S-S. v. State of Hawaii, Department of Education et al

Filing 31

ORDER AFFIRMING THE HEARINGS OFFICER'S FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION 1 . Signed by Judge BARRY M. KURREN on 4/30/2012. ~ the Court affirms the Hearings Officers decision. The Clerk of Court is directed to enter judgment in the DOE's favor. (ecs, )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
D. S-S., individually and on behalf of )
her minor child, J.S., et al.
)
)
Plaintiffs,
)
)
vs.
)
)
STATE OF HAWAII,
)
DEPARTMENT OF EDUCATION, )
et al.,
)
)
)
Defendants.
)
______________________________ )

Civ. No. 11-00239 BMK
ORDER AFFIRMING THE
HEARINGS OFFICER’S
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION

ORDER AFFIRMING THE HEARINGS OFFICER’S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND DECISION
BACKGROUND
J.S. is a fifteen year old student eligible for services under the
Individuals with Disabilities Education Act (“IDEA”). (R. at 73 ¶¶ 1, 2.) In the
2009-10 school year, J.S. attended Assets School, which is a private school. (Id. at
¶ 3.) Prior to the Individualized Education Program (“IEP”) meeting, J.S. took
numerous tests (Id. at 73-74, ¶ 6.) One test, the “WIAT-II”, was untimed and
consisted of seven subtests. (Id. at 74 ¶¶ 11, 12.)
On December 15, 2009, J.S.’s mother, the principal of Niu Valley
Intermediate School, the care coordinator, a regular eduction teacher, and the

behavioral health specialist attended the IEP meeting. (Id. at ¶ 16.) J.S.’s teacher
at Assets School “was not invited to attend the . . . IEP meeting because of [its]
policy of not attending IEP meetings.” (Id. at 75 ¶ 17.) J.S.’s IEP was developed
in light of the various tests he took, the care coordinator’s observations of him in
his classroom at Assets School, and other information obtained by the DOE. (Id. at
¶ 18.)
On August 16, 2010, D.S-S., individually and on behalf of J.S.
(collectively, “Plaintiffs”), filed this action asserting that: 1) the DOE improperly
held the IEP meeting without participation from an Assets School teacher “such
that the resulting IEP does not reflect [J.S.’s] present abilities and needs;” and 2)
the Present Levels of Educational Performance (“PLEPs”) reflected untimed
testing and assistance and therefore did not represent J.S.’s true educational needs.
(Id. at 76.) The Hearings Officer issued a decision on March 10, 2011, concluding
in relevant part that the DOE did not deny J.S. a Free and Appropriate Education
(“FAPE”) by conducting the IEP meeting without a teacher from Assets School.1
The Hearings Officer also concluded that Plaintiffs had not proved that the
performance tests incorporated into J.S.’s PLEPS were supposed to be timed. (Id.

1

The Hearings Officer also concluded that the IEP review date was not disruptive
of J.S.’s schedule, but that issue was not raised in Plaintiffs’ appeal.
2

at 79.)
On April 8, 2011, Plaintiffs filed a complaint in this Court seeking
review of the Hearings Officer’s decision on the two issues discussed above. (Doc.
# 1; Opening Br. at 1-3.) As discussed below, the Court affirms the Hearings
Officer’s decision.
STANDARD OF REVIEW
When reviewing an administrative decision in an IDEA case, “courts
must give ‘due weight’ to judgments of education policy” and are not empowered
to “substitute their own notions of sound educational policy for those of the school
authorities which they review.” Ojai Unified School Dist. v. Jackson, 4 F.3d 1467,
1471 (9th Cir. 1993) (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,
1311 (9th Cir. 1987) (internal quotation marks omitted)). Courts have discretion
over how much to defer to state educational agencies, and deference to a hearing
officer’s findings is warranted where the findings are “thorough and careful.” See
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010) (quoting JG v.
Douglas County School Dist., 552 F.3d 786, 793 (9th Cir. 2008)). In this case, the
Court defers to the Hearings Officer’s decision because it appears thorough and
careful.
DISCUSSION
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The Court affirms the Hearings Officer’s conclusion that the DOE did
not deny J.S. a FAPE by conducting the IEP meeting without an Assets School
teacher. The IDEA requires the IEP team to include at least one “regular education
teacher of the student” and one special education teacher or provider of the student.
20 U.S.C. § 1414(d)(1)(B)(ii)&(iii); H.A.R. § 8-60-45(a)(2)&(3). Plaintiffs assert
that the DOE failed to invite a teacher from Assets School, and that no one
attending the IEP meeting had “first hand experience” with J.S. (Mem. In. Supp.
of Mot. at 2.) Although Plaintiffs correctly assert that no one from Assets School
was invited to the IEP meeting, the Hearings Officer found that J.S.’s “teacher at
[Assets School] was not invited to attend the December 15, 2009 IEP meeting
because of [Assets School]’s policy of not attending IEP meetings.” (R. at 75 ¶
17.) This finding is supported by evidence in the record, including the care
coordinator’s testimony that she had previously invited Assets School teachers to
IEP meetings several times, but “their policy is that they do not attend IEP
meetings . . . .” (Tr. at 64.) The DOE also produced a letter from Assets School
stating that it does not “[a]ttend or conduct IEP meetings . . . .” (Resp. Ex. 19 at
73.) Plaintiffs have not produced any case law indicating that the IDEA requires a
teacher’s presence when the private school has a policy expressly forbidding
participation in the IEP process.
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Furthermore, the DOE’s failure to invite a teacher from Assets School
did not deny J.S. a FAPE because the DOE conducted numerous tests and observed
J.S. at Assets School. The Hearings Officer found that the DOE requested records
from Assets School, but it only received a behavioral assessment. (R. at 74, ¶ 8.)
No other information was provided by Assets School. Based on the foregoing
findings, the Hearings Officer concluded that “notwithstanding little cooperation
from [Assets School], it appears that [the DOE], through its own efforts, was able
to obtain the most up-to-date information of [J.S.]’s present needs and abilities in
order to prepare an appropriate IEP.” (Id. at 79.) Plaintiffs have not produced any
evidence or argument indicating that the Hearings Officer erred in reaching this
conclusion; therefore, the Hearings Officer’s decision on this issue is affirmed.
The Court also affirms the Hearings Officer’s conclusion that the use
of untimed tests did not deny J.S. a FAPE. The Hearings Officer found that the
WIAT test provided to J.S. was untimed. (R. at 74 ¶ 12.) However, the Hearings
Officer found the care coordinator “credible and knowledgeable” about
administering the WIAT test, and the care coordinator testified that there are no
time limits for the particular tests taken by J.S. (Id. at 78.) Therefore, the Court
affirms the Hearings Officer’s decision that the DOE properly administered J.S.’s
tests.
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CONCLUSION
For the foregoing reasons, the Court affirms the Hearings Officer’s
decision. The Clerk of Court is directed to enter judgment in the DOE’s favor.
DATED: Honolulu, Hawaii, April 30, 2012.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

D. S-S. v. State of Hawaii Dept. of Educ., Civ. No. 11-00239 BMK, ORDER
AFFIRMING THE HEARINGS OFFICER’S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND DECISION
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