T. v. Department of Education, State of Hawai'i

Filing 37

ORDER AFFIRMING IN PART AND REVERSING IN PART HEARING OFFICER'S DECISION; ORDER REMANDING LIMITED ISSUES TO HEARINGS OFFICER 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/11/11. ("Should any party file an appeal in this c ourt from the Hearing Officer's decision on remand, a new civil number shall be assigned to that appeal and the Clerk of Court shall assign the appeal to the judges currently assigned to the matter -- Judge Susan Oki Mollway and Magistrate Judge Richard L. Puglisi. The Clerk of Court is further ordered to keep copies of the Administrative Record on Appeal, Petitioner's and Respondent's exhibits, and transcripts until further ordered by this court or until notifie d by the parties that it is no longer necessary to keep those documents in this court, rather than in a long-term storage facility. The parties are therefore ordered to notify the court when those documents are no longer necessary (ie., when t he time to appeal the Hearing Officer's decision has run without an appeal being filed or when an appeal is taken to state court).") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive e lectronic 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 d ocket entry Modified on 5/11/2011 ~ A certified copy of this order and a certified copy of the docket shall be served by First Class Mail to the Office of Administrative Hearings at 335 Merchant Street, Ste 100, Honolulu, HI 96813 on May 12, 2011. (emt, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
B.T., by and through his
Mother, M.T.,

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

Civil No. 10-00456 SOM/RLP
ORDER AFFIRMING IN PART AND
REVERSING IN PART HEARING
OFFICER’S DECISION; ORDER
REMANDING LIMITED ISSUES TO
HEARING OFFICER

ORDER AFFIRMING IN PART AND REVERSING IN PART HEARING OFFICER’S
DECISION; ORDER REMANDING LIMITED ISSUES TO HEARING OFFICER
I.

INTRODUCTION.
This case involves a further appeal of a hearing

officer’s administrative decision regarding a student’s benefits
under the Individuals with Disabilities Education Act (“IDEA”).
Although this court affirms most of the hearing officer’s
decision, the court regrets that it cannot provide the parties
with a ruling that ends this case.

Instead, despite the already

lengthy history of this case, the court reluctantly remands this
case to a hearing officer to determine two narrow issues:
1) what, if any, specific goals contained in the 2007
Individualized Education Program (“IEP”) were not implemented or
not timely implemented? and 2) should compensatory education be
awarded to make up for any alleged failure to implement or timely
implement those goals?

Mother and Student are proceeding in this matter
without disclosing their names.

See ECF No. 5-2.

The court

therefore refers to them in this order only as Mother and
Student, and collectively refers to them as Plaintiffs.
Plaintiffs seek two years of compensatory education
because the State of Hawaii Department of Education (“DOE”)
allegedly delayed the implementation of Student’s 2007 IEP for
several months.

Plaintiffs say that, as a result, Student

regressed academically at a mainland school.

The court reverses

the Hearing Officer to the extent he determined that the DOE was
not responsible for any of the delay in implementing Student’s
2007 IEP, as the DOE was clearly responsible for some of the
delay given its refusal to allow Heartspring to implement the
2007 IEP.

The court remands to the Hearing Officer the issue of

how much delay was caused by that refusal.

Included in that

issue is the question of whether the DOE was responsible for
Heartspring’s failure to even know about the IEP’s contents until
late January 2008, when the DOE says it mailed the IEP to
Heartspring, or late February 2008, when Heartspring says it
found a copy of the IEP in Student’s suitcase.

The court notes

that the delay may have begun at the earliest in November 2007,
when the IEP became effective, and may have ended at the latest
in June 2008, when Mother says that Heartspring began
implementing the goals of the 2007 IEP.

2

On remand, the Hearing Officer shall determine what, if
any, goals contained in the 2007 IEP were delayed.

The Hearing

Officer shall also determine which, if any, goals were ignored
because Heartspring allegedly concentrated on Student’s life
skills.

The Hearing Officer shall then determine whether any

delay in implementing or failure to implement any of the goals
contained in the 2007 IEP denied Student a FAPE and what, if any,
compensatory education is therefore appropriate.

The court,

however, determines that Student is not entitled to compensatory
education relating to Student’s regression as of July 2010.
Finally, the court rules that the DOE need not
retroactively reimburse Plaintiffs for Student’s expenses at
Loveland Academy after he turned twenty-two years of age.
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
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’” (“FAPE”).

Board of Educ. of the

Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 180-

3

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 school 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, and tailor and implement an
individualized education program (“IEP”) appropriate for the
unique needs of the student.

20 U.S.C. § 1414; Rowley, 458 U.S.

at 181.
The IEP is prepared at a meeting between a qualified
representative of the local educational agency, the child’s
teacher, the child’s parents or guardian, and, when appropriate,
the child.

The IEP consists of a written document containing:
(i) A statement of the present levels of
educational performance [“PLEPS”] of the
child;

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(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; see also 20 U.S.C. § 1414(d).

Local or

regional educational agencies must review, and, when appropriate,
revise each child’s IEP at least annually.
§ 1414(d)(4).

20 U.S.C.

In addition, “[p]arental involvement is a central

feature of the IDEA.”

Hoeft, 967 F.2d at 1300.

“Parents

participate along with teachers and school district
representatives in the process of determining what constitutes a
‘free appropriate education’ for each disabled child.”

Id.

In addition to the IEP, the IDEA also requires written
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).

Violations of the IDEA may arise in two situations.
First, a school district, in creating and implementing an IEP,

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may run afoul of the IDEA’s procedural requirements.
U.S. at 205-06.

Rowley, 458

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, see Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir.
1999), but the district need not provide the student with a
“potential-maximizing education.”

JG v. Douglas County Sch.

Dist., 552 F.3d 786, 793 (9th Cir. 2008) (quoting Rowley, 458
U.S. at 201).
While the IDEA guarantees certain procedural safeguards
for children and parents, the Ninth Circuit has recognized that
not every procedural violation results in denial of a FAPE.

See

L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th
Cir. 2009) (“Procedural flaws in the IEP process do not always
amount to the denial of a FAPE.”).

Procedural flaws in the IEP

process only deny a child a FAPE when the flaws affect the
“substantive rights” of the parent or child.

Id.

Such

substantive rights include the loss of a child’s educational
opportunity or an infringement on the parents’ opportunity to
participate in the IEP process.

Id.

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When a public school fails to provide a FAPE, and the
parent establishes that placement at a private school is
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).

Additionally, courts have

discretion to award compensatory educational services when
appropriate.

See Park v. Anaheim Union High Sch. Dist., 464 F.3d

1025, 1033 (9th Cir. 2006).
III.

BACKGROUND
There is no dispute that Student has severe autism and

that he was entitled to services under the IDEA.

In May 2005,

Student began attending Heartspring School in Wichita, Kansas.
After IEP meetings on October 29, 2007, and November 6
and 16, 2007, a 2007 IEP was developed for Student.
2 at BT 40 to BT 71.

The 2007 IEP set various goals for Student.

See id. at BT 51 to BT 69.
6, 2007.

See Res. Ex.

Id. at BT 70.

Its projected start date was November

There is no dispute that the IEP’s goals

were not implemented by Heartspring on that date.

In fact, the

DOE did not mail the 2007 IEP to Heartspring until January 30,
2008.

See Res. Ex. 9 at BT 220.

The record does not clearly

reflect why it took more than two months to mail the 2007 IEP to
Heartspring.

The record also does not clearly establish why

Heartspring might not have received the IEP shortly after January
30, 2008.

7

On December 14, 2007, the DOE gave Mother a Prior
Written Notice of Department Action in which the DOE proposed to
transfer Student from Heartspring in Kansas to a “Residential
Facility/Adult Foster Home (with a Special School component)” on
Oahu, Hawaii.

See Res. Ex. 6 at BT 112.

On January 31, 2008, Mother requested a due process
hearing under the IDEA to challenge the DOE’s suggested transfer
of Student from Kansas to Hawaii.

See Request for Due Process

Hearing, Jan. 31, 2008, Resp. Ex. 9 at BT 261-62.

In addition to

challenging the appropriateness of transferring Student from
Heartspring in Kansas to Hawaii, Mother asserted that the 2007
IEP was “inadequate because it fails to provide that objectives
and goals will apply across all settings (i.e., residence,
school, community, etc.).”

Id. at BT 261.

Mother therefore did

not object to the implementation of the goals of the 2007 IEP.
See id.
On or about February 26, 2008, Kim Thomas of
Heartspring emailed Mother to say that Heartspring had just found
an IEP in Student’s suitcase upon Student’s return from having
received extended school year education at Loveland Academy in
Hawaii over the 2007-08 winter break.

Thomas asked Mother in

that email whether Mother agreed with any of the goals in the
IEP.

See Pet. Ex. 31 at page HDRC 00589.

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One day later, Mother

responded via email, “Yes, let’s move forward with the Goals of
the new IEP.”

Id.

In early April 2008, Mother contacted Heartspring,
asking whether it had been in touch with anyone at the DOE about
implementing the goals of the 2007 IEP.
00588.

See Pet. Ex. 31 at HDRC

On April 4, 2008, Heartspring responded via email that it

had been told by the DOE that, because Mother had not accepted
the 2007 IEP, it should not be implemented at all.

Pet. Ex. 31

at HDRC 00587; see also Reporter’s Transcript of Proceedings,
Nov. 20, 2008, at 80 (Mother testifying that Heartspring told her
that, because she had requested a due process hearing in January
2008 to challenge that transfer, Heartspring would not implement
the IEP until the DOE gave Heartspring permission to do so).
On April 18, 2008, the DOE wrote to Mother, asking her
to identify what in the 2007 IEP she agreed with and what she
disagreed with.

See Letter from Marcus Dacanay to Mother, Apr.

18, 2008, Res. Ex. 9 at BT 283.
On April 25, 2008, Mother wrote to the DOE, complaining
about the DOE’s five-month refusal to allow Heartspring to
implement the 2007 IEP’s goals.

See Letter from Mother to Laurie

Seu, Apr. 25, 2008, Res. Ex. 9 at BT 284.
On May 17, 2008, Mother wrote to the DOE, stating that
she was “in agreement with the 2007 Goals as written and

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implemented at Heartspring (ie, across all settings).”

Res.

Ex. 9 at BT 290.
On May 19, 2008, Mother was informed via email that
Heartspring had been “unofficially running the new goals” and
that “at no time has [Student] been deprived of his educational
services.”

See Email from Sylvia Jimenez-Borst to Mother, May

19, 2008, Res. Ex. 9 at BT 292.

However, in June 2008, Mother

was told by a speech pathologist at Heartspring that it had “just
implemented the [goals] we suggested a while ago.”
at HDRC 00586; FoF 39.

Pet. Ex. 31

Mother concludes that the goals of

Student’s 2007 IEP were implemented in June 2008.

See

Petitioner’s Opening Brief at 5, Jan. 10, 2011, ECF No. 22.
On July 2, 2008, Mother requested another due process
hearing, challenging the DOE’s determination that Student would
“age out” on July 4, 2008, when Student turned twenty years old.
Mother also sought compensatory education.
Heartspring has reported the progress towards Student’s
2007 IEP goals.

That progress is set forth in Respondent’s

Exhibit 43, which indicates that, by November 2008, most of the
goals in the 2007 IEP had been met.
Mother’s due process hearing requests were consolidated
and, on January 14, 2009, Senior Hearing Officer Rodney A. Maile
issued Findings of Fact and Conclusions of Law.
37.

See Resp. Ex.

The Hearing Officer determined that the DOE had not violated

10

the IDEA by terminating Student’s special education and related
expenses.

Id.

Mother appealed.

On December 17, 2009, after lengthy appellate
proceedings, Judge David Alan Ezra reversed the Hearing Officer’s
decision in part.

See Order: (1) Reversing in Part the

Administrative Hearing Officer’s Findings of Fact, Conclusions of
Law and Decision; and (2) Remanding to the Hearing Officer on the
Issue of Compensatory Education, Civ Nos. 08-00356 DAE-BMK and
09-00059 DAE-BMK, Dec. 17, 2009, ECF No. 141 (attached as
Administrative Record on Appeal Ex. No. 1).
Judge Ezra reversed the Hearing Officer’s determination
that Student had “aged out” when he turned twenty years old,
ruling that the DOE was required to provide special education to
Student under the IDEA through age twenty-one, if the IEP team
determined that such education was warranted.

Id. at 8.

With respect to the two years of compensatory education
sought by Mother, Judge Ezra ruled that a two-year limitation
period barred compensatory education premised on events occurring
before July 2, 2006.

Id. at 9-10.

Judge Ezra additionally ruled

that, to the extent compensatory education was sought based on
alleged failures to update Student’s 2005 and 2006 IEPs, Mother
had failed to raise those issues before the Hearing Officer.
at 11-12.

Id.

Given the failure to exhaust the issue of whether the

11

2005 and/or 2006 IEPs had been updated, Judge Ezra ruled that he
lacked jurisdiction to review the issue.

Id. at 13.

Judge Ezra remanded to the Hearing Officer the issue of
whether any untimely implementation of the 2007 IEP warranted
compensatory education.

Because the Hearing Officer had assumed

that the DOE was entitled to stop providing services to Student
when he reached age twenty, the record had not been sufficiently
developed for Judge Ezra to determine the issue.

See id. at 14-

15.
Judge Ezra also determined that the Hearing Officer had
not sufficiently addressed the issue of whether the failure to
timely implement the 2007 IEP’s goals caused Student’s
regression.

Id. at 15.

In his order of December 17, 2009, Judge Ezra remanded
the case to the Hearing Officer with the following instructions:
The Hearing Officer is directed to
consider evidence regarding B.T.’s current[]
needs, the testimony submitted by Plaintiff
regarding B.T.’s alleged “regression” while
at Heartland, the current IEP, whether
Defendant did indeed fail to implement the
November 2007 IEP for reasons other than
B.T.’s “aging out,” and whether compensatory
education would benefit B.T. at this time.
When evaluating B.T.’s status, Hearing
Officer Maile is directed to take note that
the Court has ruled that Defendant may not
deny FAPE on the basis of attaining age 20
alone. Hearing Officer Maile must provide a
detailed explanation as to why or why not
compensatory education is warranted and his
reasons for developing a particular
compensatory program.
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The “stay put” order for B.T.’s
education shall remain in effect pending the
Court’s final disposition of these issues.
Id. at 16-17.
On remand, the Hearing Officer granted a motion in
limine filed by the DOE, ruling that, based on Judge Ezra’s
statute of limitation decision, Mother could not introduce
evidence from 2002 and 2003 in support of her compensatory
education claim.
at 6.

See Administrative Record on Appeal Ex. No. 8

The Hearing Officer also ruled that Mother could not

introduce evidence regarding the alleged failure to update the
2005 IEP because, having not been properly raised in the initial
pleadings, the matter was barred by the applicable statute of
limitation.

Id. at 4.

On July 12, 2010, after subsequent proceedings, the
Hearing Officer issued Findings of Fact, Conclusions of Law and
Decision on Remand.
No. 17.

See Administrative Record on Appeal Ex.

He found that Student “is severely disabled by autism

and requires supervision 24 hours a day, seven days a week.”
Finding of Fact (“FoF”) 1.
During the remand hearing, Student’s teacher testified
that he had worked with student since 2002.

Before going to

Heartspring in 2005, Student had been reading at the third- and
fourth-grade level and reading about 600 words in the Dolch word
system.

Reporter’s Transcript of Proceedings, Nov. 20, 2008, at

13

167-68.

When Student returned to Loveland in 2008, Student’s

academic skills had regressed.

Id.

For example, Student was

only reading at the second-grade level.

Id. at 167.

The teacher

testified that he believed Student’s regression resulted from
Heartspring’s concentration on Student’s life skills training,
rather than on academics.

Id. at 168.

In or around December 2009, Student showed signs of
possible tardive dyskinesia, a debilitating central nervous
system disorder caused by certain medications.

Reporter’s

Transcript of Proceedings, May 10, 2010, at 24, 62-63, 114.
Student’s psychiatrist determined that Student needed to be
weaned off the psychotropic medication suspected of causing the
condition.

Id.

Student was thereafter weaned off his medication

in or around January 2010 and became unable to perform or work on
any of his IEP goals.

Id.

Student subsequently resumed taking

the medication and stabilized.

Id. at 65.

Based on the Present Levels of Educational Performance,
the Hearing Officer determined that Heartspring had abandoned the
2007 IEP in favor of placing Student in a supported employment
program without an aide.

Heartspring told Student’s IEP team

that Student “spends most of his time outside the classroom
participating in functional work tasks.”

FoF 42-43.

Although there was no real dispute that Student would
benefit from compensatory education, the issue before the Hearing

14

Officer was whether Student was entitled to have the DOE provide
such compensatory education.

In his Conclusions of Law, the

Hearing Officer decided that the DOE was not at fault for having
asked Mother to provide a written statement allowing the DOE to
have Heartspring implement the 2007 IEP before putting it into
effect.

He also concluded that Student’s current conditions and

needs (his regression) was the result of the tardive dyskinesia
diagnosis, not the failure to have the 2007 IEP implemented
beginning in November 2007.

Finally, although there was evidence

indicating that Student would have benefitted from additional
compensatory education, the Hearing Officer concluded that,
because Student had received all of the required educational and
related services at Loveland, Student was not entitled to
compensatory education.
On August 6, 2010, Mother appealed the Hearing
Officer’s July 12, 2010, decision.

See ECF No. 1.

Mother raises

the following issues in her Complaint:
1.

Whether the failure to timely implement the 2007 IEP
was caused by Mother’s refusal to sign off on it or by
something the DOE was responsible for.

See Complaint,

First Claim for Relief ¶¶ 25-26.
2.

Whether Student’s regression was caused by the
perceived tardive dyskinesia and changes in Student’s

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medication, or by the failure to timely implement the
2007 IEP.
3.

See Complaint, Second Claim for Relief ¶ 28.

Whether the Hearing Officer had erred in concluding
that Student had received all necessary educational and
related services despite finding that there was
evidence that Student would benefit from compensatory
education.

4.

See Complaint, Third Claim for Relief ¶ 30.

Whether the Hearing Officer had erroneously excluded
evidence concerning the DOE’s alleged failure to update
Student’s 2005 IEP.

See Complaint, Fourth Claim for

Relief, ¶ 32; and Fifth Claim for Relief ¶ 34.
5.

Whether the Hearing Officer abused his discretion
sustaining the DOE’s objections to questions regarding
the DOE’s alleged failure to implement the 2007 IEP.
See Complaint, Sixth Claim for Relief ¶ 36.
Plaintiffs’ Opening Brief raises the following

additional issues:
6.

Whether a FAPE was denied when Heartspring School
allegedly abandoned the 2007 IEP by having Student
spend most of his time outside the classroom
participating in functional work tasks without a
vocational aide.

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7.

Whether Student’s regression automatically equals a
denial of a FAPE because, if Student regressed, he must
not have been receiving “some educational benefit.”

8.

Whether Student should be awarded compensatory
education.

9.

Whether Student should be reimbursed for Loveland’s
services from July 5, 2010, to the date of the court’s
order “pursuant to this Court’s ordered entered on
December 17, 2009 in Civil No 08-00356 DAE-BMK, Doc.
No. 141 at 18.”

IV.

STANDARD OF REVIEW.
Any party aggrieved by the 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).

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
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.”

17

20 U.S.C. § 1415(i)(2)(c).

Unlike with reviews of other administrative
proceedings, this court does not employ a “highly deferential
standard of review” to appeals involving the IDEA.

J.L. v.

Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010).
does this court use a de novo review standard.

Nor

Instead, the

court gives “due weight” to IDEA administrative proceedings,
giving “particular deference to ‘thorough and careful’
administrative findings.”

Id.

In recognition of the expertise

of the administrative agency, this court considers findings
carefully but is “free to accept or reject . . . findings in part
or in whole,” giving weight to those finding as the court feels
is appropriate.

See County of San Diego v. Cal. Special Educ.

Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996).
V.

ANALYSIS.
A.

Plaintiffs Have Abandoned Their Claim That the
Hearing Officer Abused His Discretion in
Sustaining the DOE’s Objections to Questions
Regarding the DOE’s Alleged Failure to Implement
the 2007 IEP.

In the Sixth Claim for Relief asserted in the
Complaint, Plaintiffs claim that the Hearing Officer abused his
discretion in sustaining the DOE’s objections to questions
regarding the DOE’s alleged failure to implement the 2007 IEP.
See Complaint, Sixth Claim for Relief ¶ 36. Plaintiffs have since
abandoned that claim.

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B.

The Hearing Officer Did Not Err in Precluding
Evidence Regarding the Alleged Failure by the DOE
to Update Student’s 2005 IEP.

In the last appeal to this court, Judge Ezra ruled that
Plaintiffs had not properly raised to the Hearing Officer the
issue of the DOE’s alleged failure to update Student’s 2005 IEP.
See Order at 11, Dec. 17, 2009, Civ. Nos. 08-00356 DAE/BMK and
09-00059 DAE/BMK.

On remand, Plaintiffs sought to have the

Hearing Officer address the issue.

The Hearing Officer properly

barred the introduction of evidence regarding that issue because
the issue had not been raised in the initial requests for due
process hearing and was barred by the applicable two-year
limitation period.

See 34 C.F.R. § 300.507(a)(2) (“The due

process complaint must allege a violation that occurred not more
than two years before the date the parent or public agency knew
or should have known about the alleged action that forms the
basis of the due process complaint . . . .”).
Plaintiffs argue that the Hearing Officer improperly
restricted the issues on remand by not allowing the updating of
the 2005 IEP issue to be litigated.

However, Plaintiffs do not

describe how the failure to update the 2005 IEP was timely raised
within two years of that failure.

It is not incumbent on this

court to scour the voluminous record to attempt to figure out the
bases of this claim.

The court concludes that the Hearing

Officer properly prohibited evidence regarding the time-barred

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claim pertaining to the updating of Student’s 2005 IEP, and the
DOE prevails on the Fourth and Fifth Claims for Relief asserted
in the Complaint.
C.

This Court Remands to the Hearing Officer the
Issue of What Delay in Implementing the 2007 IEP
Goals Was the DOE’s Fault and Whether Any Such
Delay Caused the Denial of a FAPE to Student for
Any Specific Period.

Mother challenges the Hearing Officer’s determination
that the DOE was not responsible for Heartspring’s delay in
implementing the 2007 IEP, which Mother says was implemented in
June 2008, rather than November 2007.

In declining to fault the

DOE for the delay in the implementation of the goals of Student’s
2007 IEP, the Hearing Officer reasoned that the DOE had been
justified in asking Mother to provide some sort of written
statement allowing the DOE to have Heartspring implement the 2007
IEP before it was actually in effect.

This court reverses the

Hearing Officer’s decision on this point, determining that the
Hearing Officer did not take into account all of the relevant
facts in making that determination.

The court remands the issue

to the Hearing Officer to determine the issue in light of all of
the facts.
Student’s 2007 IEP was completed in November 2007 but
not sent to Heartspring until, at the earliest, the end of
January 2008.

See Res. Ex. 9 at BT 220.

Heartspring says that

it did not see the 2007 IEP until about February 26, 2008, when a

20

copy of it was discovered in Student’s suitcase upon his return
from Hawaii.

See Pet. Ex. 31 at page HDRC 00589.

The Hearing

Officer did not take into account the delay from November 2007 to
either late January or late February 2008 in determining that the
DOE was not responsible for the allegedly untimely implementation
of the goals of the 2007 IEP.
Whether Heartspring received the 2007 IEP in January or
February 2008, it apparently did not officially implement it
until later, although Heartspring claims to have been
unofficially running the new goals.

In the interim, Heartspring

was waiting for the DOE to indicate that Heartspring should
indeed implement the 2007 IEP.

The Hearing Officer found that he

could not fault the DOE for the delay given Mother’s filing of
the January 2008 due process hearing request.

However, that due

process hearing request only challenged the January 2008 prior
written notice that the DOE intended to transfer Student from
Kansas to Oahu and sought to have the 2007 IEP’s goals
implemented in all phases of Student’s life.

Mother did not

challenge the appropriateness of the goals themselves and, when
asked in February 2008, she specifically gave her permission for
implementation of the goals to begin.

It was the DOE that

refused to give Heartspring permission to begin implementing the
2007 IEP goals while the due process hearing was pending, even
though that hearing did not relate to those goals.

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Given the

DOE’s admission at the hearing before this court that parts of
the IEP that are not challenged should be in effect, the Hearing
Officer erred when he concluded that he “couldn’t fault” the DOE
for the delay.
This court concludes that any delay after late February
2008 was attributable to the DOE but remands to the Hearing
Officer the issues of (1) whether the DOE caused any delay before
February 2008, (2) if there was a delay before February 2008, the
dates from which and until which the DOE caused such delay, and
(3) whether any delay before February 2008 that the DOE caused
and/or any delay after February 2008 (which latter delay the DOE
is determined by this court to have caused) caused the denial of
a FAPE to Student.

To clarify, this remand includes the question

of when Heartspring began implementing the goals and whether any
delay denied Student a FAPE.
D.

While the Hearing Officer Did Not Err in
Determining that Student’s Regression as of July
2010 Was Due to Perceived Tardive Dyskinesia,
Rather than the Alleged Failure to Timely
Implement the 2007 IEP, the Court Remands to the
Hearing Officer the Issue of Whether and to What
Extent Academic Goals Contained in the 2007 IEP
Were Ignored by Heartspring.

When Student returned from Heartspring in 2008, he had
academically regressed.

For example, his reading had gone from

the third- or fourth-grade level to the second-grade level.
Student’s teacher blamed this regression on Heartspring’s
concentration on life skills, rather than on academics.
22

In other

words, Heartspring was blamed for having failed to follow the IEP
and having instead concentrated on “functional work tasks” rather
than academics.

The Hearing Officer determined that Student’s

current conditions were the result of tardive dyskinesia and not
the failure to timely implement the 2007 IEP.
Record on Appeal Ex. No. 17 at 000212.

See Administrative

But the Hearing Officer

did not determine whether and to what extent a FAPE was denied
when Heartspring allegedly ignored the 2007 IEP’s goals in favor
of life skills.
The court agrees that the record supports the Hearing
Officer’s conclusions that Student’s condition in July 2010 was
caused by the change in medication that related to the suspected
tardive dyskinesia.
January 2010.

Student was weaned from his medication in

He began to be unable to perform his work soon

thereafter.

Once Student resumed his medication, his condition

stabilized.

However, the record does not establish whether and

to what extent academic goals contained in the 2007 IEP were
ignored by Heartspring.

The court therefore remands to the

Hearing Officer the issue of whether and to what extent academic
goals contained in the 2007 IEP were ignored by Heartspring and
the effect, if any, ignoring the goals had on Student’s
academics.

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E.

The Issue of What Compensatory Education, If Any,
Should Be Awarded is Remanded To the Hearing
Officer.

The Hearing Officer concluded that, although Student
would certainly benefit from compensatory education, compensatory
education was not made necessary by any denial of a FAPE.
The Ninth Circuit has explained that
Compensatory education services can be
awarded as appropriate equitable relief. 20
U.S.C. § 1415(i)(2)(B)(iii) (“shall grant
such relief as the court determines
appropriate”); Parents of Student W. v.
Puyallup Sch. Dist., 31 F.3d 1489, 1496-97
(9th Cir. 1994). “Appropriate relief is
relief designed to ensure that the student is
appropriately educated within the meaning of
the [Individuals with Disabilities Education
Act].” Parents of Student W., 31 F.3d at
1497. The courts have discretion on how to
craft the relief and “[t]here is no
obligation to provide a day-for-day
compensation for time missed.” Id. We
review the Hearing Officer’s and the district
court’s award of compensatory education
services for abuse of discretion. Id. at
1496.
Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1033 (9th
Cir. 2006).
Mother seeks an award of two years of discretionary
compensatory education.

She seeks one year to recoup Student’s

regression and a second year to give him an opportunity to
progress to where he would have been had a FAPE not been
allegedly denied by the failure to timely implement the 2007 IEP.
This court declines to award either at this time.

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Mother seeks one year of compensatory education to make
up for the academic regression Student suffered while at
Heartspring.

The Hearing Officer rejected that request, ruling

that the requested compensatory education was not necessary
because Student’s July 2010 regression was caused by the change
in Student’s medication.

To the extent the Hearing Officer

determined that Student’s regression as of July 2010 was caused
by changes in his medication, the court finds no error by the
Hearing Officer.

The court does not agree with Mother that,

whenever a student regresses, a FAPE is automatically denied
because the student did not receive “some educational benefit.”
Mother seeks an additional year of compensatory
education to make up for any delay and/or failure in implementing
the goals of Student’s 2007 IEP.

The court remands the

compensatory education issue to the Hearing Officer to determine
whether compensatory education is appropriate to compensate
Student for any such delay.

In making that determination, the

Hearing Officer shall first determine what goals contained in the
2007 IEP were not worked on or were otherwise delayed or ignored
while Student was at Heartspring.

The Hearing Officer shall

examine whether Heartspring ignored academic goals in favor of
concentrating on Student’s life skills.

The Hearing Officer

shall then determine whether a FAPE was denied as a result and
whether compensatory education is necessary to offset any delay

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and/or failure to work on any goal in Student’s 2007 IEP, taking
into account whether the goals were eventually met and any
continuing impact of the delay.
F.

Plaintiffs Are Not Entitled to the Requested
Reimbursemnt.

Mother seeks reimbursement for services provided by
Loveland Academy from and after July 5, 2010, when Student turned
twenty-two years old.

The parties agree that Student was not

eligible to receive IDEA services when he turned twenty-two years
of age.

Rather than relying on the “stay put” provision of the

IDEA, Plaintiffs claim entitlement to reimbursement because Judge
Ezra ruled in his December 17, 2009, order that the “stay put”
provision “shall remain in effect pending the Court’s final
disposition of these issues.”

The court does not read Judge

Ezra’s order as requiring the DOE to provide “stay put” services
for as long as this matter is being litigated even after Student
becomes ineligible for them under the IDEA.

To read Judge Ezra’s

order otherwise would allow Student to receive services under
“stay put” well after his entitlement to such services should
have ended simply by keeping issues alive on appeal.

That is,

such a reading would encourage challenges that parents knew were
baseless.

The court is in no way implying that Mother raised any

challenge she knew was baseless, but the court cannot read Judge
Ezra’s ruling as having condoned or encouraged that possibility.

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To the contrary, Judge Ezra appeared well aware that services
under the IDEA would end at age twenty-one.
VI.

CONCLUSION.
The court reverses in part, affirms in part, and

remands limited issues for a Hearing Officer to first determine.
The court reverses the Hearing Officer to the extent he
determined that the DOE was not at all responsible for the delay
in implementing the goals of Student’s 2007 IEP.

The court

determines that the DOE was responsible for any delay in
implementing those goals after late February 2008 because the DOE
refused to consent to Heartspring’s implementation of the goals.
However, the court remands to the Hearing Officer the issue of
whether and to what extent the DOE was responsible for
Heartspring’s alleged failure to receive a copy of the 2007 IEP
until January or February 2008, and Heartspring’s alleged failure
to implement its goals promptly.

If the Hearing Officer

determines that there was a delay or failure to implement the
goals of the IEP, the Hearing Officer shall make specific
findings as to what goals were affected and whether the delay in
implementing or failure to implement the goals denied Student a
FAPE as a result.

The court remands to the Hearing Officer the

issue of whether compensatory education is appropriate to
compensate Student for any delay in implementing or failure to
implement any specific goal or goals contained in Student’s 2007

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IEP that denied Student a FAPE.

The court, however, determines

that Student is not entitled to compensatory education based on
Student’s regression as of July 2010, as Student’s regression at
that time was caused by the change in his medication.

Finally,

the court rules that the DOE need not reimburse Plaintiffs for
Student’s expenses at Loveland Academy after he turned twenty-two
years of age.
The court orders that, on remand, the Hearing Officer
shall limit the issues to the ones identified in this order.
Accordingly, the parties shall not attempt to relitigate any
issue already determined or to broaden the issues on remand.
This court recognizes that Hearing Officer Maile is no longer
available to preside over a remand, but an administrative
proceeding appears better suited than a judicial evidentiary
proceeding for at least an initial resolution of the identified
issues.

Should any party file an appeal in this court from the

Hearing Officer’s decision on remand, a new civil number shall be
assigned to that appeal and the Clerk of Court shall assign the
appeal to the judges currently assigned to the matter--Judge
Susan Oki Mollway and Magistrate Judge Richard L. Puglisi.
The Clerk of Court is further ordered to keep copies of
the Administrative Record on Appeal, Petitioner’s and
Respondent’s exhibits, and transcripts until further ordered by
this court or until notified by the parties that it is no longer

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necessary to keep those documents in this court, rather than in a
long-term storage facility.

The parties are therefore ordered to

notify the court when those documents are no longer necessary
(ie., when the time to appeal the Hearing Officer’s decision has
run without an appeal being filed or when an appeal is taken to
state court).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 11, 2011.

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

B.T. v. Dep’t of Educ.; Civil No. 10-00456 SOM/RLP; ORDER AFFIRMING IN PART AND
REVERSING IN PART HEARING OFFICER’S DECISION; ORDER REMANDING LIMITED ISSUES TO
HEARING OFFICER

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