex. 12 at 144.)

(Admin.

The faxed request arrived on April 8, 2010,

exactly two years after the April 2008 IEP team meeting.
According to the terms of the statute and the materials that
Defendant provided to Plaintiff, the request was timely, even
assuming that Plaintiff knew or should have known of the denial
of continued special education services on April 8, 2008.
In its efforts to add a new requirement to the plain
text of the statute of limitations, Defendant relies on the
administrative rules for the Department of Commerce and Consumer
Affairs (the agency that contains the Office of Administrative
Hearings).

According to those rules, which are not specific to

requests for due process hearings, “[t]he hours of a day during
which documents will be accepted for filing by the authority or
hearings officer shall be those specified in section 80-1, HRS.”
Haw. Code R. § 16-201-14.
At one time, the specified section of the Hawai#i
Revised Statutes set business hours as 7:45 a.m. until 4:30 p.m.
But that section was repealed effective July 1, 2002, as
Defendant acknowledges.

See 2000 Haw. Sess. Laws 914, 916.

The

current version of Hawai#i’s office-hours statute does not
contain any express times for business operations, but rather
leaves the determination of the state’s business hours to the
Governor.

See Haw. Rev. Stat. § 78-1.6 (“Offices of the State

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and counties shall be open for the transaction of public business
as determined by the chief executive.”).3/
Defendant has not produced evidence of the Governor’s
determination.

Yet even assuming that the Governor has

determined that State offices shall be closed each day at 4:30
p.m., that determination would not make the request for a due
process hearing untimely.

The statute concerns the times of day

that offices will be staffed.

As evidenced by this case, an

office need not be staffed to receive a fax.

The Court will not

read a time-of-day limitation into the statute of limitations
where neither Congress nor Defendant—in its own regulations
concerning the IDEA—has included one.4/
2. When Plaintiff Knew of the Denial
Second, the Court rejects the administrative hearings
officer’s finding that Plaintiff knew or should have known about
the denial of continued special education services by April 8,
2008.5/

(Admin. Decision at 4.)

The statute of limitations runs

3/

Both parties assert that section 78-1.6 replaced section
80-1 upon the latter section’s repeal. The statutes and session
laws themselves do not mention this replacement, but the Court
assumes for the sake of argument that it occurred.
4/

Because of the resolution
not address Plaintiff’s position
procedure and the local rules of
deadline for filing requests for

of this issue, the Court need
that the federal rules of civil
this district court govern the
due process hearings.

5/

In its supplemental brief in this action, Defendant
claimed that an IEP team meeting that occurred in March 2008 is
(continued...)
-7-

from when the parent “knew or should have known” of the
challenged action.

See 20 U.S.C. § 1415(f)(3)(C).

In this case,

the IEP and the Prior Written Notice of Department Action both
suggest that at the conclusion of the IEP team meeting on April
8, 2008, the final decision to deny services had not yet been
made.

Both documents indicate that the mother requested an

additional year of services based on the IDEA, and that
Defendant’s representatives on the IEP team promised to contact
the department and check.
Specifically, the April IEP contains the following
note: “[Student’s] mother requested . . . an additional school
year of service from the DOE in order to give [Student] the
opportunity for a smoother transition from high school to his
post-high school program.

Administrator is going to ask DOE

District office about this request.

The request for services for

the 2008-2009 school year was rejected.”

5/

(Admin. R. Ex. 5 at

(...continued)
the starting point of the limitations period. The March meeting
was the meeting at which the school first indicated that it would
cease providing special education services to Student at the end
of the extended school year. But Plaintiff’s argument that
Student was entitled under the IDEA to education through age
twenty-one does not appear to have been raised until April, so
the April IEP, not the March IEP, is the challenged action.
In any event, at the April IEP team meeting, Defendant’s
representatives on the IEP team stated that they would have to
check with the district concerning Plaintiff’s request for
additional service under the IDEA. (Admin. R. Ex. 5 at 34, 38.)
This statement superseded any final decision allegedly made at
the March meeting.
-8-

34.)

The prior written notice contains a similar statement:

“Extending services into the 2008-2009 school year was proposed
by mother.

Administrator was to clarify this proposed action

with the school district.

The proposal has been denied.

only allows the DOE to provide services up to age 20.”

The law

(Id. at

38.)6/
While both of these documents contain the ultimate
disposition of the query to the district, it appears that the
denial had not yet been made by the end of the April 2008 IEP
team meeting.
conclusion.

Plaintiff submitted an affidavit supporting that

(Aileen Y. Aff. ¶¶ 21 (“When I left the April 8,

2008 IEP team meeting I believed that no final decision . . . had
been definitively made.”).)

She also stated that she did not

know of the decision until several days later.

(Id. ¶ 23.)

Of course, if Plaintiff did not know (and should not
have known) of the outcome until even one day after the IEP team
meeting, the request for a due process hearing was timely.

This

is the case even if requests for due process hearings must arrive
by the close of a business day to be timely.

6/

Particularly on a

The documents are both dated April 8, 2008. It is
unclear whether Defendant actually contacted the school district
and completed the documents on the same day as the meeting or if
the documents simply bear the date on which the meeting was held.
At the hearing, Defendant’s counsel stated that he did not know
when the district’s determination was obtained.
-9-

motion to dismiss, Plaintiff’s position should have been
credited.

Dismissal was therefore erroneous.
3. When the Second Challenged Action Occurred
Finally, dismissing the entirety of the request for a

due process hearing was erroneous because the request concerned
two challenged actions by Defendant, one of which was well within
two years of April 8, 2010.

The first subject of the request was

the previously discussed April 2008 IEP.

(Admin. R. Ex. 1 at 2.)

The second was Defendant’s refusal to reconvene an IEP team
meeting in 2009 to consider a new judicial interpretation of
Hawai#i’s implementation of the IDEA.

(Id.)

Even if the request

was untimely as to the first challenged action, it was timely as
to the second.
Plaintiff’s request for a due process hearing is based
in part on a letter that Plaintiff sent in July 2009, requesting
an additional IEP team meeting in light of the decision in B.T.
ex rel. Mary T. v. Department of Education, State of Hawaii, 637
F. Supp. 2d 856 (D. Haw. 2009).

The B.T. court held that

Hawai#i’s age-out policy for special education was inconsistent
with the IDEA if used as the sole basis for denying continued
special education.7/

See id. at 866; (see also Aileen Y. Aff.

7/

The B.T. case, which should have precluded the
administrative hearings officer’s alternative ruling concerning
summary judgment, will be discussed in more detail in the next
section.
-10-

Ex. B.).

Despite B.T.’s apparent applicability, the department

refused to convene a new IEP team meeting, asserting in an August
2009 letter in response that it had decided not to apply the B.T.
ruling to any other student.

(Id. Ex. C.)

The request for a due process hearing was submitted
well within two years of the 2009 letters.

So dismissing the

request as untimely was erroneous, at least as far as the request
concerned those letters and B.T.’s applicability to Student’s
special education.
B.

Summary Judgment in Favor of Defendant
In an alternative holding, the administrative hearings

officer granted summary judgment to Defendant.

The officer noted

that Student continued to receive special education from April 6,
2008, his twentieth birthday, until the end of the extended
school year on July 18, 2008.

(Admin. Decision at 5.)

The

officer concluded that “[a]s the DOE continued to provide Student
services past his 20th birthday, it can not be said that the DOE
is applying a per se rule to cut off benefits to special
education students at age 20.”

(Id. at 5–6.)

The administrative

hearings officer’s analysis is flawed, and the Court accords it
no deference.
1. The B.T. Case
In the administrative process, Defendant consistently
gave only one reason for denying additional education to Student:
-11-

that he had aged out of the program.

(Admin R. Ex. 3 at 12

(“[Student] had aged out of Special Education for Chapter 56 in
school year 2007-2008.”); id. Ex. 5 at 20 (“The law at that time
and currently allows the Student to receive services until his
twentieth birthday.

In this case, the Student’s services were

extended past his twentieth birthday and through ESY 2008.”); id.
at 38 (“The law only allows the DOE to provide services up to age
twenty.”).)
The given reason for denial makes this case very
similar to another case that has a lengthy history in this
district, B.T. ex rel. Mary T. v. Department of Education, State
of Hawai#i, Civ. Nos. 08-00356 DAE-BMK & 09-00059 DAE-BMK.8/

B.T.

was born on July 4, 1988, so his birthday, like Student’s, came
before the end of the extended school year.9/

See B.T. ex rel.

Mary T. v. Dep’t of Educ., State of Hawaii (B.T. I), 637 F. Supp.
2d 856, 859 (D. Haw. 2009).

Just as in this case, the Department

of Education offered B.T. services through the end of the
extended school year after his twentieth birthday, that is, from

8/

The B.T. parties were more recently before a court in
this district in Civ. No. 10-00456 SOM-RLP, and had previously
been before another court in this district in Civ. No. 05-00497
HG-LEK and Civ. No. 05-00772 HG-BMK.
9/

It is of no moment that B.T.’s birthday occurred during
the extended school year and Student’s occurred during the
ordinary school year. In both cases, Defendant followed its
policy of allowing students to continue until the end of the
extended school year following their twentieth birthdays.
-12-

July 4, 2008 through July 28, 2008.

See id. at 860.

And just as

in this case, the Department informed B.T.’s mother that B.T.
would not receive services the following school year because his
twentieth birthday had passed before the beginning of that school
year.

See id.

Finally, just as in this case, the only reason

given for the termination of services for B.T. was that he had
“age[d] out” of eligibility.

Id. at 859.

One of the main issues in B.T. was whether Hawai#i’s
age limit for special education was consistent with the IDEA,
that is, whether there was any State law or practice in Hawai#i
that was inconsistent with providing special education to
students who were twenty-one.10/

The B.T. court determined that

there was no law or practice in Hawai#i to preclude students

10/

As a condition for federal funding for special education,
the IDEA requires in general that a “free appropriate public
education is available to all children with disabilities residing
in the State between the ages of 3 and 21, inclusive.” 20 U.S.C.
§ 1412(a)(1)(A). But that requirement is not absolute:
The obligation to make a free appropriate public
education available to all children with disabilities
does not apply with respect to children . . . aged 3
through 5 and 18 through 21 in a State to the extent
that its application to those children would be
inconsistent with State law or practice, or the order
of any court, respecting the provision of public
education to children in those age ranges.
Id. § 1412(a)(1)(B)(i). Thus if a state by law, practice, or
court order provides public education to students between the
ages of three and five or between the ages of eighteen and
twenty-one, it must also provide a free appropriate public
education to children of those ages with disabilities.
-13-

without disabilities from beginning a school year at age twenty,
and therefore concluded that Hawai#i’s age-out policy, standing
alone, could not justify the denial of special education
services.11/

See B.T. I, 637 F. Supp. 2d at 866 (“[B]ecause

Hawaii schools provide education through 21 years old for general
education students, it must provide a FAPE for [special education
students through 21 years old] when the IEP so recommends.”);12/
B.T. ex rel. Mary T. v. Dep’t of Educ., State of Hawaii (B.T.
II), Civ. Nos. 08-00356 DAE-BMK & 09-00059 DAE-BMK, 2009 WL
4884447, at *9 (D. Haw. Dec. 17, 2009) (“Defendant is enjoined
from denying special education services based solely on a

11/

The age-out policy is set forth in Hawai#i’s
administrative rules, which provide that to be eligible for
special education, a student must be “[u]nder twenty on the first
instructional day of the official school year calendar set by the
department.” Haw. Code R. § 8-60-38(d)(2). A student’s
eligibility does not terminate immediately upon the student’s
twentieth birthday. Rather, a student who turns twenty during
the school year retains eligibility “for the full school year,
including extended school year . . . .” Id. (emphasis added).
Section 8-60-38 replaced section 8-56-15 when chapter 56 was
repealed on November 23, 2009. The prior version was in effect
when B.T. was decided, but the new rule is nearly identical to
the old one. See Haw. Code R. § 8-56-15(3)(B) (2008).
12/

B.T. I refers to a December 2008 order concerning an
earlier motion for summary judgment in that case. See 637 F.
Supp. 2d at 862 (“This Court has already addressed the question
of State law for the provision of FAPE to students 18 to 21 years
old . . . . [T]his Court found that there is no consistent age
restriction for general education students under Hawaii law and
so the exception provided in the IDEA does not apply.”). The
December 2008 order is available as ECF No. 54 on the docket for
Civ. No. 08-00356 DAE-BMK.
-14-

student’s attainment of age 20.”);13/ see also B.T. ex rel. Mary
T. v. Dep’t of Educ., State of Hawaii (B.T. III), 676 F. Supp. 2d
982, 986 (D. Haw. 2009) (“Defendant may not rely on HAR § 8-5615(3)(B) to limit B.T.’s services because under State statute and
practice, general education students are allowed to continue
education beyond age 20 under certain circumstances.

The State

of Hawaii must comply with the IDEA’s provision of special
education through age 21 if the IEP team determines that such
education is warranted.”).
2. Applicability of B.T.
Although the parties did not address the issue, the
Court must determine whether B.T. applies to this case given a
new statute that became effective on July 1, 2010.

13/

The B.T. court was forced to make the same ruling
repeatedly because the Department of Education continued to press
the same argument throughout the proceedings. See B.T. II, 2009
WL 4884447, at *6 (“Defendant has not submitted new facts or
arguments in its motion for summary judgment, or in its
opposition to Plaintiff’s motion, to contradict this Court’s
understanding of the statutes and rules. Instead, Defendant
relies on the same arguments and evidence twice rejected by this
Court in its prior orders.”)
The Department has continued its stance in this case by
refusing to convene another IEP team meeting for Student in light
of B.T. (See Aileen Y. Aff. Ex. C (“The Department of
Education’s stance at this point in time is that the [B.T.] case
only applies to the student BT; therefore, it will not be
applying Judge Ezra’s order to any other student.”).)
The Court rejects Defendant’s position, which Defendant
continued to press at the hearing, that B.T.’s holding was
limited to the student in that case. B.T.’s holding is one of
general applicability and should have been applied by the
administrative hearings officer.
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When B.T. was decided, students eighteen years or older
were statutorily prohibited from entering tenth grade.
I, 637 F. Supp. 2d at 863.

See B.T.

There were no express age limits in

the statute for entering eleventh or twelfth grade, although a
section of the School Code stated that “a student will be
‘overage’ for the 12th grade at 20 years old.”

See id.

Also,

principals had express statutory discretion to enroll students
who were over-age (according to the age limits), provided that
those students did not require special education.

See id.

But

principals lacked express discretion to enroll over-age students
who did require special education.

See id.

Hawai#i has enacted a new eligibility statute for
public education in response to B.T.

(In the words of the Senate

Committee on Education and Housing, “Your Committee finds that
this measure is an attempt to address Judge Ezra’s ruling by
providing a consistent age limit for both general education and
special education to students to be admitted to Hawaii’s public
schools.”

Stand. Com. Rep. No. 2635, at 2.)

The new statute

provides:
No person who is twenty years of age or over
on the first instructional day of the school
year shall be eligible to attend a public
school. If a person reaches twenty years of
age after the first instructional day of the
school year, the person shall be eligible to
attend public school for the full school
year.

-16-

Haw. Rev. Stat. § 302A-1134(c).

In other words, the state

responded to B.T. by preventing all students from beginning a
school year at age twenty rather than by allowing students with
disabilities to remain in school through age twenty-one.
The new statute is the subject of a pending class
action challenging its validity.

See R.P.-K. ex rel. C.K. v.

Dep’t of Educ., State of Hawai#i, 272 F.R.D. 541, 543 (D. Haw.
2011) (granting class certification).

The validity of the new

statute is not before the Court in this case, because the new
statute did not take effect until July 1, 2010, well after the
denials at issue.

See 2010 Haw. Sess. Laws 377; see also C.B. ex

rel. N.B. v. Dep’t of Educ., State of Hawai#i, Civ. No. 10-00317
DAE-LEK, 2010 WL 5389785, at *4 n.3 (D. Haw. Dec. 22, 2010)
(noting the Department of Education’s concession that the new
statute did not apply retroactively where “it was not effective
until July 1, 2010, two months after the Hearing Decision and one
year after C.B.’s IEP meeting”).

The Court will not apply the

new statute retroactively.
This case differs slightly from C.B. in that the
administrative hearings officer’s decision was issued on July 6,
2010, five days after the new statute became effective.

But both

denials at issue in this case took place long before the new
statute became effective.

Retroactive application of the new

version of the statute would conflict with B.T. and other

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decisions of courts in this district, and would strip Plaintiff
of rights that existed before the new statute went into effect.
Also, Defendant did not even alert the Court to the new statute’s
existence, much less argue that it should apply retroactively.
Finally, neither the statute nor its legislative history contains
expressed or obviously intended retroactive effect.

The Court

therefore will not apply the new version of section 302A-1134(c)
retroactively.

See Haw. Rev. Stat. § 1-3 (“No law has any

retrospective operation, unless otherwise expressed or obviously
intended.”); see also Hawai#i Med. Ass’n v. Hawai#i Med. Serv.
Ass’n, Inc., 148 P.3d 1179, 1209 (Haw. 2006) (“Neither the
language of the statute itself nor the legislative history of the
amendment give any expressed indication that the amendment should
be applied retroactively.”); Landgraf v. USI Film Prods., 511
U.S. 244, 270 (“Since the early days of this Court, we have
declined to give retroactive effect to statutes burdening private
rights unless Congress had made clear its intent.”).

The Court

will analyze the case under the standard set forth by B.T.
3. Analysis under B.T.
Because Student was allowed to stay in school after his
twentieth birthday through the end of the extended school year,
the administrative hearings officer concluded that no per se ageout rule had been applied.

(Admin. Decision at 5–6 (“As the DOE

continued to provide Student services past his 20th birthday, it

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can not be said that the DOE is applying a per se rule to cut off
benefits to special education students at age 20.”).)

But B.T.

was also allowed to stay in school after his twentieth birthday
until the end of the extended school year.

Hawai#i’s age-out

policy specifically allows for students to remain in school until
the end of the extended school year following their twentieth
birthdays.

Haw. Code R. § 8-60-38(d)(2).

Defendant’s actions in

both this case and in B.T. were straightforward applications of
the age-out policy.
B.T. forbids using the age-out policy that was in place
until 2010 as the sole basis for denying special education.

From

the record that was before the administrative hearings officer,
that appears to be exactly what happened in this case.

The

administrative record contains no rationale other than Student’s
age for the denial of continued special education.

The officer

therefore should have denied the department’s motion for summary
judgment.14/
4. Defendant’s New Evidence
Defendant submitted a declaration from the vice
principal of Student’s high school claiming that the IEP team had
concluded that Student had reached a plateau and would not
benefit from additional special education services.

14/

(Richard

Plaintiff does not appear to have moved for summary
judgment in the agency, so whether summary judgment should have
been granted to Plaintiff is not before the Court.
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Reidy Decl. ¶¶ 11–17.)

This declaration, containing an

alternative rationale for denying continued services, is not a
sufficient basis for summary judgment in Defendant’s favor.15/
Plaintiff maintains that Defendant’s only reason for denying
another year of education was Student’s age, and the record amply
supports that position.

In fact, the administrative hearings

officer quoted the portion of the prior written notice that
stated that “[Student] has been successful in the fully selfcontained classroom and continues to require the services that he
has been receiving.”

(Admin. Decision at 2 (emphasis added)

(quoting Admin. R. Ex. 5 at 38).)

There is nothing in the

officer’s decision to indicate why Student would suddenly no
longer require services as of the end of the extended school
year.
At best, from Defendant’s perspective, the evidence
that Student had reached a plateau tends to contradict
Plaintiff’s argument that Student’s age was the sole rationale
for denying continued services.

The conflicting arguments

present genuine issues of material fact and preclude summary
judgment.

15/

Plaintiff argues that the Court should not consider
Defendant’s position because it was not presented to the
administrative hearings officer. But the Court is required to
“hear additional evidence at the request of a party.” 20 U.S.C.
§ 1415(i)(2)(C).
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IV. CONCLUSION
For the foregoing reasons, the Court (1) VACATES the
Order of the Office of Administrative Hearings Granting
Respondent’s Motion to Dismiss Petitioners’ Request for an
Impartial Hearing, or in the Alternative, for Summary Judgment;
and (2) REMANDS for further proceedings consistent with this
order.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, June 6, 2011.

________________________________
Alan C. Kay
Sr. United States District Judge

Aileen Y. ex rel. D.Y. v. Dep’t of Educ., State of Hawai#i, Civ No. 10-00454
ACK-RLP: Order Vacating the July 6, 2010, Order of the Office of
Administrative Hearings and Remanding for Further Proceedings

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