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

Filing 31

AMENDED 25 ORDER AFFIRMING IN PART AND VACATING AND REMANDING IN PART THE HEARINGS OFFICERS OCTOBER 6, 2011 DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on September 10, 2012. (bbb, )CERTIFICATE OF SERVICEPartici pants 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
I.T., by and through his
parents Renee and Floyd T.,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
STATE OF HAWAII,
)
)
Defendant.
)
_____________________________ )

CIVIL NO. 11-00676 LEK-KSC

AMENDED ORDER AFFIRMING IN PART AND VACATING AND REMANDING
IN PART THE HEARINGS OFFICER’S OCTOBER 6, 2011 DECISION
Before the Court is an appeal by Plaintiffs I.T.
(“Student”), by and through his parents Renee and Floyd T.1
(“Plaintiffs”), of the Administrative Hearings Officer’s
(“Hearings Officer”) October 6, 2011 Findings of Fact,
Conclusions of Law and Decision (“Decision”).

Plaintiffs filed

their Opening Brief in the instant case on March 12, 2012.
Defendant the Department of Education, State of Hawai`i
(“Defendant” or “the DOE”) filed its Answering Brief on April 26,
2012, and Plaintiffs filed their Reply Brief on May 10, 2012.
The Court heard oral argument in this matter on June 25, 2012.
Appearing on behalf of Plaintiffs was John Dellera, Esq., and
appearing on behalf of Defendant was James Raymond, Esq.

1

The Court will refer to Renee T. as “Mother” and to Renee
T. and Floyd T. collectively as “Parents”.

Pursuant to this Court’s order, on August 14, 2012, Plaintiffs
filed a supplemental brief regarding compensatory education, and
Defendant filed its supplemental brief on August 28, 2012.

After

careful consideration of the briefs, the arguments of counsel,
and the relevant legal authority, the Decision is HEREBY AFFIRMED
IN PART AND VACATED IN PART for the reasons set forth below.

The

Decision is VACATED insofar as the Court CONCLUDES that:
1) Defendant violated the Individuals with Disabilities Education
Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq., by failing to
evaluate Student for a suspected auditory processing disorder,
although this violation did not deny Student a Free Appropriate
Public Education (“FAPE”) because the evidence ultimately
established that he did not have the disorder; and 2) Defendant
denied Student a FAPE by failing to address his speech/language
needs until formulation of the August 23, 2010 Individualized
Education Programs (“IEP”).

The Court GRANTS Plaintiffs’ request

for compensatory education as a remedy for the denial of FAPE and
REMANDS this matter to the Hearings Officer for a determination
of the form of the compensatory education.

The Decision is

AFFIRMED in all other respects.
BACKGROUND
I.

Factual and Administrative Background
At the time of the Decision, Student was ten years old

and in the sixth grade at Loveland Academy (“Loveland”).
2

He has

been diagnosed with attention deficit hyperactivity disorder
(“ADHD”), combined type, mixed receptive-expressive language
disorder, reading order, dyslexia, and a generalized anxiety
disorder.

Student’s home school is Kaleiopuu Elementary School

(“Home School”), which he attended from pre-school to the 20092010 school year, when he was in the fourth grade.

Student began

attending Loveland in mid-July 2010, and he officially enrolled
there in November 2010.

[Decision at 1, 4.2]

On February 24, 2011, Plaintiffs filed their Request
for Impartial Due Process Hearing (“RIH”) with the DOE.
[Administrative Record on Appeal (“ROA”) at 4-7.]

The RIH

asserts, inter alia, that Student’s March 3, 2009 IEP,
February 22, 2010 IEP, and August 23, 2010 IEP3 (collectively
“the Contested IEPs”) denied Student a FAPE and that the DOE
refused to acknowledge or address Student’s mental
health/behavioral issues.

[Id. at 6.]

The RIH sought the following:
1.

A finding that the March 3, 2009, February
22, 2010, and May 26, 2010, June 22, 2010 and
August 23, 2010 (collectively, “August 23,
2010”) IEPs do not offer FAPE to [Student]

2

The Decision is Exhibit 20 to the Administrative Record on
Appeal at 177-200. The Decision states that Student was not
enrolled at Loveland until November 2011, but this appears to be
a typographical error. [Decision at 4.]
3

Student’s IEP team formulated the August 23, 2010 IEP at
three meetings held on May 26, 2010, June 22, 2010, and August
23, 2010. [Decision at 20.]
3

and the DOE has not provided appropriate
services necessary for him to obtain a
meaningful benefit in the public school for
the 2009-2010 and 2010-2011 school years;
2.

A finding that the DOE committed procedural
and substantive violations of the IDEA;

3.

Reimbursement to Petitioners and/or payment
to Loveland Academy for school tuition and
related service expenses, including
transportation, at Loveland Academy for the
extended school year 2010, 2010-2011 school
year, and extended school year 2011 pursuant
to 20 U.S.C. 1412(a)(10((C)(iii) [sic];

4.

[Student] requests multi-sensory reading and
math instruction and afternoon tutoring in
reading and math;

5.

[Student] needs an increase in his speech
therapy services provided by a qualified
speech language pathologist;

6.

A Functional Behavioral Assessment needs to
be conducted and Behavioral Support Plan
needs to be completed and implemented;

7.

[Student] requires mental health services
available to him throughout his school day;

8.

[Student] requires an appropriate afterschool
program . . . ;

9.

Reimbursement and/or payment for the
psychological evaluation conducted by Karen
Tyson, Psy.D.;

10.

Compensatory education;

11.

Attorneys’ fees and costs.

[Id. at 6-7.]
The Hearings Officer convened the due process hearing
on July 25, 2011, and the evidentiary portion of the hearing

4

continued on July 26, 27, and 28, 2011.
written closing arguments.

The parties filed

[Decision at 3-4.]

The Hearings Officer framed the issues presented in the
RIH as whether the Contested IEPs:
-

failed to adequately detail Student’s
strengths and needs in the PLEPs,[4] and that
many of the goals and objective were
inadequate or inappropriate;

-

offered services that were not appropriate or
not properly implemented;

-

failed to acknowledge or address Student’s
mental health or behavioral issues; and

-

offered services in the DOE public school
setting that were not appropriate for Student
to obtain meaningful benefit for the 20092010, and 2010-2011 school years.

[Id. at 13-14.]
A.

March 3, 2009 IEP
As to the appropriateness of the program and placement

offered in the March 3, 2009 IEP, the Hearings Officer concluded
as follows:
Petitioners contend that the DOE failed to
assess Student’s possible auditory processing
disorder. Psychologist P.M.’s[5] February 2009
report mentions that [Central Auditory Processing
Disorder (“CAPD”)] should be ruled out. However,
at the time the March 3, 2009 IEP was developed,
Mother admitted that she had not provided the IEP
team with psychologist P.M.’s report.

4

“PLEPs” are the Present Levels of Educational Performance.

5

The Decision refers to Peggy Murphy-Hazzard, Ph.D. as
“psychologist P.M.” [Decision at 2.]
5

. . . .
The Hearings Officer concludes that
Petitioners have not shown that the DOE had
sufficient information about Student having a CAPD
to have a duty to conduct a CAPD evaluation for
the March 3, 2009 IEP. The DOE can not [sic] be
expected to consider a report that it had not
received. Additionally, as evidenced by the
March 3, 2009 [Prior Written Notice (“PWN”)], the
DOE was willing to consider psychologist P.M.’s
report once it was received.
Further, Respondent presented evidence that
an auditory processing disorder evaluation was not
needed. As testified by the SSC,[6] the DOE
audiologist had opined that there was no need for
Student to have an auditory processing evaluation.
Additionally, parental consent is needed before an
auditory processing evaluation can be done. No
parental consent for an auditory processing
evaluation was given.
Petitioners next contend that the March 3,
2009 IEP did not address Student’s behaviors. In
their Request, Petitioners state that Student’s,
[sic] “behaviors occur several times a day”.
However, special education teacher G.M.[7]
testified that Student progressed in all areas
during his 3rd grade school year at the home
school that needed to be addressed. The Hearings
Officer concludes that Petitioners have not shown
that Student exhibited behaviors at the home
school that needed to be addressed.
[Id. at 16-17.]
In addition, the Hearings Officer also concluded that:
•Student’s PLEPs were appropriate, even though they did not
address Student’s behaviors, because there were no areas of

6

The Decision refers to Traciann Dolim, the student
services coordinator, as the “SSC”. [Id. at 1.]
7

The Decision refers to Glorilynn Manding as “special
education teacher G.M.” [Id.]
6

behavioral concern;
•the goals and objectives were appropriate, even though they did
not address Student’s alleged speech and communication
difficulties, because the DOE conducted a speech/language
assessment in February 2009, and Student’s March 3, 2009 IEP
stated that the IEP team would amend the IEP to add language
services after the team received Dr. Murphy-Hazzard’s
report;
•Student did not need speech/language services at the time the
IEP team formulated the March 3, 2009 IEP because he could
“functionally communicate” and he could perform even
challenging tasks after verbal prompts; and
•the March 3, 2009 IEP offered an appropriate placement in the
least restrictive environment.
[Id. at 17-18.]
B.

February 26, 2010 IEP
As to the appropriateness of the program and placement

offered in the February 26, 2009 IEP, the Hearings Officer
concluded as follows:
At the time the February 26, 2010 IEP was
created, the DOE had psychologist P.M.’s report
that recommended CAPD be ruled out. However,
psychologist P.M. did not testify, and there was
no explanation why CAPD should be ruled out. In
fact, psychologist P.M.’s report of a BioMAP test
implies that Student did not have an auditory
processing disorder.
In their rebuttal brief, Petitioners argue
that the DOE has a duty to evaluate when the DOE
has a reason to suspect a disability. However,
the Hearings Officer concludes that, because
Student had not manifested any need for a CAPD
evaluation in the 5 previous years he had attended
the home school, the fact that psychologist P.M.
mentions that CAPD should be ruled out does not
place the DOE on notice that Student has a
suspected disability in this area.

7

[Id. at 19.]
The Hearings Officer noted that Plaintiffs raised the
same challenges to the February 26, 2010 IEP that they raised to
the March 3, 2009 IEP.

Mother, however, testified that she did

not voice her disagreement with the February 26, 2010 IEP to the
team because she felt like she was not allowed to participate and
because her input was not included in the IEP.

In particular,

the February 26, 2010 IEP did not mention that Student “shuts
down” or that he has mental health needs.

[Id.]

The Hearings

Officer noted that the PLEPs did reflect Mother’s concerns about
Student’s homework.

Based on the classroom observations of

Student stated in the PLEPs, his special education teacher’s
testimony that Student did not exhibit any behavioral problems
and that Student’s speech and language were not areas of concern,
and Student’s progress in reading, the Hearings Officer concluded
that Student did not need speech/language services or behavioral
interventions in the February 26, 2010 IEP.

As with the March 3,

2009 IEP, the Hearings Officer concluded that the February 26,
2010 IEP offered Student an appropriate placement in the least
restrictive environment.
C.

[Id. at 19-20.]

August 23, 2010 IEP
As to the appropriateness of the program and placement

offered in the August 23, 2010 IEP, the Hearings Officer noted
that:

8

Mother testified that the DOE would not
consider psychologist P.M.’s report as it was too
old. However, both the SSC and special education
teacher E.P.[8] testified that at the May 26, 2010
meeting the team discussed psychologist P.M.’s
report but took the fact that it was over a year
old into consideration. Although psychologist
P.M.’s report mentions Student’s behaviors,
special education teacher E.P. testified that
behaviors and anxiety were not occurring in the
classroom. Mother admitted that although the SSC
offered to have Student assessed for CAPD, Mother
did not provide consent for an evaluation.
The SSC further testified that besides the
evaluations, the IEP team considers how Student is
doing at the home school.
[Id. at 20.]
In addition, the Hearings Officer also concluded that
Plaintiffs failed to establish that the PLEPs in the August 23,
2010 IEP were inaccurate because:
•Student’s PLEPs indicated that he was “functioning at a high
level” and this was consistent with both his math skills and
his fifth-grade-level ability to understand inferential
language;
•Student’s special education teacher, Ms. Parish, testified that
he did not exhibit problem behaviors in the classroom and
did not need mental health services; and
•Ms. Parish testified that Student progressed on his goals and
objectives during the 2009-2010 school year.
[Id. at 21.]

Similarly, because the DOE witnesses testified that

Student did not exhibit behavioral problems at school, the
Hearings Officer rejected Plaintiffs’ arguments that: the amount

8

The Decision refers to Esther Parish as “special education
teacher E.P.” [Decision at 1.]
9

of Student’s special education services and the amount of
speech/language therapy were inadequate; and Student needed
supplemental behavioral supports, such as counseling.

The

Hearings Officer also noted that witnesses from Loveland
testified that, when Student first attended the school, he did
not exhibit behavioral problems.

The behaviors began when he was

presented more difficult tasks, but the provision of a one-to-one
skills trainer helped Student tremendously.

The Hearings Officer

therefore concluded that the DOE did not have cause to believe
that Student needed behavioral or mental health services in the
August 23, 2010 IEP.

[Id. at 21-22.]

The Hearings Officer noted that Student’s fourth grade
general education teacher testified that Student “did well,
interact[ed] with his fellow students in small groups[,] . . .
made progress during the school year and although he sometimes
struggled with his work, Student was not withdrawn or isolative.”
[Id. at 22.]

The Hearings Officer also credited the testimony of

DOE speech and language pathologists that: the sixty minutes of
speech/language therapy included in the August 23, 2010 IEP was
appropriate for Student’s needs; Student’s communication goals
and objectives were appropriate; and the speech/language services
offered at Loveland were essentially the same as those the DOE
offered in the August 23, 2010 IEP.

The Hearings Officer

discounted the opinion of Plaintiffs’ privately retained

10

psychologist, Karen Tyson, Psy.D., that Student’s services were
not adequate and that Student needed behavioral supports, such as
counseling.

The Hearings Officer therefore concluded that

Plaintiffs had not established that the August 23, 2010 IEP
offered Student inappropriate services.

As with the other IEPs,

the Hearings Officer concluded that the August 23, 2010 IEP
offered Student an appropriate placement in the least restrictive
environment.

[Id. at 22-23.]

The Hearings Officer ultimately concluded that
Plaintiffs failed to prove that the Contested IEPs denied Student
a FAPE and that Plaintiffs failed to establish procedural
violations of the IDEA.
the RIH.

The Hearings Officer therefore dismissed

[Id. at 24.]
The instant action followed.

II.

Plaintiffs’ Opening Brief
In their Opening Brief, Plaintiffs contend that the

Hearings Officer erred in dismissing their claims that:
(1) the educational program and placement offered
by the Department . . . in IEPs dated March 3,
2009, February 26, 2010, and August 23, 2010
denied I.T. a free appropriate public education
(“FAPE”); (2) Defendant committed procedural
violations of the IDEA by failing adequately to
consider the parent’s input at IEP meetings;
(3) Defendant failed to evaluate all suspected
disabilities; and (4) parent should be reimbursed
for or Defendant should pay tuition at Loveland
Academy commencing November 10, 2010 and the cost
of the neuropsychological evaluation conducted by
Karen Tyson dated February 19, 2011.

11

[Opening Br. at 1.]
Plaintiffs summarize the history of Student’s receipt
of services beginning with the Department of Health’s Zero-toThree program and continuing through his years at the Home School
and the formulation of his IEPs.

[Id. at 1-11.]

In particular,

Plaintiffs note that they obtained a neuropsychological
evaluation by Peggy Murphy-Hazzard, Ph.D., dated February 28,
2009 (“Murphy-Hazzard Report”), which indicated, inter alia, that
Student may have an anxiety disorder and that CAPD should be
ruled out.

[Id. at 3-5; ROA, Pets.’ Exh. 7 at 86-97.]

The IEP

team, however, did not discuss the Murphy-Hazzard Report until
May 26, 2010, and Student’s PLEPs did not mention the report
until August 23, 2010.

[Opening Br. at 6 (citing ROA, Pets.’

Exh. 2 at 20; 7/28/11 Hrg. Trans. (Vol. IV) at 608).]

Further,

as of May 26, 2010, neither Student’s general education teacher
nor his special education teacher had read the Murphy-Hazzard
Report.

[Id. at 10 (citing ROA, 7/27/11 Hrg. Trans. (Vol. III)

at 582, 546, 555).]
Plaintiffs emphasize that the DOE’s language assessment
report of Student by Christie Iraha, dated February 18, 2009
(“Iraha Report”), indicated that he was eligible for
speech/language services.

[Id. at 5-6; ROA, Pets.’ Exh. 4 at 69

(PWN dated March 3, 2009), Exh. 8 at 98-100 (Iraha Report).]
DOE, however, conditioned the commencement of services upon

12

The

receiving the information about CAPD in the Murphy-Hazzard
Report.

[ROA, Pets.’ Exh. 4 at 69.]

Thus, the IEP team did not

include speech/language services in Student’s IEP until
August 23, 2010.

[Id., Pets.’ Exh. 2 at 20.]

Plaintiffs point out that Mother raised Student’s
communication and behavioral issues at the February 26, 2010 IEP
team meeting, and she complained about Student’s lack of
progress.

[Opening Br. at 7 (citing ROA, 7/26/11 Hrg. Trans.

(Vol. II) at 359 (Mother’s testimony)).]

Student’s fourth grade

teacher, Glendene Otake, testified that he made only slight
progress in his general education subjects.

[Id. (citing ROA,

7/27/11 Hrg. Trans. (Vol. III) at 573-74).]

Ms. Otake used a

team approach in her class, involving students working in small
groups.

Ms. Otake observed that Student relied on other group

members to do most of the work, and she testified that Student
may need an educational aide to assist him.
did not assign Student an aide.

The DOE, however,

[Id. at 7-8 (citing ROA, 7/27/11

Hrg. Trans. (Vol. III) at 571-72 (Otake’s testimony); 7/26/11
Hrg. Trans. (Vol. II) at 353 (Mother’s testimony)).]

Mother

testified that Student’s self-esteem issues were aggravated by
the team approach, discouraging him from participating or asking
questions.

[Id. at 8 (citing ROA, 7/26/11 Hrg. Trans. (Vol. II)

at 353-54).]

13

Mother also testified that, at the end of the May 26,
2010 IEP team meeting, she notified the DOE that she would place
Student at Loveland at the DOE’s expense because the DOE had not
addressed his needs after all the years that she had voiced her
concerns. [Id. at 10 (citing ROA, Pets.’ Exh. 9 at 127; 7/26/11
Hrg. Trans. (Vol. II) at 385-86).]

On May 28, 2010, the DOE

suggested another meeting to address Mother’s concerns, but,
while speech/language services and goals were added in the
August 23, 2010 IEP, the IEP still did not address evaluating
Student for CAPD or mental health issues.

[Id. at 10-11 (citing

ROA, Pets.’ Exh. 9 at 126 (letter dated 3/17/11 to Parents from
the principal of the Home School)); ROA, Pets.’ Exh. 2
(August 23, 2010 IEP).]
Mother placed Student at Loveland for assessment in
July 2010, and she confirmed that fact in a letter to the DOE
dated September 27, 2010.

According to Mother’s testimony, the

DOE acknowledged the unilateral placement on September 30, 2010,
and Student officially enrolled at Loveland in November 2010.
[Id. at 11 (citing ROA, 7/26/11 Hrg. Trans. (Vol. II) at 395-96;
Resp.’s Exh. 17 at 187-88).]
Plaintiffs argue that the Hearings Officer erred in
rejecting their claim that the DOE failed to assess Student in
all areas of suspected disability because the DOE had ample
reason to suspect that Student had communication and behavioral

14

disabilities during the formulation of the Contested IEPs.

The

DOE, however, failed to conduct its own evaluations and refused
to consider evaluations that Plaintiffs provided.

In particular,

the fact that the DOE did not have a copy of the Murphy-Hazzard
Report at the March 3, 2009 IEP team meeting was not an adequate
ground to ignore Mother’s informed suspicions that Student may
have CAPD.

Plaintiffs argue that the failure to evaluate that

suspected disability prevented the team from developing an IEP
that was reasonably calculated to provide Student with a
meaningful educational benefit.

[Id. at 17-19.]

Plaintiffs also

assert that the Hearings Officer erred in concluding that Student
did not need mental health services.

The fact that his teachers

did not observe mental health issues does not mean that none
existed.

[Id. at 21-22.]
Plaintiffs argue that the Contested IEPs did not offer

Student a FAPE because: the goals and objectives were not
appropriate; they did not address his communication needs and
behavioral needs; and Student lost educational benefits because
his IEPs were not appropriate.

[Id. at 25-32.]

Insofar as

Plaintiffs contend that the DOE denied Student a FAPE, they ask
the Court to award reimbursement for Student’s placement at
Loveland, which Plaintiffs contend is a proper placement for
Student.

[Id. at 32-34.]

In addition, they ask the Court to

award compensatory education to remedy the denial of FAPE.

15

[Id.

at 34-35.]
Plaintiffs therefore urge the Court to vacate the
Decision and to enter judgment in their favor awarding them:
Student’s tuition and related costs at Loveland from November 10,
2010 until his placement is legally changed; reimbursement for
the evaluations conducted by Dr. Murphy-Hazzard and Dr. Tyson;
and reasonable attorneys’ fees and costs.

[Id. at 36.]

III. Defendant’s Answering Brief
In its Answering Brief, the DOE urges the Court to
affirm the Hearings Officer’s Decision.

The DOE argues that the

Court should afford considerable deference to the Decision
because the Hearings Officer: carefully considered and weighed
the evidence; provided detailed analysis in the Decision of the
facts and the law; was fully engaged in the evidentiary hearing;
clarified issues and carefully considered counsel’s objections at
the hearing; and was in the best position to weigh testimony and
assess the witnesses’ credibility.

[Answering Br. at 7.]

As to the failure to evaluate Student’s suspected CAPD,
the DOE argues that the Hearings Officer correctly concluded that
the DOE did not have enough information during the formulation of
the March 3, 2009 IEP to trigger a duty to evaluate Student for
CAPD.

The DOE argues that the statement in the March 3, 2009 IEP

that the team would amend the IEP to add language services upon
receipt of the Murphy-Hazzard report was an appropriate response.

16

[Id. at 8-9.]

The DOE notes that the IEP team did have the

Murphy-Hazzard Report at the February 26, 2010 team meeting, but
the DOE argues that the report did not conclusively indicate
CAPD.

The DOE emphasizes that, when a parent presents an

independent educational evaluation (“IEE”), the DOE is only
required to consider its results, and the DOE is not bound by the
conclusions therein.

[Id. at 9 (citing 34 C.F.R.

§ 300.502(c)(1); Haw. Admin. R. § 8-60-57(c)(1)).]

Further, on

June 22, 2010, the IEP team reviewed the Murphy-Hazzard Report
and agreed to send it with the DOE’s speech/language assessment
to an audiologist to get a recommendation on whether an
assessment for CAPD was warranted.

[Id. at 10 (citing ROA,

7/28/11 Hrg. Trans. (Vol. IV) at 622).]

Defendant argues that

Plaintiffs failed to meet their burden of proof on this issue
because the evidence ultimately established that Student does not
have an auditory processing disorder.

[Id. (citing ROA, 7/26/11

Hrg. Trans. (Vol. II) at 267).]
As to Plaintiffs’ argument that the DOE failed to
evaluate Student for suspected mental health issues, the DOE
argues that the IEP team properly considered the Murphy-Hazzard
Report’s findings about possible mental health issues as well as
input from Mother, Student’s advocate, and Student’s teachers,
but the team ultimately determined that Student did not require
mental health services.

[Id. at 11.]

17

As to the alleged denial of parental participation, the
DOE argues that this Court should not consider the issue because
Plaintiffs did not raise it in the RIH and the Hearings Officer
did not rule on it.

If this Court does decide to consider the

issue, the Court should reject Plaintiffs’ argument because the
record is full of examples of Mother’s participation in the IEP
formulation process.

[Id. at 17.]

As to the goals and objectives in the Contested IEPs,
the DOE emphasizes that the IEP team ultimately determines the
goals and objectives, which may not necessarily reflect what a
student’s parents contend the student needs.

[Id. at 19.]

Student’s care coordinators testified that, in general, a
student’s PLEPs are based upon classroom assessments,
standardized assessments, performance in the classroom, and
writing samples, in addition to information from the student’s
parents.

Thus, having considered all of the relevant

information, the IEP team determined that Student did not require
mental health services, and the team did not have to adopt mental
health goals.

[Id. at 20 (citing ROA, 7/27/11 Hrg. Trans. (Vol.

III) at 473, 476-77, 507-09).]

For similar reasons, the IEP team

did not have to adopt goals and objectives addressing CAPD.

[Id.

at 21.]
As to Plaintiffs’ argument that the Contested IEPs did
not provide sufficient speech/language services for Student’s

18

needs, the DOE argues that Plaintiffs are demanding the absolute
best educational program, which the DOE is not required to
provide.

[Id. at 21-22.]

The DOE acknowledges that the Iraha

Report in February 2009 indicated that Student would benefit from
language services, but the services were not included in the
March 3, 2009 IEP.

The DOE states that there were several

factors contributing to the delay, one of which was that the team
was expecting Plaintiffs to provide the Murphy-Hazzard Report
after the March 3, 2009 meeting.

[Id. at 22.]

At the hearing,

Ms. Iraha and the DOE speech and language pathologist both
testified that the delay in implementing the language services
had minimal impact on Student because he had functional
communication skills.

[Id. at 22-23 (citing ROA, 7/28/11 Hrg.

Trans. (Vol. IV) at 597-98, 612).]

The DOE also argues that

Student’s educational progress during the fourth grade also
indicated that the delay had minimal impact.

[Id. at 23-24

(citing ROA, 7/27/11 Hrg. Trans. (Vol. III) at 537, 573-74;
Resp.’s Exh. 11).]

The DOE therefore contends that, in spite of

the delay in providing services, the Contested IEPs were
reasonably calculated to enable Student to receive educational
benefits.

[Id. at 25.]
The DOE also argues that Student did obtain educational

benefits at the Home School during the years at issue.
Ms. Manding, Ms. Otake, and Ms. Parish testified that Student

19

made progress, and DOE psychologist, Renee Bergeron, Ph.D.,
testified that, based on her review of Student’s records and her
interviews with Student’s teachers, she could not agree with
Dr. Tyson’s conclusion that Student had not obtained sufficient
benefits from his education.

[Id. at 25-26 (citing ROA, 7/27/11

Hrg. Trans. (Vol. III) at 489-90, 534, 573-74; 7/28/11 Hrg.
Trans. (Vol. IV) at 640; Resp.’s Exh. 11).]

The DOE argues that

the Court should defer to the Hearings Officer’s credibility
determinations and affirm the Hearings Officer’s findings that
Student received educational benefits during the third and fourth
grade at the Home School.

[Id. at 27.]

The DOE argues that this Court need not reach the issue
of reimbursement for Loveland expenses because Plaintiffs have
not established that Student was denied a FAPE.

If the Court

does address the issue, the Court should find that Loveland was
not an appropriate placement for Student for the 2010-2011 school
year because: his behavior actually deteriorated when he enrolled
there; the speech/language services Student receives at Loveland
are not properly supervised; programs such as Loveland’s
Biopsychosocial Rehabilitation have no educational value; and the
mental health services there are not evidence-based treatments.
[Id. at 27-31.]

Even if this Court determines that Loveland was

an appropriate placement, the DOE argues that the tuition and
related costs of Loveland are unreasonable and that the Court

20

should only authorize payment for services specifically ordered
in this Court’s decision.

[Id. at 31-34.]

Finally, the DOE argues that Plaintiffs are not
entitled to either compensatory education or reimbursement for
the evaluations by Dr. Murphy-Hazzard and Dr. Tyson.

The DOE

contends that Student is not entitled to compensatory education
because he was not harmed by any violation of the IDEA.

The DOE

argues that this Court cannot consider Plaintiffs’ request for
expenses for the Murphy-Hazzard Report because Plaintiffs did not
include that request in the RIH.

Further, Plaintiffs did not

properly raise this issue in the Opening Brief.

They only

mention the request in passing in the conclusion.

The DOE argues

that Plaintiffs are not entitled to reimbursement for Dr. Tyson’s
evaluation because there is no evidence that Plaintiffs requested
an IEE because they disagreed with a DOE assessment, or that the
DOE failed to provide or denied the requested IEE.

The DOE also

argues that Plaintiffs did not properly raise this issue in the
Opening Brief.

[Id. at 34-37.]

The DOE therefore urges the Court to affirm the
Decision in its entirety.

IV.

Plaintiffs’ Reply Brief
In their Reply Brief, Plaintiffs emphasize that the IEP

team did not add language services upon receiving the Murphy21

Hazzard Report, which raised the issue of Student’s suspected
CAPD.

The IEP team did not consider the report until after

Mother notified the DOE of her intent to place Student at
Loveland.

Plaintiffs argue that the Murphy-Hazzard Report

conclusively stated that Student should be evaluated for CAPD.
Further, the fact that Plaintiffs obtained a private assessment
did not excuse the DOE from conducting its own assessment based
on Mother’s informed suspicions of Student’s CAPD.
1-2.]

[Reply Br. at

Plaintiffs raise the same arguments with regard to the

mental health issues indicated in the Murphy-Hazzard Report.
Plaintiffs also contend that the DOE was required to consider
Student’s behavioral problems outside of school, not just his
behavior in the classroom.

[Id. at 3-4.]

As to the delay in providing speech/language services,
which the DOE’s Iraha Report indicated Student needed, Plaintiffs
argue that the DOE has not presented any justification for the
delay.

They assert that Student lost a year-and-a-half of

special education and related services as a result.

[Id. at 4.]

As to the issue of Mother’s participation, Plaintiffs
assert that they raised the issue in the RIH by stating that the
DOE failed to take action despite being told of Student’s needs.
[Id. at 5 (citing ROA, Pets.’ Exh. 1 at 3).]

Plaintiffs also

point out that their Opening Brief identified evidence presented
to the Hearing Officer that Mother raised concerns at the IEP

22

team meetings, but the team did not address her concerns.

[Id.

at 5.]
Plaintiffs reiterate that the Contested IEPs were
inadequate because they did not address Student’s communication
and behavioral disorders.

Plaintiffs argue that the failure to

include speech/language services in the IEP for a year-and-a-half
denied Student a basic floor of opportunity.

Plaintiffs

emphasize the evidence identified in the Opening Brief that
Student only made trivial educational progress during the third
and fourth grades.

Plaintiffs therefore argue that Student did

not obtain an educational benefit and that the Hearings Officer
erred in concluding that the Contested IEPs offered a FAPE.

[Id.

at 6-10.]
As to the DOE’s argument that Loveland is not an
appropriate placement, Plaintiffs argue that Student exhibited
the behavioral problems which occurred at Loveland prior to his
transfer there and that Mother reported those problems to the IEP
team.

Further, Plaintiffs emphasize that Student has made

meaningful educational progress at Loveland.

[Id. at 10.]

Plaintiffs argue that Loveland does not have to meet state school
or licensing standards for Plaintiffs to obtain reimbursement.
[Id. at 11 (citing Florence Co. S.D. v. Carter, 510 U.S. 7, 14
(1993)).]

Plaintiffs also argue that the DOE has not presented

any evidence proving that the tuition and costs at Loveland are

23

unreasonable.

[Id. at 11.]

Plaintiffs argue that they have shown that they are
entitled to compensatory education for the failure to implement
language services for one-and-a-half years, the failure to assess
Student for all areas of suspected disability, and the failure to
address all of Student’s needs.

Plaintiffs argue that the DOE’s

failure to provide necessary services is sufficient proof that
Student lost educational opportunities.

[Id. at 16-17.]

Finally, Plaintiffs argue that they are entitled to
reimbursement for both the Murphy-Hazzard Report and Dr. Tyson’s
evaluation and that they sufficiently raised both issues in the
Opening Brief.

Plaintiffs state that the Murphy-Hazzard Report

was an independent evaluation under 34 C.F.R. § 300.502 and that
they had to obtain the Tyson evaluation because the DOE
complained that the Murphy-Hazzard Report was old.

Plaintiffs

acknowledge that they did not request an IEE, but they argue that
the DOE should not be rewarded for failing to evaluate Student’s
suspected disabilities.

[Id. at 17-18.]
STANDARDS

I.

IDEA Overview
“The IDEA is a comprehensive educational scheme,

conferring on disabled students a substantive right to public
education and providing financial assistance to enable states to
meet their educational needs.”

Hoeft ex rel. Hoeft v. Tuscon
24

Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing
Honig v. Doe, 484 U.S. 305, 310, 108 S. Ct. 592, 597, 98 L. Ed.
2d 686 (1988)).

It 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).
The IDEA defines FAPE as
special education and related services that –
(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(B) meet the 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 formulate and implement an IEP.
generally 20 U.S.C. § 1414.

See

The IEP is to be developed by an

“IEP Team” composed of, inter alia, school officials, parents,
teachers and other persons knowledgeable about the child.
§ 1414(d)(1)(B).

25

“Procedural flaws in the IEP process do not always
amount to the denial of a FAPE.”

L.M. v. Capistrano Unified Sch.

Dist., 556 F.3d 900, 909 (9th Cir. 2009) (citations omitted).
Once a procedural violation of the IDEA is identified, the court
“must determine whether that violation affected the substantive
rights of the parent or child.”

Id. (citations omitted).

“[P]rocedural inadequacies that result in the loss of educational
opportunity, or seriously infringe the parents’ opportunity to
participate in the IEP formulation process, clearly result in the
denial of a FAPE.”

Id. (alteration in original) (citations and

quotation marks omitted).
Compliance with the IDEA does not require school
districts to provide the “absolutely best” or “potentialmaximizing” education.

J.W. ex rel. J.E.W. v. Fresno Unified

Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010) (citation and
internal quotation marks omitted).

Rather, school districts are

required to provide only a “‘basic floor of opportunity.’”

Id.

(quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 201 (1982)).

The FAPE need only be

“appropriately designed and implemented so as to convey [the]
[s]tudent with a meaningful benefit.”

Id. at 433 (citations and

quotation marks omitted).
If a parent disagrees with the contents of an IEP, the
parent may challenge the contents thereof by demanding an

26

administrative due process hearing to be conducted by the local
or state educational agency.
(f)(1)(A).

See 20 U.S.C. § 1415(b)(6),

Parents may also send their student to a private

program and seek retroactive tuition reimbursement from the
state.

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-74

(2009) (citations omitted).

Where parents unilaterally withdraw

a child from public school, they “do so at their own financial
risk.”

Id. at 247 (citations and quotation marks omitted).

Parents challenging an IEP are entitled to reimbursement only if
“a federal court concludes both that the public placement
violated IDEA and the private school placement was proper under
the Act.”

Id. at 246 (citation and quotation marks omitted); see

also 34 C.F.R. § 300.148(c).
II.

Standard of Review
The standard for district court review of an

administrative decision under the IDEA is set forth in 20 U.S.C.
§ 1415(i)(2)(C), which provides:
In any action brought under this paragraph, the
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.
This standard requires that the district court give “‘due
weight’” to the administrative proceedings.
27

L.M., 556 F.3d at

908 (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 73 L. Ed. 2d 690
(1982)) (some citations omitted).

The district court, however,

has the discretion to determine the amount of deference it will
accord the administrative ruling.

J.W., 626 F.3d at 438 (citing

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

In reaching that determination, the court should

consider the thoroughness of the hearings officer’s findings,
increasing the degree of deference where said findings are
“‘thorough and careful.’”

L.M., 556 F.3d at 908 (quoting

Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892
(9th Cir. 1995)).

The district court should give “substantial

weight” to the hearings officer’s decision when the decision
“evinces his careful, impartial consideration of all the evidence
and demonstrates his sensitivity to the complexity of the issues
presented.”

Cnty. of San Diego v. Cal. Special Educ. Hearing

Office, 93 F.3d 1458, 1466-67 (9th Cir. 1996) (citation and
quotation marks omitted)).

Such deference is appropriate because

“if the district court tried the case anew, the work of the
hearing officer would not receive ‘due weight,’ and would be
largely wasted.”

Wartenberg, 59 F.3d at 891.

“[T]he ultimate

determination of whether an IEP was appropriate,” however, “is
reviewed de novo.”

A.M. ex rel. Marshall v. Monrovia Unified

Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing Wartenberg,

28

59 F.3d at 891).
A court’s inquiry in reviewing IDEA administrative
decisions is twofold:
“First, has the State complied with the procedures
set forth in the Act? And second, is the
individualized educational program developed
through the Act’s procedures reasonably calculated
to enable the child to receive educational
benefits?” [Rowley, 458 U.S. at 206-07]
(footnotes omitted). “If these requirements are
met, the State has complied with the obligations
imposed by Congress and the courts can require no
more.” Id. at 207.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir.
2010) (some citations omitted).
The burden of proof in IDEA appeal proceedings is on
the party challenging the administrative ruling.

Hood v.

Encinitas Union Sch. Dist., 486 F.3d 1099, 1103 (9th Cir. 2007)
(citations omitted).

The challenging party must show, by a

preponderance of the evidence, that the hearing decision should
be reversed.

J.W., 626 F.3d at 438 (citation omitted).
DISCUSSION

As a general matter, the Court FINDS that the Hearings
Officer’s findings and conclusions are “thorough and careful” and
therefore entitled to increased deference, with some exceptions
noted below.

See L.M., 556 F.3d at 908 (citation and internal

quotation marks omitted).

The Hearings Officer summarized the

testimony of, inter alia, Mother, Student’s teachers, and other
DOE staff, and created a detailed decision explaining his factual
29

findings and legal conclusions.

He made specific findings of

fact with respect to each of the Contested IEPs.
I.

Scope of the Decision & Scope of Review
At the outset, this Court must determine whether all of

the issues that Plaintiffs raise in their Opening Brief are
properly before this Court.
Defendant contends that Plaintiffs’ RIH did not raise
the claim that Defendant’s failure to consider and act upon the
concerns that Mother raised at the IEP team meetings constituted
a denial of her right to participate in the IEP formulation
process.

This Court agrees.

Although the RIH alleges that,

“[d]espite being told of [Student’s] mental health/behavioral
issues, the DOE has refused to acknowledge or address these
needs[,]” [ROA at 6,] this was not sufficient to state a claim
that Defendant denied Mother’s right to participate in the IEP
formulation process.

The IEP team’s ultimate disagreement with

Mother on the issue whether Student needed mental
health/behavioral services does not, in and of itself, constitute
a denial of Mother’s right to participate.

See, e.g., Ms. S. ex

rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1131 (9th
Cir. 2003) (recognizing that, although a school district must
develop an IEP with “meaningful parental participation,” a school
district “has no obligation to grant [a parent] a veto over any
individual IEP provision”), superseded by statute on other

30

grounds, 20 U.S.C. § 1414(d).

Insofar as Plaintiffs’ RIH did not

specifically raise the claim that Defendant denied Mother her
right to participate, the Hearings Officer could not consider the
issue.

See 20 U.S.C. § 1415(f)(3)(B) (“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.”); see also Haw. Admin. R. § 8-60-65(d) (same).

This

Court therefore CONCLUDES that Plaintiffs’ claim alleging the
denial of participation is not properly before this Court, and
this Court will not address that issue in the first instance.
In addition, Plaintiffs’ RIH only requests
reimbursement and/or payment for the Tyson Evaluation; [ROA,
Pets.’ Exh. 1 at 7;] it does not request reimbursement of
Plaintiffs’ costs to obtain the Murphy-Hazzard Report.

The

Hearings Officer therefore could not consider the request
regarding the Murphy-Hazzard Report, and Plaintiffs’ request is
not properly before this Court.

See § 1415(f)(3)(B); § 8-60-

65(d).
The Court now turns to the merits of the claims that
are properly before the Court.
II.

Duty to Assess in All Areas of Suspected Disability
Plaintiffs argue that the DOE’s failure to evaluate

Student’s “communication and behavioral disabilities” violated

31

the DOE’s duty to assess Student in all areas of suspected
disability.

[Opening Br. at 17-18.]

Section 1414 states, in pertinent part:
(a) Evaluations, parental consent, and
reevaluations
. . . .
(2)

Reevaluations
(A)

In general

A local educational agency shall ensure
that a reevaluation of each child with a
disability is conducted in accordance
with subsections (b) and (c)-(i) if the local educational agency
determines that the educational or
related services needs, including
improved academic achievement and
functional performance, of the
child warrant a reevaluation; or
(ii) if the child’s parents or
teacher requests a reevaluation.
. . . .
(b) Evaluation procedures
. . . .
(3) Additional requirements
Each local educational agency shall
ensure that-. . . .
(B) the child is assessed in all areas
of suspected disability[.]
20 U.S.C. § 1414(a), (b).

Plaintiffs argue that Defendant had

32

ample reasons to suspect that Student had additional
communication and behavioral disabilities beyond the disabilities
reflected in his prior IEPs.
A.

Suspicion of CAPD
The Murphy-Hazzard Report stated that data from

Student’s auditory processing test, intelligence scale, and other
sources, including Student’s history of language delays in early
childhood, “strongly suggest the presence of a receptive language
impairment.”

[ROA, Pets.’ Exh. 7 at 92.]

In her ultimate

diagnosis, Dr. Murphy-Hazzard wrote that CAPD should be ruled
out.

[Id. at 96.]

The Murphy-Hazzard Report also noted that

BioMAP testing9 by Yusnita Weirather, Au.D., on December 29, 2008
indicated that Student’s hearing in both ears was normal, as was
Student’s “neural encoding of speech in the auditory pathway[,]”
but that “these findings do not suggest a rule out for other
auditory processing disorders, meaning that [Dr. Weirather’s]
findings were inconclusive.”

[Id.]

Further, the Murphy-Hazzard

Report stated that Mother’s reports about Student’s anxious
behaviors were consistent with Student’s behavior during
Dr. Murphy-Hazzard’s testing.

The report states that “[i]t is

not uncommon for children with auditory processing problems

9

“BioMaAP testing is a neurophysiological test used to
identify deficits in processing sounds associated with learning
impairments and auditory processing disorders in children.”
[ROA, Pets.’ Exh. 7 at 92.]
33

and/or learning disorders to experience a high degree of
anxiety.”

[Id. at 94.]

Student also displayed a “significant

weakness” in the comprehension subtest of the intelligence scale,
and Dr. Murphy-Hazzard noted that “[i]t is not uncommon for
children who have been diagnosed with auditory processing
impairments to score poorly on this subtest.”

[Id. at 88.]

Although the date of the Murphy-Hazzard Report is
February 28, 2009, Dr. Murphy-Hazzard conducted the testing for
the report on four dates in November 2008.

[Id. at 86.]

Plaintiffs apparently reported Dr. Murphy-Hazzard’s concerns
about CAPD to the IEP team before the completion of the MurphyHazzard Report because the DOE’s January 29, 2009 PWN states that
the DOE was going to perform a language assessment because of,
inter alia, a “[p]ossibility of auditory processing.
physician report to come.”

Private

[ROA, Resp.’s Exh. 7 at 80.]

DOE

speech and language pathologist Christie Iraha testified that the
SSC asked her to perform the language assessment, which Ms. Iraha
did on February 6, 2009.
589, 592.]

[ROA, 7/28/11 Hrg. Trans. (Vol. IV) at

The Iraha Report, dated February 18, 2009, did not

specifically address the possibility of an auditory processing
disorder.

[ROA, Pets.’ Exh. 8.]

The Iraha Report, however,

concluded that Student “could possibly benefit from supplemental
services addressing his overall language needs (specifically
listening comprehension and oral expression).”

34

[Id. at 100.]

The DOE’s PWN dated March 3, 2009 states, in pertinent
part: “Language Assessment was given and [Student] does qualify
for services.

Upon receiving information from private doctor

regarding CAP[D] we will amend [Student’s] IEP and start
lang[uage] services.”10

[ROA, Pets.’ Exh. 4 at 69.]

This

statement is evidence that the DOE: 1) was aware of Student’s
possible CAPD diagnosis; and 2) recognized that information about
that potential disability was necessary to the formulation of his
IEP, even though Plaintiffs had not yet provided the IEP team
with the Murphy-Hazzard Report.

The Court therefore finds that

the information available to the DOE by the March 3, 2009 IEP
team meeting triggered the DOE’s duty to assess Student for CAPD
as an area of suspected disability.
The Ninth Circuit has held that a parent’s privately
obtained evaluation of a student does not absolve the school
district of its obligation to assess the student.

In N.B. v.

Hellgate Elementary School District, ex rel. Board of Directors,
Missoula County, Montana, the Ninth Circuit stated:
Hellgate suggested to C.B.’s parents that
they obtain a general evaluation of C.B. at the
September 22, 2003, IEP meeting. It referred
C.B.’s parents to the CDC for general testing.
Hellgate contends that, despite this
recommendation, C.B.’s parents failed to procure
an evaluation from the CDC after the September

10

The Court will address whether the failure to implement
speech/language services in the March 3, 2009 IEP constituted a
denial of FAPE infra Section III.A.
35

2003 IEP meeting. The fact that Hellgate referred
the parents to the CDC shows that Hellgate was
mindful that an evaluation was necessary. Thus,
Hellgate’s assertion that it did not suspect C.B.
had autism prior to the November 2003 IEP meeting,
because C.B.’s parents had not raised it at a
prior IEP meeting, is not supported by the record.
Hellgate failed to meet its obligation to evaluate
C.B. in all areas of suspected disabilities after
becoming aware of Dr. Gold’s diagnosis.
Hellgate did not fulfill its statutory
obligations by simply referring C.B.’s parents to
the CDC. Such an action does not “ensure that the
child is assessed,” as required by 20 U.S.C.
§ 1414(b)(3)(C). See also Union Sch. Dist. v.
Smith, 15 F.3d 1519, 1523 (9th Cir. 1994) (holding
that a parent’s failure to secure an evaluation,
even if the parents agreed to obtain it, does not
excuse the school district’s obligation under the
IDEA to secure such an evaluation). In Union
School District, the parents of the student failed
to turn over portions of a report issued by a
specialist that may have been relevant to the
placement of the student. Id. The court held
that the “failure of the [parents] to turn over
portions of a specialist’s report cannot excuse
the District’s failure to procure the same
information for itself.” Id.
A school district cannot abdicate its
affirmative duties under the IDEA. W.G. [v. Bd.
of Trs. of Target Range Sch. Dist. No. 23,
Missoula, Mont.], 960 F.2d [1479,] 1484-85 [(9th
Cir. 1992)]. . . .
541 F.3d 1202, 1209 (9th Cir. 2008) (some alterations in
original).
Defendant appears to suggest that the IEP team was
waiting for Mother to provide the Murphy-Hazzard Report to the
team after the March 3, 2009 IEP meeting, and this was one of the
reasons why the team did not act on Student’s speech/language

36

issues until the formulation of the August 23, 2010 IEP.
[Answering Br. at 22.]

Pursuant to Union School District and

N.B., however, the fact that Plaintiffs obtained the MurphyHazzard Report did not absolve Defendant of its affirmative duty
to obtain information about Student’s possible CAPD.

Further,

the Murphy-Hazzard Report, a neuropsychological evaluation,
merely provided evidence that CAPD was a suspected area of
disability.

Defendant ultimately had to send the Murphy-Hazzard

Report and the Iraha Report to an audiologist for review.

The

Court therefore CONCLUDES that the DOE violated its duty to
assess Student for CAPD until the IEP team sent the MurphyHazzard Report with the Iraha Report to an audiologist to obtain
a recommendation regarding a CAPD assessment.
Although the failure to assess a student’s suspected
disability is a procedural violation of the IDEA, not every
procedural violation constitutes a denial of FAPE.
F.3d at 909.

See L.M., 556

Procedural violations that “result in the loss of

educational opportunity, or seriously infringe the parents’
opportunity to participate in the IEP formulation process,
clearly result in the denial of a FAPE.”

Id. (citations and

quotation marks omitted).
Traciann Dolim, who worked with Student as the SSC,
testified that Dr. Takekawa, a DOE audiologist, reviewed the
Murphy-Hazzard Report and the Iraha Report and concluded that it

37

was not necessary for the DOE to assess Student for CAPD.
7/27/11 Hrg. Trans. (Vol. III) at 427-28, 444.]

[ROA,

Further,

Plaintiffs’ witness, Dr. Tyson, testified that “an auditory
processing evaluation was conducted and did not find an Auditory
Processing Disorder.”
267.]

[ROA, 7/26/11 Hrg. Trans. (Vol. II) at

Dr. Tyson testified that, although Student does not have

CAPD, he has “a mixed receptive-expressive language disorder,”
which concerns “the way the brain is encoding[,]” and requires
intervention similar to an auditory processing problem.
269-70.]

[Id. at

Thus, this Court FINDS that, insofar as it was

ultimately determined that Student does not have CAPD, the DOE’s
failure to assess Student’s suspected CAPD after the March 3,
2009 IEP team meeting neither resulted in the loss of educational
opportunity nor seriously infringed on his parents’ right
participation in the IEP formulation process.11

The Court

CONCLUDES that the DOE’s failure to assess Student for CAPD did
not result in the denial of FAPE.
The Court REVERSES the Hearings Officer’s finding that
Defendant had no duty to evaluate Student for CAPD after the
March 3, 2009 IEP meeting, but the Court AFFIRMS the Hearings
Officer’s conclusion that the lack of a DOE CAPD evaluation did

11

The DOE was already aware that Student needed
speech/language services after the March 3, 2009 IEP team
meeting. As previously noted, the Court will address whether the
failure to implement speech/language services in the March 3,
2009 IEP constituted a denial of FAPE infra Section III.A.
38

not result in the denial of FAPE.
B.

Mental Health/Behavioral Assessment
Plaintiffs argue that the Hearings Officer erred in

finding that Defendant had no duty to evaluate Student for
behavioral/mental health disabilities because Student did not
manifest behavioral problems in the classroom.

Plaintiffs

contend that the Murphy-Hazzard Report and the concerns that
Mother raised at the IEP meetings were sufficient to trigger the
DOE’s duty to assess Student for suspected behavioral/mental
health disabilities.

[Opening Br. at 21-22.]

As previously noted, § 1414(a)(2)(A) provides that an
educational agency shall reevaluate a student if either the
agency determines the student’s needs warrant reevaluation or the
student’s parent or his teacher requests a reevaluation.

There

is no evidence in the record that Student’s parents made a
written request that the DOE reevaluate Student for
behavioral/mental health disabilities or that any of his teachers
requested such an evaluation.

The Court must therefore determine

whether there is any evidence in the record that Student’s
parents made an oral request for a behavioral/mental health
evaluation or whether the information available to the DOE was
sufficient to trigger the DOE’s duty to evaluate Student for
suspected behavioral/mental health disabilities.

39

Although she did not identify specific dates, Mother
testified that, when she went to Student’s IEP meetings, she
raised “his shutting down, and . . . anxiety and self-esteem kind
of things.”

[ROA, 7/26/11 Hrg. Trans. (Vol. II) at 353.]

She

would ask the team members if they observed Student shutting down
because at home he shut down, and he was anxious and frustrated.
[Id. at 359.]

It is not clear from the record, however, whether

Mother raised her concerns about Student’s habit of shutting down
as a behavioral/mental health issue or merely as a result of his
speech and language difficulties.

For example, Mother testified

that, “every meeting I told them over and over, ‘He needs speech.
He’s shutting down.

He is not understanding.

going further and further apart.’”

[Id.]

His grades are

Specifically at the

March 3, 2009 IEP team meeting, Mother raised Student’s habit of
shutting down in the context of his communication problems and
his need for language services.

[Id. at 363-64.]

Mother testified that, at the February 26, 2010 IEP
team meeting, the team members agreed with Mother’s reports of
Student’s problems with self-esteem and expressing himself, and
they stated that they also saw it happen.12

[Id. at 375.]

This,

however, does not necessarily rise to the level of recognizing a
potential mental health disability.

12

Mother believed that the

For example, Mother testified that Ms. Otake, Student’s
fourth grade teacher, recognized that Student “had huge selfesteem issues.” [ROA, 7/26/11 Hrg. Trans. (Vol. II) at 353.]
40

PLEPs in the February 26, 2010 IEP should have “something in
[there] for mental health, the shutting down issues[,]” [id. at
376,] but she admitted that she did not tell the IEP team about
her disagreement with the contents of the February 26, 2010 IEP
[id. at 378-79].

Mother wrote a letter dated May 10, 2010 to the

principal of the Home School stating that she disagreed with
Student’s IEP and requesting another meeting, but the letter did
not identify specific concerns.
130.]

[Id. at 380; Pets.’ Exh. 9 at

The team formulated the August 23, 2010 IEP after meetings

on May 26, 2010, June 22, 2010, and August 23, 2010.
Pets.’ Exh. 2 at 7.]

[ROA,

At the hearing, Mother expressed concern

about the fact that the August 23, 2010 IEP contained
“nothing . . . regarding mental health.”
Trans. (Vol. II) at 392.]

[ROA, 7/26/11 Hrg.

She did not, however, testify that she

specifically raised this concern to the IEP team.

The Court

therefore finds that there is no evidence in the record that
Student’s parents requested that the DOE evaluate Student for
suspected behavioral/mental health disabilities.
Mother testified that she sent Student to Dr. Rochelle
Hanson, a play therapist, for counseling for approximately one
year.

After about six months of counseling, Dr. Hanson referred

them to Dr. Murphy-Hazzard because Dr. Hanson suspected that
Student had ADHD, and Dr. Hanson had noticed Student’s shutdowns
and anxiety.

[Id. at 360.]

Plaintiffs, however, did not present

41

evaluations by Dr. Hanson or any other evidence of her diagnoses
and treatment of Student.

Mother informed Ms. Parish and

Ms. Otake, Student’s fourth grade special education and general
education teachers, that Student was seeing Dr. Hanson and why he
was seeing her, but Mother admitted that the DOE never received
any records about Dr. Hanson’s treatment of Student.

[Id. at

410.]
Dr. Murphy-Hazzard did diagnose Student with a
Generalized Anxiety Disorder, [ROA, Pets.’ Exh. 7 at 00096,] but
she linked Student’s anxiety with his suspected auditory
processing disorder and other language problems.

For example, in

discussing the results of Student’s emotional evaluations,
Dr. Murphy-Hazzard stated:
[Mother] reported that [Student] is often
afraid of the dark, noises, shadows, school
performances, and new situations. He complains
about psychosomatic symptoms (e.g. stomach aches,
nausea, head aches) when faced with new situations
and frequently tries to avoid these situations.
She also noted that [Student] shuts down when he
gets “stuck” on a problem. [Mother] reported
these symptoms to have occurred since he was young
and occurs across environments.
These data were commensurate with
observations taken during testing. [Student]
frequently played with his ears when he was
nervous, and he was reluctant to guess on
questions or tasks that he unsure [sic] of. It is
not uncommon for children with auditory processing
problems and/or learning disorders to experience a
high degree of anxiety.
[ROA, Pets.’ Exh. 7 at 94 (emphasis added).]
42

Dr. Murphy-Hazzard also stated:
Emotional measures were significant for a
clinically diagnosable level of anxiety. Some of
[Student’s] behaviors present in a manner that may
appear to be “malingering”, or trying to get out
of tasks or school days he wants to avoid. It is
likely that, while some of his behavior is normal
childhood malingering, most of it arises from his
difficulties with auditory processing and specific
skills such as reading. . . .
[Id. at 95 (emphasis added).]
Student’s special education teacher for the third
grade, Glorilyn Manding, testified that, in the classroom,
Student did not exhibit any behaviors that concerned her or which
she could not resolve through normal classroom interventions.
She also testified that, in the classroom, Student did not
exhibit the isolative and withdrawn behaviors described in the
RIH.

[ROA, 7/27/11 Hrg. Trans. (Vol. III) at 485-86, 491.]

Ms. Parish and Ms. Otake also testified that Student did not
exhibit isolative and withdrawn behaviors in the classroom.
at 537, 576-77.]

[Id.

Dr. Bergeron testified that the school staff

could make a justifiable conclusion that a student did not
require mental health services, even if the staff did not have
mental health training, because of their familiarity with how the
student behaves in class.

Dr. Bergeron also testified that it

was possible for a student to require mental health services
outside of school, although he did not need them during school.
[ROA, 7/28/11 Hrg. Trans. (Vol. IV) at 630-31, 651, 644.]
43

Thus, the Court FINDS that, although Mother had
concerns about Student’s behavior, there is no evidence in the
record that Plaintiffs requested a reevaluation for
behavioral/mental health disabilities.

The Court also FINDS that

the information that was presented to the IEP team regarding
possible behavioral/mental health issues indicated that Student’s
problematic behavior was the result of his speech/language
difficulties.

The Court therefore CONCLUDES that Defendant was

not presented with enough information to trigger its duty to
evaluate Student for suspected behavioral/mental health
disabilities and Defendant’s failure to assess Student for
behavioral/mental health disabilities did not constitute a denial
of FAPE.
III. Whether Student’s IEPs Offered a FAPE
Plaintiffs contend that all of the Contested IEPs
failed to offer Student a FAPE because: the Contested IEPs did
not address his communication needs; they did not address his
behavioral/mental health needs; and because their goals and
objectives were not appropriate for Student.
A.

March 3, 2009 IEP
As this Court previously noted, Defendant was aware, in

light of the Iraha Report, that Student required speech/language
services.

The team stated that it was not implementing

speech/language services because it was waiting for information
44

in the Murphy-Hazzard Report about Student’s possible CAPD, but
ultimately the evidence indicated that Student does not have CAPD
and both Student’s program at Loveland and the August 23, 2010
IEP included speech/language services without a CAPD diagnosis.
Thus, the information in the Murphy-Hazzard Report about the CAPD
rule-out was not necessary to the implementation of the
speech/language services indicated by the Iraha Report and other
information available when the team formulated the March 3, 2009
IEP.

Even if testing had ultimately indicated that Student had

CAPD, the DOE could have implemented speech/language services in
the March 3, 2009 IEP based on the information in the Iraha
Report and amended the services later based on subsequent
information about CAPD.

Insofar as the March 3, 2009 IEP did not

include services that the DOE was aware Student needed, the
March 3, 2009 IEP did not provide for an appropriate education
for Student.

The Court therefore CONCLUDES that the failure to

provide speech/language services in Student’s March 3, 2009 IEP
constituted a denial of FAPE.

See 20 U.S.C. § 1401(9)(C).

As to the alleged failure to include behavioral/mental
health services in the March 3, 2009 IEP, this Court concludes
that, for the same reasons that this Court has concluded that the
available information did not trigger a duty to evaluate Student
for suspected behavioral/mental health disabilities, Plaintiffs
have not carried their burden of proving that failure to include

45

behavioral/mental health services in the March 3, 2009 IEP
constituted a denial of FAPE.
Insofar as the March 3, 2009 IEP did not include the
speech/language services that the IEP team determined Student
needed, the IEP also failed to identify goals and objectives to
address Student’s speech/language deficits.

The failure to

address Student’s speech/language needs also impaired his ability
to accomplish his goal, and its associated objectives, regarding
“attend[ing] to task in instructional setting on a daily basis.”
[ROA, Pets.’ Exh. 4 at 00064.]

The Court therefore CONCLUDES

that the March 3, 2009 IEP also denied Student a FAPE because its
goals and objectives failed to address his identified
speech/language needs.
Plaintiffs have not presented sufficient evidence that
Student’s math goal and objective, [id. at 00063,] was
inappropriate.

The other three annual goals in the March 3, 2009

IEP related to reading and writing.

In the third grade, Student

came to Ms. Manding’s class for language arts and math.
7/27/11 Hrg. Trans. (Vol. III) at 481.]

[ROA,

She testified that

Student made progress in her class and that Student’s IEP
progress report showed that he was “progressing, for the most
part.”

[Id. at 488-90; Resp.’s Exh. 11 (IEP Progress Report -

IEP Date 03/03/09).]

This indicated that Student’s goals were

appropriate because mastery of all of his goals would have

46

indicated that the goals and objectives were too low, and a
rating of no progress on all of his goals would have indicated
that they were inappropriate or too high.

[ROA, 7/27/11 Hrg.

Trans. (Vol. III) at 490.]
Based on the preponderance of the evidence, the Court
CONCLUDES that, with the exception of the failure to address
Student’s identified speech/language needs, the March 3, 2009 IEP
offered Student a FAPE.
B.

February 26, 2010 IEP
As with the March 3, 2009 IEP, the Court also CONCLUDES

that the February 26, 2010 IEP denied Student a FAPE because it
failed to address Student’s speech/language needs.

Further, for

the reasons discussed, supra, the lack of behavioral/mental
health services in the February 26, 2010 IEP did not constitute a
denial of FAPE.
Three of the four annual goals in the February 26, 2010
IEP addressed reading and writing, and the fourth addressed math.
[ROA, Pets.’ Exh. 3 at 00041-44.]

The annual goals, and many of

the objectives associated therewith, are the same as in the
March 3, 2009 IEP.

Student’s IEP progress report states that, as

of May 26, 2010, Student had mastered his spelling objective and
was progressing in all of his other objectives.
Exh. 12 at 104-07.]

[ROA, Resp.’s

As with the March 3, 2009 IEP, Plaintiffs

have not presented sufficient evidence that Student’s math goal,

47

and its associated objectives, in the February 26, 2010 IEP,
[ROA, Pets.’ Exh. 3 at 00044,] was inappropriate.
As to Student’s reading, the PLEPs in the February 26,
2010 IEP stated that his reading comprehension level increased
from a 1.7 to a 3.0 grade level and his vocabulary comprehension
was at a fourth grade level.

[Id. at 38.]

Further, the PLEPs

identified areas where Student’s spelling, grammar, and writing
needed improvement, but they noted that he was “able to print
legibly and use letter-sound knowledge and segmenting strategies
to spell unfamiliar words” and “able to summarize a story at his
instructional level.”

[Id.]

Ms. Parish, Student’s special

education teacher for the fourth grade and a member of his IEP
team, testified that Student was progressing and that his
progress was one of the reasons he was not considered eligible
for extended school year (“ESY”) services.
Trans. (Vol. III) at 514.]

[ROA, 7/27/11 Hrg.

Ms. Otake, Student’s general

education teacher for the fourth grade, stated that Student’s
progress in science and social studies was “slight” because of
his reading level.

[Id. at 573-74.]

The Court understands that Plaintiffs would have liked
more services and more individualized attention, and that they
were frustrated with the fact that Student did not make more
progress.

An IEP, however, need not conform to a parent’s wishes

in order to be sufficient or appropriate.

48

See Shaw v. District

of Columbia, 238 F. Supp. 2d 127, 139 (D.D.C. 2002) (stating that
the IDEA does not provide for an “education . . . designed
according to the parent’s desires” (citation omitted)).
The Court notes that a FAPE need not provide the
“absolutely best” or “potential-maximizing” education.

J.W. ex

rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 439 (9th
Cir. 2010) (citation and internal quotation marks omitted).

The

FAPE need only be “appropriately designed and implemented so as
to convey [the] [s]tudent with a meaningful benefit.”
(citations and quotation marks omitted).

Id. at 433

Based on the

preponderance of the evidence, the Court CONCLUDES that, with the
exception of the failure to address Student’s identified
speech/language needs, the February 26, 2010 IEP offered Student
a FAPE.
C.

August 23, 2010 IEP
Student’s IEP team formulated the August 23, 2010 IEP

after holding three meetings to address concerns that Mother
raised after the formulation of the February 26, 2010 IEP.

The

team amended the PLEP regarding communication from “Addressed but
not a concern” in the February 26, 2010 IEP, [ROA, Pets.’ Exh. 3
at 38,] to include the results of the tests cited in the Iraha
Report as well as Student’s communication needs [ROA, Pets.’ Exh.
2 at 8-9, Exh. 8 at 1].

The August 23, 2010 IEP included five

new annual goals regarding oral communication.

49

[ROA, Pets.’ Exh.

2 at 15-19.]

It also added 1,200 minutes of special education

services per week of ESY services after twenty-one days, as well
as sixty minutes per week of speech/language therapy during the
school year.

[Id. at 20.]

DOE speech and language pathologist

Jeanne Iwashita testified that she attended the IEP team meetings
on June 22 and August 23, 2010.

She was Christie Iraha’s

supervisor, and she attended the meetings because the team asked
for a speech pathologist to address Student’s communication
concerns and Ms. Iraha was on leave at the time.
Hrg. Trans. (Vol. IV) at 604, 606-08.]

[ROA, 7/28/11

She testified that, based

on the information available to the team, including the Iraha
Report and the Murphy-Hazzard Report, the August 23, 2010 IEP
appropriately addressed Student’s speech/language needs.
607-11.]

[Id. at

Student’s Speech Language Progress Report from Loveland

states that Student “participates in group speech therapy with 45 of his peers . . . twice weekly for 30 minute sessions each
week.”

[ROA, Pets.’ Exh. 16 at 224.]

Ms. Iwashita testified

that the sixty-minutes of weekly speech/language services
provided for in the August 23, 2010 IEP would have been provided
in two sessions in a small group.

Thus, she testified that the

services in the August 23, 2010 IEP were essentially the same as
the services that Student received at Loveland during the 20102011 school year.

[ROA, 7/28/11 Hrg. Trans. (Vol. IV) at 620-

21.]

50

Dr. Tyson acknowledged that the pull-out
speech/language services that Student received at Loveland were
the same as was offered in the August 23, 2010 IEP, but she
asserted that sixty minutes was inadequate.
Trans. (Vol. II) at 278.]

[ROA, 7/26/11 Hrg.

Mother testified that Loveland

attended to Student’s speech/language needs throughout his day,
not just in the pull-out session.

Mother admitted that she had

not complained to Loveland about the amount of speech/language
pull-out sessions Student was receiving, but she stated that,
after hearing Dr. Tyson’s testimony, she would ask for more
services.

[Id. at 416-17.]
The Hearings Officer concluded that “the amount of

speech-language services in the August 23, 2010 IEP was
sufficient to allow Student to achieve meaningful educational
gain” and that Plaintiffs had not proven that the services
offered in the August 23, 2010 IEP were inappropriate.
at 23.]

[Decision

This Court agrees that the additions to the August 23,

2010 IEP assessing Student’s speech/language needs were
appropriate, and this Court agrees that the DOE’s offer of a FAPE
relating to Student’s programs and placement in the August 23,
2010 IEP were designed to allow Student to achieve meaningful
educational gains in the least restrictive environment.

The

Court is sympathetic to Parents’ view that Student made
remarkable progress at Loveland.

51

The IDEA, however, does not

require states to “maximize each child’s potential commensurate
with the opportunity provided other children,” but only to
“enable the child to receive educational benefits.”

Bd. of Educ.

of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 198,
207 (1982) (footnote omitted).
The Court notes that, throughout the proceedings,
Parents have sought, as all good parents do, to secure the best
services for their child.

Student’s progress at Loveland is

commendable, but the role of the district court in IDEA appeals
is not to determine whether an educational agency offered the
best services available.

Further, while the parties appear

divided by honest differences of opinion about the progress that
Student made while at the Home School, the Court finds compelling
evidence that the August 23, 2010 IEP was tailored to meet
Student’s specific needs.

Based on the preponderance of the

evidence, the Court therefore CONCLUDES that the August 23, 2010
IEP offered Student a FAPE in compliance with the IDEA.
IV.

Remedies for the Denial of FAPE
This Court has concluded that: the March 3, 2009 IEP

and the February 26, 2010 IEP denied Student a FAPE because they
did not address his speech/language needs, even though the IEP
team determined that Student was entitled to receive
speech/language services; but the August 23, 2010 IEP did offer
Student a FAPE.

Insofar as the DOE’s proposed placement of

52

Student at the Home School for the 2010-2011 school year did not
violate the IDEA, Plaintiffs are not entitled to reimbursement
for Student’s expenses at Loveland.

See Forest Grove Sch. Dist.

v. T.A., 557 U.S. 230, 246 (2009) (“Parents are entitled to
reimbursement only if a federal court concludes both that the
public placement violated IDEA and the private school placement
was proper under the Act.” (citation and quotation marks
omitted)).

The Court therefore DENIES Plaintiffs’ request for

reimbursement for the expenses of Student’s placement at
Loveland.
The Court, however, finds that Defendant’s failure to
address Student’s speech/language needs in the March 3, 2009 IEP
and the February 26, 2010 IEP resulted in a loss of educational
benefits to Student.

“[C]ompensatory education involves

discretionary, prospective, injunctive relief crafted by a court
to remedy what might be termed an educational deficit created by
an educational agency’s failure over a given period of time to
provide FAPE to a student.”

Dep’t of Educ. v. Zachary B. ex rel.

Jennifer B., Civ. No. 08-00499 JMS/LEK, 2009 WL 1585816, at *9
(D. Hawai`i June 5, 2009).

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
53

[Individuals with Disabilities Education Act].
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.” We
review the Hearing Officer’s and the district
court’s award of compensatory education services
for abuse of discretion.
Park ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d
1025, 1033 (9th Cir. 2006) (some citations and quotation marks
omitted).
The Court CONCLUDES that compensatory education is the
appropriate relief for Defendant’s failure to provide Student
with speech/language services from the March 3, 2009 IEP to the
August 23, 2010 IEP.
The Court ordered the parties to submit supplemental
briefing, with supporting citations to the record on appeal,
addressing the issue of what specific type of compensatory
education the Court should award.

The Court emphasized that the

parties were not to use the supplemental briefs to relitigate the
issue whether there was a denial of FAPE, whether Plaintiffs are
entitled to reimbursement of Student’s tuition and expenses at
Loveland, or any other issue addressed in the original Order.
In their supplemental brief, Plaintiffs argue that the
appropriate compensatory education award is “the value of
Loveland’s services in assessing I.T.’s needs (July 2010 to
November 2010) and in providing services from November 2010 to
November 2011.”

[Pltfs.’ Suppl. Br. at 10.]

54

This Court,

however, has already ruled that Plaintiffs are not entitled to
reimbursement of Student’s tuition and expenses at Loveland.
In its supplemental brief, Defendant argues that
Plaintiffs’ request is inappropriate.

Based on testimony at the

due process hearing, a declaration by Ms. Iwashita dated
August 28, 2012, and a Speech Language Assessment that
Ms. Iwashita performed on May 3, 2012, Defendant argues that
an appropriate compensatory remedy for the period
between the March 3, 2009 Individualized Education
Program (“IEP”) and the August 23, 2010 IEP, when
Student was not receiving speech-language
services, would be one year of speech-language
services at 60 minutes per week provided by a DOE
speech language pathologist either at his DOE
school or his private school.
[Def.’s Suppl. Br. at 9 (citation omitted).]
This Court does have the authority to receive
additional evidence.

See 20 U.S.C. § 1415(i)(2)(C)(ii).

The

Ninth Circuit has set forth the following standard for the
admission of additional evidence:
We construe “additional” in the ordinary sense of
the word, Perrin v. United States, 444 U.S. 37,
42, 100 S. Ct. 311, 314, 62 L. Ed. 2d 199 (1980),
to mean supplemental. Thus construed, this clause
does not authorize witnesses at trial to repeat or
embellish their prior administrative hearing
testimony; this would be entirely inconsistent
with the usual meaning of “additional.” We are
fortified in this interpretation because it
structurally assists in giving due weight to the
administrative proceeding, as Rowley requires.
[Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist.
v.] Rowley, 458 U.S. [176,] 206, 102 S. Ct.
[3034,] 3051 [(1981)].

55

* * * * * *
The reasons for supplementation will vary; they
might include gaps in the administrative
transcript owing to mechanical failure,
unavailability of a witness, an improper exclusion
of evidence by the administrative agency, and
evidence concerning relevant events occurring
subsequent to the administrative hearing. The
starting point for determining what additional
evidence should be received, however, is the
record of the administrative proceeding.
* * * * * *
The determination of what is “additional”
evidence must be left to the discretion of the
trial court which must be careful not to allow
such evidence to change the character of the
hearing from one of review to a trial de novo. A
practicable approach, we believe, is that an
administrative hearing witness is rebuttably
presumed to be foreclosed from testifying at
trial. . . . In ruling on motions for witnesses
to testify, a court should weigh heavily the
important concerns of not allowing a party to
undercut the statutory role of administrative
expertise, the unfairness involved in one party’s
reserving its best evidence for trial, the reason
the witness did not testify at the administrative
hearing, and the conservation of judicial
resources.
Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1472-73 (9th
Cir. 1993) (some alterations in Jackson) (citation omitted).
Based on Jackson, this Court concludes that
Ms. Iwashita’s August 12, 2012 declaration and the Assessment
Report attached thereto do not qualify as the type of additional
evidence that this Court may consider pursuant to
§ 1415(i)(2)(C)(ii).

Further, this Court CONCLUDES that it

cannot determine the appropriate compensatory education award
56

based on the existing record.

The Court therefore REMANDS the

instant case to the Hearings Officer for the limited purpose of
conducting further proceedings to determine the appropriate
compensatory education award.
V.

Reimbursement for the Tyson Evaluation
In the conclusion of their Opening Brief, Plaintiffs

argue that the Court should vacate the Decision, enter judgment
in Plaintiffs’ favor and order Defendant to, inter alia,
“reimburse Plaintiff for the cost of evaluations conducted by
Drs. [sic] Murphy-Hazzard and Dr. Tyson pursuant to 34 C.F.R.
§ 300.502[.]”

[Opening Brief at 36.]

First, Plaintiffs’ Opening

Brief does not include any substantive discussion regarding this
request.

Moreover, Dr. Tyson tested Student in November 2010 and

completed her evaluation after Student was enrolled at Loveland
Academy and without Plaintiffs requesting an IEE.
§ 300.502(b)(2).

See 34 C.F.R.

The Court therefore CONCLUDES that Plaintiffs

are not entitled to reimbursement for the cost of Dr. Tyson’s
evaluation.

Plaintiffs’ request for reimbursement pursuant to

§ 300.502 is DENIED.
CONCLUSION
On the basis of the foregoing, the Hearings Officer’s
Findings of Fact, Conclusions of Law and Decision, filed
October 6, 2011, is HEREBY AFFIRMED IN PART AND VACATED IN PART.
The Court VACATES the Hearings Officer’s Decision to the extent
57

that:
1) the Court CONCLUDES that Defendant violated the IDEA by
failing to evaluate Student for CAPD after the March 3, 2009
IEP team meeting, but the Court also CONCLUDES that the
violation did not result in a denial of FAPE because the
evidence ultimately established that Student did not have
CAPD;
2) the Court CONCLUDES that the failure to address Student’s
speech/language needs, both in the provision of services and
in the creation of a appropriate goals and objectives, in
the March 3, 2009 IEP and in the June 26, 2010 IEP
constituted a denial of FAPE; and
3) the Court CONCLUDES that compensatory education is the
appropriate relief for the denial of FAPE and the Court
REMANDS this matter to the Hearings Officer to conduct
further proceedings to determine the form of the
compensatory education.
The Court AFFIRMS the Decision in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 10, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

I.T., ET AL. V. DEPARTMENT OF EDUCATION, STATE OF HAWAII; CIVIL
NO. 11-00676 LEK-KSC; AMENDED ORDER AFFIRMING IN PART AND
VACATING AND REMANDING IN PART THE HEARINGS OFFICER’S OCTOBER 6,
2011 DECISION

58