N. et al v. State of Hawaii, Department of Education et al

Filing 31

ORDER AFFIRMING DECISION OF ADMINISTRATIVE HEARINGS OFFICER AND DENYING REIMBURSEMENT FOR PRIVATE PLACEMENT AND ATTORNEY'S FEES re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/1/11. ("The Decision of the Hearings Office r is AFFIRMED in its entirety. M.N.'s request for tuition reimbursement pursuant to 34 C.F.R. § 300.148(c) and for attorney's fees is DENIED. The Clerk of Court is directed to enter judgment for the DOE and to close this case.") < /FONT> (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
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT
)
OF EDUCATION and KATHRYN
)
MATAYOSHI, in her official
)
capacity as Acting
)
Superintendent of the Hawaii )
Public Schools,
)
)
Defendants.
)
_____________________________ )
M.N., individually and on
behalf of her minor child,
A.B.,

CIVIL NO. 11-00121 SOM/BMK
ORDER AFFIRMING DECISION OF
ADMINISTRATIVE HEARINGS
OFFICER AND DENYING
REIMBURSEMENT FOR PRIVATE
PLACEMENT AND ATTORNEY’S FEES

ORDER AFFIRMING DECISION OF ADMINISTRATIVE HEARINGS OFFICER AND
DENYING REIMBURSEMENT FOR PRIVATE PLACEMENT AND ATTORNEY’S FEES
I.

INTRODUCTION.
Plaintiff M.N., proceeding individually and on behalf

of her son, A.B., seeks reversal of the Findings of Fact,
Conclusions of Law and Decision issued by the Administrative
Hearings Officer (“AHO”) regarding whether M.N. is entitled to be
reimbursed for A.B.’s tuition at the Pacific Autism Center
(“PAC”), a private school.

The AHO’s decision, issued on

January 24, 2011, denied reimbursement, concluding that PAC was
not an appropriate placement for A.B.
A.B.’s mother appeals the AHO’s ruling, arguing that,
as placement at PAC was appropriate, she is entitled to
reimbursement from Defendants Department of Education for the
State of Hawaii and Superintendent Kathryn Matayoshi

(collectively, the “DOE”) for A.B.’s tuition and attorney’s fees
under the Individuals with Disabilities Education Act (the
“IDEA”), 20 U.S.C. § 1400 et seq.

This court affirms the AHO’s

decision to deny M.N.’s request for reimbursement and also denies
M.N.’s request for attorney’s fees.
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)).

The IDEA ensures that “all children with

disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and prepare them for further
education, employment, and independent living.”

20 U.S.C. §

1400(d)(1)(A).
To provide a free appropriate public education (“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.

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

2

educational program’ (IEP).”

Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982) (“Rowley”)
(citing 20 U.S.C. § 1401(18)).

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.
20 U.S.C. § 1414(d).

34 C.F.R. § 222.50; see also

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).
When a parent disagrees with the contents of an IEP,

the parent may challenge that IEP by demanding an administrative
due process hearing.

See 20 U.S.C. § 1415(b)(6), (f)(1)(A).

In

addition, a parent may enroll the child in a private program,
and, upon establishing that the pubic school failed to provide a
FAPE, the parent may seek reimbursement.

See 20 U.S.C. § 1412

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

To be awarded reimbursement,

the parent must establish that placement at a private school was
appropriate.
III.

Id.

FACTUAL AND PROCEDURAL BACKGROUND.
A.B. is an 8-year-old autistic boy with severe

communication, academic, and behavioral difficulties.
Petitioners’ Exs. at 1-9.

See

He was diagnosed with autism in

September 2006 and qualifies for special education.

3

Id. at 42;

Administrative Record (“AR”) at 14.

From 2007 through

the 2008-09 school year, A.B. attended Ewa Beach Elementary, a
public school.

Id. at 154.

In June 2009, his mother

unilaterally removed him from Ewa Beach Elementary and enrolled
him at the Pacific Autism Center.

Administrative Record (“AR”)

at 154.
PAC applies verbal behavior science and employs a
method called Applied Behavioral Analysis (“ABA”).

See

Transcript of Proceedings (“Transcript”) at 38:21 to 39:4,
40:9-15.

The clinical director of PAC, Christi Reed (“Reed”),

explained that PAC focuses on the “acquisition of language and
how to make that functional.”

Id. at 39:9-10.

She described

verbal behavior as “breaking down the function of language so
that our kids can use it every which way that they will need to
help them succeed.”

Id. at 42:21-24.

She further explained

that, for A.B., “in order to acquire more advanced skills, such
as traditionally viewed academic and social skills, [PAC] tr[ies]
to decrease problem behavior.”

Id. at 72:25 to 73:1-4.

According to Reed, A.B. had behavior problems that arose out of
his inability to communicate his wants and needs.

See id.

at 70:25 to 71:1-5.
On March 1, 2010, while A.B. was attending PAC,
representatives from Ewa Beach Elementary conducted an IEP
meeting regarding A.B.

AR at 155.

4

M.N. attended the meeting,

but a representative from PAC was unavailable.

Id.

PAC provided

Ewa Beach Elementary with only limited information about A.B.’s
educational performance in the form of a Student Status Report
dated December 14, 2009.

Petitioners’ Ex. at 1; Respondents’ Ex.

at 88.
An IEP was prepared in March 2010 that identified a
number of goals and objectives for A.B. in various areas,
including writing, reading, math, physical education, fine arts,
and health.

The IEP provided for occupational therapy, as well

as speech and language therapy.

Id. at 10-27.

On May 28, 2010, M.N. told Ewa Beach Elementary Care
Coordinator Anne Greseth-Kim (“Greseth-Kim”) by telephone that
A.B. would be returning to Ewa Beach Elementary the next school
year.

Transcript at 111:20 to 112:2.

Greseth-Kim informed M.N.

that M.N. had to attend a transition meeting, and that someone
would contact her soon to schedule the meeting.
at 114:10-21.

Id.

However, M.N. changed her mind and informed

Greseth-Kim by letter on June, 28, 2010, that A.B. would be
staying at PAC.

See Petitioners’ Ex. at 36.

Greseth-Kim

continued to try to schedule the transition meeting, but despite
numerous attempts, including the sending of a written meeting
notice, Greseth-Kim was unable to contact M.N.
at 115.

5

See Transcript

An IEP meeting was held on July 12, 2010.
to attend.

A new IEP was then drafted.

M.N. failed

AR at 10.

On August, 6, 2010, Petitioners filed a request for an
impartial administrative hearing, claiming that the IEPs of both
March 1, and July 12, 2010, were defective and denied A.B. a
FAPE.

Id. at 6.

In addition, Petitioners requested

reimbursement for educational expenses incurred from the time of
filing (August 6, 2010), as well as attorney’s fees.

Id.

On January 24, 2011, the AHO concluded that the March
and July 2010 IEPs had failed to offer A.B. a FAPE by failing to
address his transitional needs.

AR at 170.

denied M.N.’s request for reimbursement.

The AHO, however,

Id.

In denying reimbursement, the AHO stated that the
“Petitioners . . . failed to prove by a preponderance of the
evidence that the unilateral placement of Student at Private
School was appropriate.”

AR at 169.

The AHO found that, even

after attending PAC for a year and a half, and “[i]n spite of
Private School’s decision to focus on functional communication,”
A.B. had so many needs that were “unaddressed” and so many areas
in which A.B. had shown no progress that the AHO could not deem
PAC to be “an appropriate placement for Student.”

Id.

The AHO

also considered PAC’s reluctance to allow Ewa Beach Elementary
access to PAC’s staff, and M.N.’s reluctance to cooperate during
the IEP process.

Id.

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The AHO denied reimbursement under Burlington.

See

Burlington, 471 U.S. at 370 (addressing the requirement that a
court find an IEP inappropriate and a private school placement
proper before ordering reimbursement).
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 to 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.”

20 U.S.C. § 1415(i)(2)(C).

“Equitable considerations are relevant in fashioning relief.”
Burlington, 471 U.S. at 374.
District courts review the hearings officer’s
conclusions de novo.

Ashland Sch. Dist. v. Parents of Student

E.H., 587 F.3d 1175, 1182 (9th Cir. 2009).

However, de novo

under the IDEA “carries with it the implied requirement that due

7

weight shall be given to [the administrative] proceedings.”
(quoting Rowley, 458 U.S. at 206).

Id.

A district court “must give

deference to the state hearing officer's findings, . . . and
avoid substituting its own notions of sound educational policy
for those of the school authorities which it reviews.”
Id. (internal quotation marks, modifications, and citations
omitted).

A court must consider the findings carefully and

respond to the hearings officer’s resolution of each material
issue.

Capistrano Unified Sch. Dist. v. Warternberg,

59 F.3d 884, 891 (9th Cir. 1995).

The court, however, is free to

accept the findings in part or in whole.

Id.

Greater deference

is appropriate when the findings are “thorough and careful.”
J.G. v. Douglas County Sch. Dist., 552 F.3d 786, 793 (9th
Cir. 2008).
V.

ANALYSIS.
This appeal is limited in scope.

M.N. challenges only

the AHO’s conclusion that M.N. was not entitled to reimbursement
for A.B.’s tuition at PAC.

Under 34 C.F.R. § 300.148(c),

reimbursement for a private school placement is sometimes
available:
If the parents of a child with a disability,
who previously received special education and
related services under the authority of a
public agency, enroll the child in a private
preschool, elementary school, or secondary
school without the consent of or referral by
the public agency, a court or a hearing
officer may require the agency to reimburse
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the parents for the cost of that enrollment
if the court or hearing officer finds that
the agency had not made FAPE available to the
child in a timely manner prior to that
enrollment and that the private placement is
appropriate.
However, parents who unilaterally remove a child from a public
education to a private school do so “at their own financial
risk.”

Burlington, 471 U.S. at 373-74.

The court must conclude

that the private school placement was appropriate before
ordering reimbursement.
A.

Ashland, 587 F.3d at 1183.

PAC Was Not an Appropriate Placement Because PAC
Did Not Meet A.B.’s Unique Needs.

Neither party challenges the AHO’s conclusion that the
IEPs denied A.B. a FAPE.1

The only issue is therefore whether

1

Because it is not an issue raised on appeal, this court
does not address the merits of the AHO’s conclusion that the DOE
denied A.B. a FAPE by failing to adequately address his
transitional needs. As this court ruled in L.I. v. Hawaii, Dep’t
of Educ., Civ. No. 10-00731 SOM/BMK, which involved a child over
the age of sixteen, the requirement in the IDEA that an IEP
include transition services does not apply when a child is moving
from a private placement to a public school. While A.B. is much
younger, the court is unaware of any IDEA provision requiring
that his IEP include transition services. Indeed, the AHO stated
that he agreed with the DOE “that the IDEA does not mandate
inclusion of a transition plan in an IEP.” AR at 165. The AHO
continued, “However, the IDEA does mandate that Student’s needs
must be addressed.” Id.; see also id. at 167 (“while the
Hearings Officer is aware that the IDEA does not mandate that a
transition plan needs to be a part of a student’s IEP, Student’s
transitional needs must still be addressed”).
The AHO appears to have been saying that, while the IDEA
does not require the inclusion of a transition plan in an IEP,
the requirement that a student’s needs be met includes
transitional needs. No citation to any authority is provided by
the AHO on this point. The failure of the IEP to address
9

PAC was an appropriate placement.

The Ninth Circuit has

recently adopted the Second Circuit’s standard for determining
whether a private placement is appropriate.

In Baquizero v.

Garden Grove Unified School District, 635 F.3d 1155 (9th Cir.
2011), the Ninth Circuit held that parents “need only
demonstrate that the placement provides educational instruction
specially designed to meet the unique needs of a handicapped
child, supported by such services as are necessary to permit the
child to benefit from instruction.”

Id. at 1159.

The private placement need not provide an education
that meets the IDEA’s definition of a FAPE.

Florence County

Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993) (holding that
parents were not barred from reimbursement just because the
private school in which the student was enrolled did not meet
the IDEA’s definition of a FAPE).

That is, although a school

must meet state educational standards to provide a FAPE,
reimbursement is not barred by the private school’s failure to
meet those standards.
635 F.3d at 1159).

Id. at 14 (as cited in Baquerizo,

Furthermore, “parents need not show that a

private placement furnishes every special service necessary to
maximize their child’s potential.”

Baquerizo, 635 F.3d.

transitional needs was the sole basis for the AHO’s conclusion
that a FAPE was not offered. Id. at 170. This court questions
without deciding whether the AHO could impose a legal requirement
(such as the inclusion of a transition plan in an IEP) that the
IDEA itself clearly does not require.
10

at 1159.

The private school, however, cannot have provided the

child with “no educational benefit.”

See W.G. v. Bd. of

Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1487
(9th Cir. 1992) (“Target Range”), superceded by statute on other
grounds, Individuals with Disability Education Act Amendments
of 1997, Pub. L. 105-17, § 614(d)(1)(B), 111 Stat. 37.
In Baquerizo, the Ninth Circuit affirmed a district
court’s award of reimbursement for an autistic child’s placement
at a private school because the school met many of the child’s
educational needs and provided “significant educational
benefits.”

653 F.3d at 1158-60.

The IEP prepared by the school

district had identified a number of the child’s unique needs.
Id. at 1159.

The parent did not dispute those needs, but took

issue with the services the school district proposed to provide.
Id.

Notably, while the private school did not meet all of the

child’s needs, the child showed “‘significant growth’ in many
learning areas and social development.”

Id. at 1158.

By contrast, A.B. has not shown significant growth,
and many of his needs have not been addressed.

The AHO found

that PAC failed to address “so many” of A.B.’s needs, and that
A.B. made “no progress” in “too many” areas.

AR at 169.

PAC

had not met A.B.’s needs in “academics, group instruction,
socialization, generalization and occupational therapy,” even

11

after A.B. had attended PAC for a year and a half.

Id.

at 169-70.
The AHO made “thorough and careful” factual findings,
warranting this court’s deference.

The AHO consulted the

Student Status Report and the Assessment of Basic Language and
Learning Skills (“ABLLS”) prepared by PAC.

See AR at 161.

AHO also relied on the testimony of Reed and Greseth-Kim.

The
Id.

From the ABLLS, the AHO found that A.B. had made “no gains” in
syntax and grammar, reading, writing, math, eating, grooming,
and gross and fine motor skills.

The ABLLS also indicated to

the AHO that A.B. had made “no progress” in social interaction,
general responding, and the ability to follow classroom
routines.

Id.

Furthermore, based on the ABLLS, the AHO found

that PAC had not set any goals for A.B.’s spelling.

Id.

The AHO’s decision called attention to Reed’s
testimony that PAC’s focus is “language acquisition.”
at 163.

Id.

The decision also highlighted Greseth-Kim’s testimony

expressing surprise and concern that, although A.B.’s IEP
identified objectives and needs, the ABLLS indicated that no
gains were made in most of those areas, such as socialization
and generalization.

Id.

The crux of M.N.’s position is that PAC was indeed
addressing A.B.’s educational needs, but doing so using a
medical model that, despite using terms different from what

12

academics use, was no less focused or effective than an
educational model.

M.N. appears to be arguing that PAC used

different words and methods but was addressing what the IEPs
would have addressed in terms of academics.

But M.N. does

nothing more than assert this, all the while ignoring statements
by Reed herself that PAC was not addressing numerous needs or
goals set forth in the IEPs.

As noted above, M.N. does not

challenge the appropriateness of addressing those needs or
meeting those goals.

Yet, as Reed conceded, PAC did not

provide, for example, occupational therapy to address gross and
fine motor skills.

See Transcript at 77:15-21.

Nor does M.N.

address the evidence in the ABLLS that A.B. made no progress in
a host of areas, including math and writing.
Reviewing the AHO’s findings and the record, this
court is unable to find that PAC provided A.B. with instruction
designed to meet his unique needs.

Focusing on language

acquisition, PAC left many of A.B.’s other needs unaddressed.
The March 2010 IEP identified needs in reading, writing, math,
communication, life skills (such as grooming and dressing), and
participating in interactive play.

Petitioners’ Exs. at 2-8.

The ABLLS, prepared by PAC, indicates that from August 24, 2009
(when PAC took baseline measurements), until September 10, 2010
(the last date of testing), A.B. made no progress at PAC in
numerous and wide-ranging areas, including math, reading,

13

following classroom routines, social interactions, syntax and
grammar, writing, spelling, eating, and grooming.

Id. at 56-58.

M.N. argues that the ABLLS indicates that A.B.
actually did make progress in a number of areas, including
cooperation, communication, and motor skills.
Brief at 8.

Pls. Opening

Even if this is true, A.B.’s poor performance in

many more areas that the IEP recognized as needs is too stark to
ignore.

The Autism Program Coordinator at Ewa Beach Elementary,

Aileen Kupihea, explaining the deficiencies in A.B.’s education
at PAC, noted, for instance, that social interaction “impacts
language development, functional language development.”
Transcript at 165:18-25.

She said that, as a “hallmark deficit”

of autistic children, social skills should be addressed “in
early intervention, . . . and not wait.”

Id.

M.N. also argues that the technique PAC employs is a
“modern perspective on educating children with a severe
disability.”

Pls. Opening Brief at 13.

She argues that when

A.B.’s progress is evaluated through that lens, rather than the
“traditional lens of an educator,” PAC is an appropriate
placement.

Id.

The court recognizes that alternative methods

of education are often valuable, and that the use of an
alternative education system does not bar a court from finding
that a private placement was proper.

See Target Range, 960 F.2d

at 1487 (noting that a private tutor’s failure to use the

14

program determined to be appropriate by the school district was
not a bar to reimbursement).

However, the issue here is not

that PAC is an alternative education system.

Rather, the

court’s concern, as was the AHO’s, is that A.B. made no gains in
a majority of the areas that his IEP identified as needs.
The court also notes that PAC failed to provide A.B.
with exposure to nondisabled children.

“Disabled children, to

the maximum extent appropriate, should be educated with children
who are not disabled, i.e., they should be mainstreamed.”
Seattle, 82 F.3d at 1500 (citing 20 U.S.C. § 1412(5)(B)).
are no nondisabled children at PAC.

Transcript at 46:2.

There
While

“mainstreaming” is not always appropriate for a child, Seattle,
82 F.3d at 1500, PAC is incapable of offering it as a
possibility.
In short, because PAC did not provide instruction
designed to meet most of A.B.’s unique needs, the court agrees
with the AHO that PAC was not an appropriate placement for A.B.
B.

PAC’s Failure to Provide Information and M.N.’s
Unwillingness to Participate in the IEP Weigh
Against Awarding Reimbursement.

When determining whether reimbursement is proper, a
court “must consider all relevant factors, including the notice
provided by the parents and the school district's opportunities
for evaluating the child, in determining whether reimbursement
for some or all of the cost of the child's private education is

15

warranted.”

Forest Grove Sch. Dist. v. T.A., 129 S.

Ct. 2484, 2493 (2009).

The court is also to consider “[t]he

conduct of both parties.”

Parents of Student W. v. Puyallup

Sch. Dist., No. 3, 31 F.3d 1489, 1496 (9th Cir. 1994) (citations
omitted). Several factors weigh against reimbursement.

First,

Ewa Beach Elementary was unable to fully evaluate A.B. at the
March 2010 IEP because PAC would not provide Greseth-Kim with
A.B.’s records, progress reports, and assessments (with the
exception of one Student Status Report).

Second, M.N. appears

to have evaded the school district when Greseth-Kim tried to
organize A.B.’s July 2010 IEP and transition meeting.
Transcript at 115:17-21; AR at 169.

Greseth-Kim called M.N. and

left messages seven times, sent four letters (three of which
were returned unopened), and went to her home.
at 115:17-21.

Transcript

M.N. testified that she believed that both

parties understood that the meeting was no longer necessary.
Transcript at 30:18-25.

This, however, does not explain why

M.N. failed to respond to any of Greseth–Kim’s phone calls and
letters.

Even assuming placement at PAC had been proper, these

factors would weigh in favor of denying reimbursement.
C.

Attorney’s Fees are Not Warranted.

The IDEA authorizes attorney’s fees “to a prevailing
party who is the parent of a child with a disability.”

16

20 U.S.C. § 1415(i)(3)(B)(i)(I).

As M.N. has not prevailed on

her appeal, she is not entitled to attorney’s fees.
VI.

CONCLUSION.
The Decision of the Hearings Officer is AFFIRMED in

its entirety.

M.N.’s request for tuition reimbursement pursuant

to 34 C.F.R. § 300.148(c) and for attorney’s fees is DENIED.
The Clerk of Court is directed to enter judgment for the DOE
and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 1, 2011.

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

M.N. v. State of Hawaii, Department of Education; Civil No. 11-00121 SOM/BMK; ORDER
AFFIRMING DECISION OF ADMINISTRATIVE HEARINGS OFFICER AND DENYING REIMBURSEMENT FOR
PRIVATE PLACEMENT AND ATTORNEY’S FEES

17