Department of Education, State of Hawaii v. B. et al
Filing
57
ORDER REVERSING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/1/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications receiv ed 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. A copy of the order shall be served by first class mail to Administrative Hearings Officer Haunani Alm at Office of Administrative Hearings, 335 Merchant Street, Ste 100, Honolulu, HI 96813 on May 1, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEPARTMENT OF EDUCATION,
STATE OF HAWAI`I,
Plaintiff,
vs.
C.B., by and through his
Parents, DONNA and SCOTT B.,
Defendants.
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CIVIL NO. 11-00576 SOM/RLP
ORDER REVERSING THE DECISION
OF THE ADMINISTRATIVE
HEARINGS OFFICER
ORDER REVERSING THE DECISION
OF THE ADMINISTRATIVE HEARINGS OFFICER
I.
INTRODUCTION.
Plaintiff Department of Education (“DOE”) of the State
of Hawaii appeals an order by an Administrative Hearings Officer
(“AHO”) that, pursuant to the Individuals with Disabilities
Education Act (“IDEA”), the DOE reimburse Defendant C.B. and his
parents, Donna and Scott B. (“Parents”), for expenses at a
private institution.
Asserting that the DOE had failed to
provide a Free Appropriate Public Education (“FAPE”) to C.B.,
Parents had sent C.B. to Autism Management Services (“AMS”), the
private facility that the child now attends.
This court
concludes that C.B. was not denied a FAPE and reverses the AHO’s
decision.
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 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 Individualized
Education Program (“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” through an IEP.
Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley (“Rowley”), 458 U.S.
176, 181 (1982) (citing 20 U.S.C. § 1401(18)).
The IEP, which is
prepared at a meeting attended by a qualified representative of
the local educational agency, the child’s teacher, the child’s
parents or guardian, and, when appropriate, the child, consists
of a written document containing:
2
(i) A statement of the present levels of
educational performance of the child;
(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.
20 U.S.C.
§ 1414(d)(4).
“Parental 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 public
education’ for each disabled child.”
Id.
Violations of the IDEA may arise in two situations.
First, a school district, in creating and implementing an IEP,
may run afoul of the IDEA’s procedural requirements.
U.S. at 205-06.
Rowley, 458
Second, a school district may become liable for
3
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.
Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).
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
e.g., 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 a parent or child.
Id.
Such
substantive rights include the loss of a child’s educational
opportunity or an infringement of a parent’s opportunity to
participate in the IEP process.
Id.
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).
A
parent may also enroll the child in a private program, and, upon
establishing that the public school failed to provide a FAPE, may
seek reimbursement.
See 20 U.S.C. § 1412(a)(10)(C)(ii).
To be
awarded reimbursement, a parent must establish that placement at
4
a private school was proper under the IDEA.
C.B. ex rel.
Baquerizo v. Garden Grove Unified Sch. Dist., 653 F.3d 1155, 1159
(9th Cir. 2011) (quoting Cnty. of San Diego v. Cal. Special Educ.
Hearing Office, 93 F.3d 1458, 1466 (9th Cir. 1996)).
III.
FACTUAL AND PROCEDURAL BACKGROUND.
C.B. is a five-year-old boy with autism.
Administrative Record on Appeal (“AR”) at 227 (“Decision”) ¶ 1.
He has received special education since 2009.
Id. ¶ 4.
Since
May 2011, C.B. has been enrolled at AMS, a private program for
children with autism.
Id. ¶ 45.
C.B. previously attended
Horizons Academy, a private school.
Id. ¶ 18.
Disputes about the one-to-one paraprofessional services
provided by the DOE are prominent in the present case.
C.B.’s
home public school was Kamali’i Elementary School on the island
of Maui.
Id. ¶ 16.
An IEP dated June 18, 2009, required
Kamali’i to provide twenty-nine hours per week of daily one-toone paraprofessional services by a DOE-contracted provider.
Id. ¶ 5.
Another IEP was prepared for C.B. on May 28, 2010.
Id. ¶ 6.
The May 2010 IEP replaced the contracted provider with
a DOE employee and required that the paraprofessional have
certain credentials.
Id. ¶ 6-7.
The May 2010 IEP also removed
the twenty-nine-hour requirement and stated only that C.B. would
receive the one-to-one paraprofessional services “daily.”
Petitioners’ Exhibits at 11.
Not satisfied with the new DOE
5
paraprofessional and allegedly seeing C.B.’s behavior regress,
Parents moved C.B. to Horizons in September 2010.
Decision
¶¶ 8-16.
On October 28, 2010, the DOE held an IEP meeting that
resulted in the IEP in issue before this court.
Petitioners’ Exhibits at 28.
Id. ¶ 22;
C.B.’s father wanted the IEP to
include services designed to ease C.B.’s transition back to
Kamali`i.
Decision ¶ 24.
Parents also requested that the IEP
require the one-to-one paraprofessional to have certain
credentials required by the IEP of May 24, 2010.
Id. ¶ 28.
The
DOE refused on the ground that doing so would limit which
individuals could work with C.B.
Id. ¶ 28.
C.B.’s father asked
how much time the paraprofessional would spend with C.B. each day
and was told that “someone would always be there to watch Student
at all times.”
Id. ¶ 29.
The October 2010 IEP ultimately did
not require any credentials and provided that C.B. would receive
one-to-one paraprofessional support “daily.”
Id. ¶ 30;
Petitioners’ Exhibits at 39.
Parents requested a due process hearing on April 26,
2011.
The AHO convened a hearing on July 18, 2011, and issued
her decision on August 30, 2011.
The AHO made numerous factual
findings and concluded that the DOE had procedurally violated the
IDEA (1) by not discussing C.B.’s transition needs at the IEP
meeting on October 28, 2010, and by not including a transition
6
plan or addressing C.B.’s transition needs in his October 2010
IEP, and (2) by failing to provide Parents with information they
requested about the paraprofessional services.
at 18-19.
Decision
She then concluded that those procedural violations
denied C.B. a FAPE.
The AHO also concluded that, under Burlington, 471
U.S. 359, Defendants were entitled to reimbursement because
C.B.’s placement at AMS had been appropriate.
Id. at 21.
She
ordered the DOE to reimburse Parents for the AMS costs until the
DOE developed an appropriate IEP for C.B.
Id.
The present
appeal is the DOE’s challenge to the AHO’s Decision.
On January 24, 2012, this court denied the DOE’s motion
for a preliminary injunction.
The DOE sought to bar enforcement
of the AHO’s Decision ordering the DOE to reimburse Parents for
services provided to C.B. at AMS.
Three factors of the four-
factor preliminary injunction test weighed against granting the
motion.
This court did, however, note with respect to the fourth
factor that the DOE was likely to succeed on the merits of its
appeal.
On December 16, 2011, C.B. filed a “stay put” motion,
which asked this court to direct the DOE to fund C.B.’s placement
at AMS during the pendency of judicial proceedings.
Because this
court was unable to determine whether the AHO had intended to
change C.B.’s “current educational placement” when she referred
7
to AMS as an “appropriate program” for C.B. and ordered
reimbursement, this court, on March 29, 2012, stayed the “stay
put” motion pending a remand to the AHO for clarification on that
limited issue.
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 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).
Under the IDEA, a district court reviews a 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 weight shall be given to [the administrative] proceedings.”
Id. (quoting Rowley, 458 U.S. at 206).
8
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.”
JG v.
Douglas Cnty. Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008).
V.
ANALYSIS.
This court’s reversal of the AHO’s Decision is driven
by this court’s view that the IDEA does not require what the AHO
ordered, even though it might be good policy if the IDEA did so
require.
As Parents and the AHO acknowledge, the IDEA does not
purport to require schools to provide the ideal education for
disabled children.
“[A]n appropriate public education does not
mean the absolutely best of potential-maximizing education for
the individual child.”
J.W. ex rel. J.E.W. v. Fresno Unified
Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010) (quoting Gregory K.
v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987))
(quotation marks omitted).
The AHO appears to this court to be
requiring the DOE to do more than the IDEA requires.
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C.B. argued to the AHO (and continues to argue to this
court) that, under the IDEA, the DOE was required to discuss his
transition needs and provide him with more information than was
provided about his one-to-one paraprofessional services.
agreed.
The AHO
It may well be that the DOE should have provided C.B.
with more discussion about his transition needs and with more
details about how often he would receive the paraprofessional’s
services.
However, if C.B. was entitled to have those
discussions, that entitlement is not grounded in the IDEA, which
requires school districts “to provide only a ‘basic floor of
opportunity.’” Id. (quoting Rowley, 458 U.S. at 200–01).
The
court therefore reverses the AHO’s decision that the DOE failed
to comply with the IDEA.
A.
Transition Needs.
The AHO concluded that the DOE committed a procedural
violation of the IDEA by “not discussing Parents’ concerns about
Student’s transition needs at the [October 28, 2010, IEP]
meeting, by not including a transition plan and/or by not
addressing Student’s needs for transition in the [October 2010]
IEP goals and/or objectives.”
Id.
She stated:
Though the IDEA does not require an IEP
[to] contain a transition plan, it does
require the [IEP] Team to discuss and develop
an educational plan that addresses each of
the child’s unique needs and any appropriate
support services to allow the child to take
advantage of educational opportunities. A
transition plan or process between Student’s
10
non-DOE placement and the Home School is a
unique need of Student and a support service
that allows Student to take advantage of the
educational opportunities in his IEP.
Decision at 18.
As recognized by the AHO, and as previously stated by
this court, the DOE is not required to include a transition plan
in an IEP whenever a child moves from a private institution to a
public school.
See L.I. v. Hawaii, Dep’t. of Educ., Civil No.
10-00731 SOM/BMK, 2011 WL 6002623, at *6 (D. Haw. Nov. 30, 2011).
See also M.N. v. Hawaii, Dep’t. of Educ., Civil No. 11-00121
SOM/BMK, 2011 WL 6020861, at *4 n.1 (D. Haw. Dec. 1, 2011)
(questioning the validity of an AHO’s conclusion that, because
the IDEA requires that a student’s needs be met, the failure of
an IEP to address transitional needs constituted the denial of a
FAPE).
The IDEA clearly requires an IEP to include a number of
matters, such as a statement of the child’s present level of
achievement and measurable goals.
20 U.S.C. § 1414(d)(A)(i).
Nowhere is there a requirement that an IEP include a transition
plan when a child moves from a private facility to a public
school.
The IDEA explicitly prohibits construing § 1414 to
require “that additional information be included in a child’s IEP
beyond what is explicitly required in this section.”
§ 1414(d)(1)(A)(ii).
11
20 U.S.C.
Section 1414 requires an IEP to include transition
services only in certain circumstances not applicable here.
Thus, an IEP must address transition services for a child age
sixteen and above to assist the child in reaching “appropriate
measurable postsecondary goals based upon age appropriate
transition assessments related to training, education,
employment, and, where appropriate, independent living skills.”
20 U.S.C. § 1414(d)(1)(A)(i)(VIII).
Transition services must
also be included in an IEP when a child is moving from school to
post-school activities, to post-secondary activities, or to
vocational training.
“[T]he statutory provision of the IDEA
specifically addressing transition services does not mandate such
services when a transition from private to public school takes
place.”
James M. v. Hawaii, Dep’t of Educ., Civ. No. 10-00369
LEK, 2011 WL 1750718, at *11 (D. Haw. Feb. 25, 2011) (quoting
B.B. v. Hawaii, Dep’t of Educ., 483 F. Supp. 2d 1042, 1056 (D.
Haw. 2006)).
In L.M. v. Hawaii, Dep’t of Educ., Civil No. 05-00345
ACK/KSC, 2006 WL 2331031, at *16 (D. Haw. Aug. 9, 2006), another
judge in this district stated, “While no transition plan is
required by the IDEA, it is evident from the testimony of various
individuals and from the IEP that a transition plan is desirable
in order to minimize Student's educational regression and to
stabilize Student emotionally.”
That case addressed the adequacy
12
of an existing transition plan.
Id. at *15.
Deferring to the
hearings officer’s finding, Judge Alan Kay concluded that the
plan was adequate.
Id. at *16.
See also B.B., 483 F. Supp. 2d
at 1057 (addressing whether an existing transfer plan was
adequate and stating, “The IDEA does not mandate the creation of
a specific transition plan when a student moves from a private
placement to a public school, but in some cases, the
knowledgeable education experts agree that a particular student
would benefit from such a plan.”).
In E.Z.-L. v. New York City Department of Education,
the United States District Court for the Southern District of New
York stated that “there is no requirement in the IDEA for a
‘transition plan’ when a student moves from one school to
another.”
762 F. Supp. 2d 584, 599 (S.D.N.Y. 2011) (citing
Robert B. v. W. Chester Area Sch. Dist., 2005 WL 2396968, at
*8–9, (E.D. Pa. Sept. 27, 2005)).
In E.Z.-L., the administrative
hearings officer recognized that a transition plan was not
required by statute in an IEP but noted that the IEP should have
included specific services to assist the student’s transition to
a new school.
Id.
The hearings officer ultimately concluded
that the school district’s failure to include such services in
the IEP did not deny a FAPE because the support services would
have been discussed elsewhere.
Id.
On appeal, the district
court agreed that the school district was not required to create
13
a transition plan, and that the school district’s failure to
identify transition services in the IEP did not result in the
denial of a FAPE.
Id.
The district court did not expressly rule
on the issue of whether the administrative hearings officer’s
conclusion that the IEP should have included transition services
was correct.
Id.
The lack of transition services in an IEP was also
discussed in Park Hill School District v. Dass, 655 F.3d 762, 766
(8th Cir. 2011).
In that case, the Eighth Circuit disagreed with
the student’s parents that the lack of a transition plan in an
IEP amounted to the denial of a FAPE.
The Eighth Circuit stated,
“The absence of IEP provisions addressing transition . . . issues
does not, standing alone, violate the IDEA or deprive the
disabled child of a FAPE.”
(citations omitted).
Id.
The Eighth
Circuit did not, however, go so far as to say that the lack of a
transition plan could never be an IDEA violation.
Instead, in
dicta, the Eighth Circuit said that the absence of provisions
regarding transition “was at most a procedural, not a substantive
error.”
Id. (citations omitted).
The Eighth Circuit reversed
the administrative decision, which had concluded that the lack of
a transition plan resulted in the denial of a FAPE, noting that
the administrative panel had failed to consider the preparation
of a transition plan subsequent to development of the IEP.
at 767.
14
Id.
In the present case, the AHO expressly recognized that
the transition plan Parents sought in connection with C.B.’s move
from Horizons back to a public school was something the DOE was
not obligated to include in the IEP.
However, the AHO appears to
have concluded that, if transition services could be viewed as
being among C.B.’s “unique needs,” the DOE’s failure to discuss
transition services and include a transition plan in the IEP
constituted a failure to provide a FAPE.
This conclusion was not
accompanied by citations to authority and appears to nullify the
very recognition by the AHO that the IDEA does not require
transition services to be included in the IEP.
The DOE had a
transition plan separate from (and subsequent to) the IEP.
Thus,
the absence of an IDEA provision requiring that C.B.’s IEP
include a transition plan did not mean C.B.’s transition needs
were ignored.
Parents have not argued that there is any
substantive deficiency in the transition plan of December 2,
2010.
Of course, the IDEA does indeed require the DOE to
address the unique needs of a child, and a child may well have
transition needs.
The Eighth Circuit in Park Hill even stated
that a failure to address transition needs might at most
constitute a procedural violation of the IDEA.
But to the extent
§ 1414 bars requiring an IEP to include information not expressly
required by law, requiring a transition plan in an IEP would be
15
an end-run around that bar.
If that bar and the “unique needs”
provision are to be read as compatible, it appears to this court
that the IDEA must be read as addressing a child’s unique needs
in the areas that the IDEA requires an IEP to address.
Otherwise, a particular child’s “unique needs” could eliminate
any limit to the scope of an IEP.
The court stresses that its intent is not to diminish
the need for transition services, which may be highly important.
The court is instead concerned about limiting violations of the
IDEA to the terms of the IDEA itself.
Not every denial of
services constitutes a denial of a FAPE, and no statutory
provision requires that a transition plan be included in an IEP.
At the hearing before this court on April 24, 2012,
C.B.’s counsel expressed concern that the DOE had allegedly
declined to discuss C.B.’s need for transition services at the
IEP meeting.
C.B.’s counsel noted that a parent might not
realize that, separate from an IEP meeting, discussion about
transition services could occur.
Even if the IDEA does not
require the DOE to discuss transition services at an IEP meeting,
the court agrees that it could be helpful for the DOE to assure
parents that a separate meeting on transition services will be
scheduled.
C.B. appears to be complaining that the DOE should
have displayed a more cooperative attitude toward Parents.
16
That,
however, is a matter that in this case did not implicate a denial
of a FAPE.
B.
One-to-One Paraprofessional Services.
The court agrees with the DOE that the AHO erred in two
respects related to the paraprofessional services.
First, the AHO erred by considering issues that C.B.
had not raised in his due process hearing complaint.
Section
1415(f)(3)(B) of the United States Code limits the subject matter
of an impartial due process hearing held pursuant to the IDEA to
issues raised in a due process complaint:
“The party requesting
the due process hearing shall not be allowed to raise issues at
the due process hearing that were not raised in the notice filed
under subsection (b)(7), unless the other party agrees
otherwise.”
20 U.S.C. § 1415(f)(3)(B).
Diego, 93 F.3d at 1465
See also Cnty. of San
(“The scope of the administrative hearing
. . . is limited to the ‘complaint’ raised to obtain the
hearing.”); James M., 2011 WL 1750718, at *12 (“The Ninth Circuit
has also held that review in IDEA cases is specifically limited
to the issues raised in the administrative complaint.” (citing
Cnty. of San Diego, 93 F.3d at 1465)).
C.B.’s due process hearing request complained that, in
using the word “daily,” a word Parents said was “open to
interpretation,” the IEP of October 28, 2010, had failed to state
the frequency of “one to one professional support.”
17
AR at 4.
The DOE argues that the AHO expanded C.B.’s request beyond the
frequency of services and considered whether the IEP team had
also refused to allow Parents to discuss both the qualifications
of the paraprofessional at the IEP meeting and the substance of
C.B.'s paraprofessional services.
The DOE contends that it did
not agree to allow Parents to raise those substantive complaints
at the administrative hearing.
At the administrative hearing, the AHO received
testimony about the frequency of the paraprofessional services,
the substance of those services, and the qualifications of the
paraprofessional.
C.B. does not argue that, notwithstanding the
relaxed evidentiary rules usually applied in administrative
proceedings, the DOE should have known from that testimony that
the AHO would rely on it in issuing her ruling.
The AHO indeed
based her ruling at least in part on that evidence.
For example, responding to questioning from Defendants’
counsel, C.B.’s father testified that Parents had asked the IEP
team to write the paraprofessional’s credentials into the IEP.
Transcript of Proceedings (“Transcript”) at 27:11-25.
In her
Decision, the AHO stated that “the substance of Student’s
paraprofessional services--the credentials and/or qualifications
of the individual providing these services; the consistency of
the 1:1 services provided to Student; and the amount of services
18
Student would receive during the day--was a major concern for
Parents.”
Decision at 18.
She found that Parents had requested information about
the paraprofessional services, such as information pertaining to
the frequency of the services, as well as the credentials of the
professional, but that this information was not provided to
Parents.
Id.
She ultimately concluded:
The fact that Student’s paraprofessional
services would be provided to him “daily” or
“throughout the day”, combined with the lack
of this information provided to Parent[s] in
this case, especially in light of Student’s
previous problems with paraprofessional
services and regression at the Home School,
is a procedural violation of the IDEA. The
October 28, 2010 IEP stated the reasons that
Student required paraprofessional services,
but did not state, nor was it fully
contemplated or discussed at the IEP meeting,
what the substance of Student’s
paraprofessional services would be.
Id. at 19.
The AHO appears to have held that the DOE procedurally
violated the IDEA by refusing to provide Parents with information
about both the frequency of services and the substance of the
services, including the credentials and the qualifications of the
paraprofessional.
C.B.’s due process complaint, however, raised
only the frequency of the paraprofessional services, not the
substance of the services.
It is unclear whether the AHO would
have determined that the DOE had violated the IDEA if her
19
conclusion had been properly limited to the issue of the
frequency of the paraprofessional services.
The court turns now to the separate issue of whether
the DOE denied C.B. a FAPE on the frequency ground that was
indeed raised by C.B. in his due process hearing complaint.
C.B.
complained that the IEP of October 28, 2010, “fails to identify
the frequency of the service of the one to one professional
support.”
“An individualized educational program is a ‘formal,
written offer [that] creates a clear record that will do much to
eliminate troublesome factual disputes.’”
J.L. v. Mercer Island
Sch. Dist., 592 F.3d 938, 952 (9th Cir. 2009) (quoting Union Sch.
Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (modification
in original)).
Under the IDEA, an IEP must include “a statement
of the special education and related services and supplementary
aids and services . . . to be provided to the child.”
§ 1414(d)(1)(A)(i)(IV).
20 U.S.C.
The IEP must state the “anticipated
frequency, location, and duration of those services.”
Id.
§ 1414(d)(1)(A)(i)(VII).
Discussing a comment regarding 34 C.F.R.
§ 300.320(a)(7), which mirrors § 1414(d)(1)(A)(i)(VII), the
Federal Register states:
What is required is that the IEP include
information about the amount of services that
will be provided to the child, so that the
level of the agency's commitment of resources
will be clear to parents and other IEP Team
members. The amount of time to be committed
20
to each of the various services to be
provided must be appropriate to the specific
service, and clearly stated in the IEP in a
manner that can be understood by all involved
in the development and implementation of the
IEP.
Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children With Disabilities,
Analysis of Comments and Changes, 71 Fed. Reg. 46,667 (Aug. 14,
2006).
C.B. argues that the October 2010 IEP reference to the
“daily” provision of one-to-one paraprofessional services did not
sufficiently state how frequently C.B. was to receive those
services.
In J.L., the parents of a child with learning
disabilities argued that an IEP had not sufficiently specified
the amount of time to be devoted to their child’s services when
it provided for 972 minutes per week of specially designed
instruction in reading, writing, mathematics, study skills, and
transitions.
592 F.3d at 943.
The Ninth Circuit held that the
“lump-sum number” was sufficient because the services to be
provided to the student were “access-based” modifications to an
education program.
Id. at 953.
That is, the services depended
on access to books on tape, extended time for exams, and access
to a peer note-taker.
Id.
Because the modifications were
access-based and the child presumably had unlimited access to
each accommodation, the Ninth Circuit said that it was not
21
reasonable for the school district to predict the amount of time
the student would actually use each accommodation.
Id. at 952.
By contrast, in Bend LaPine School District v. K.H.,
2005 WL 1587241, at *9-10 (D. Or. June 2, 2005), the United
States District Court for the District of Oregon agreed with an
administrative hearings officer that an IEP stating that
specially designed instruction would be provided “throughout the
school day” was too vague and indefinite, and failed to “make
clear to parents or other IEP team members the District's
specific commitment of resources.”
The court understands Parents’ concern about how often
C.B. would receive one-to-one paraprofessional services.
The
term “daily” could be analogized to the words “throughout the
school day” that were deemed insufficient in Bend LaPine.
Moreover, the focus in J.L. on the access-based nature of the
services that were assigned a lump-sum number of minutes could be
read as suggesting that more specificity is required in other
contexts.
The term “daily” suggests a very broad range.
However, the court need not here decide whether the
term “daily” is sufficient, as C.B. does not show that the use of
the term resulted in the denial of a FAPE.
Although C.B. argues
that a violation of 20 U.S.C. § 1414(d)(1)(A)(i)(VII) is a
substantive violation of the IDEA, in J.L., the Ninth Circuit
suggested that a failure to sufficiently specify the frequency of
22
services was a procedural, not substantive, violation.
592 F.3d
at 953 (“Even if the District did commit a procedural violation
by failing to specify minutes, not every procedural violation
results in the denial of a free appropriate public education.”).
“A procedural violation denies a free appropriate public
education if it results in the loss of an educational
opportunity, seriously infringes the parents' opportunity to
participate in the IEP formulation process or causes a
deprivation of educational benefits.”
Id. (citing N.B. v.
Hellgate Elementary Sch. Dist., ex rel. Bd. of Directors,
Missoula Cnty., Mont., 541 F.3d 1202, 1208 (9th Cir. 2008)).
In J.L., the plaintiffs failed to show how the student
was prejudiced by the school district’s failure to specify the
amount of services.
Id.
The Ninth Circuit said:
[Plaintiffs] do not allege that [the child]
was denied an educational benefit or missed
an educational opportunity. Nor do they show
that the parents' ability to participate in
the individualized educational program
formulation process was harmed. Indeed, the
record suggests that even though the
individualized educational program did not
list the amount of services, everyone
involved in the individualized educational
team--including [the child’s] parents--knew
of the amounts.
Id.
C.B. argues that the DOE’s failure to discuss how often
during the day C.B. would receive one-to-one paraprofessional
services infringed on Parents’ opportunity to participate in the
23
IEP process.
C.B. contends that, after the IEP meeting on
October 28, 2010, C.B.’s father did not know if C.B. was going to
have a full-time one-to-one aide.
C.B. says that the IEP team’s
refusal to define the term “daily” at that meeting impeded
Parents’ participation.
The record does not demonstrate the alleged impediment.
C.B.’s father testified at the administrative hearing that he had
asked the DOE how long the paraprofessional would spend with C.B.
each day, and that the response was:
somebody there to watch him.”
“There would always be
Transcript at 28:14-17.
father says that this was nonresponsive.
C.B.’s
However, the record
does not indicate that C.B.’s father pressed the DOE for more
information about the frequency of the paraprofessional services,
or indicated in any lesser manner that he was unsatisfied with
the DOE’s statement.
At the hearing before this court, C.B. argued that the
DOE’s response was evasive on its face and that the IEP team
should have known that it had not provided C.B.’s father with the
information requested.
Certainly, a more helpful response would
have indicated how many minutes or hours per day the
paraprofessional would be spending with C.B., or would have
clarified whether the paraprofessional planned to work with C.B.
on an as-needed basis.
But the court’s inquiry here is not as to
what would have been the optimum response.
Instead, the court is
determining whether the response denied C.B. a FAPE.
24
What C.B. is asking this court to do is to require the
DOE to recognize on its own when a parent is not satisfied that
the DOE has provided information requested by the parent.
C.B.’s
argument would be persuasive with respect to a substantive
violation of the IDEA.
In J.L., however, the Ninth Circuit
suggested that this kind of issue was procedural.
at 953.
592 F.3d
With a procedural violation, assuming one occurred here,
this court takes a different approach.
C.B. would require the
DOE to proactively review everything it says even if the parent
does not communicate concern.
C.B. would make a mind-reader of
the DOE with respect to an alleged procedural violation.
The
court declines to place upon a school the burden of recognizing a
parent’s concern about the inadequacy of a school’s response to
the parent’s inquiry when the parent has given no indication of
concern.
As the United States District Court for the District of
Columbia recognized in Schoenbach v. Dist. of Columbia, parental
“input is critical in assuring that disabled children get the
services they need.”
309 F. Supp. 2d 71, 89 (D.D.C. 2004)
(citing Rowley, 458 U.S. at 209 (“[I]ndividualized planning
conferences are a way to provide parent involvement and
protection to assure that appropriate services are provided to a
handicapped child.”)).
given the chance.
“But parents must talk, or complain, when
Timely input can allow a school district to
respond meaningfully to parental requests.”
25
Id.
See also
Ashland, 587 F.3d at 1184 (holding that the IDEA permitted a
district court to deny reimbursement when the parents failed to
give the school district notice of their objections to the IEP in
issue).
The present record does not show that the DOE’s failure
to provide more detail on the frequency of paraprofessional
services denied C.B. a FAPE under the circumstances of this case.
The court reverses the AHO’s Decision with respect to
whether the DOE denied C.B. a FAPE.
Because reimbursement under
20 U.S.C. § 1412(a)(10)(C)(ii) is only warranted when there has
been a denial of a FAPE, the DOE is not required to reimburse
Parents for the costs of C.B.’s attendance at AMS under that
provision.
The court need not reach the issue of whether AMS is
an appropriate placement for C.B.
VI.
CONCLUSION.
The AHO erred in concluding that C.B. was denied a
FAPE.
The court concludes: (1) the DOE was not required under
the IDEA to address C.B.’s transition needs or develop a
transition plan in the IEP or at the meeting held to develop that
IEP; (2) the AHO erred by considering the substance of C.B.’s
paraprofessional services when C.B. complained about only the
frequency of those services in his impartial due process hearing
complaint; (3) any failure of the IEP of October 28, 2010, to
sufficiently state the frequency of the one-to-one
paraprofessional services was a procedural violation of the IDEA
that did not deny C.B. a FAPE.
The AHO’s Decision is reversed.
26
This order does not affect the “stay put” issue
previously remanded to the AHO.
The parties have agreed that
entry of judgment should occur after this court addresses the
result of that partial remand.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 1, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
State of Hawaii, Dep’t. of Educ. v. C.B.,; Civil No. 11-00576 SOM/RLP; ORDER REVERSING
THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER.
27
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