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

Filing 68

ORDER REVISING THE HEARINGS OFFICER'S JUNE 5, 2013 DECISION ON REMAND, AND AWARDING COMPENSATORY EDUCATION. Related: 31 Signed by JUDGE LESLIE E. KOBAYASHI on 12/17/2013. ~ The Hearings Officer's June 5, 2013 Remanded Deci sion Subsequent to U.S. District Judge Leslie Kobayashis September 10, 2012 Amended Order Affirming in Part, and Vacating and Remanding in Part, the Hearings Officer's October 6, 2011 Decision is HEREBY REVERSED. This Court AWARDS Plaintiffs $44,335.53 as a compensatory education award for Defendants failure to address Student's speech-language needs in the March 3, 2009 IEP and the February 26, 2010 IEP. This Court ORDERS Defendant to pay this amount to Plaintiffs, through Plaintiffs' counsel, by no later than February 10, 2014. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. (cc: Office of Administrative Hearings)

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

ORDER REVISING THE HEARINGS OFFICER’S JUNE 5, 2013
DECISION ON REMAND, AND AWARDING COMPENSATORY EDUCATION
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”) June 5, 2013 Remanded Decision Subsequent to
U.S. District Judge Leslie Kobayashi’s September 10, 2012 Amended
Order Affirming in Part, and Vacating and Remanding in Part, the
Hearings Officer’s October 6, 2011 Decision (“Decision on
Remand”).

Plaintiffs filed their Opening Brief re Decision on

Remand (“Opening Brief”) on August 19, 2013.

[Dkt. no. 62.]

Defendant Department of Education, State of Hawai`i (“Defendant”
or “the DOE”) filed its Answering Brief on October 3, 2013, and
Plaintiffs filed their Reply Brief re Decision on Remand (“Reply
Brief”) on October 16, 2013.
1

[Dkt. nos. 65, 66.]

The Court

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

heard oral argument in this matter on November 25, 2013.
Appearing on behalf of Plaintiffs was John Dellera, Esq., and
appearing on behalf of Defendant was James Raymond, Esq.

After

careful consideration of the briefs, the arguments of counsel,
and the relevant legal authority, the Decision on Remand is
HEREBY REVERSED for the reasons set forth below, and this Court
HEREBY AWARDS Plaintiffs a compensatory education award of
$44,335.53.
BACKGROUND
I.

Procedural History in the United States District Court
Plaintiffs filed their Complaint on November 4, 2011

pursuant to the Individuals with Disabilities Education Act of
2004 (“IDEA”), 20 U.S.C. § 1400 et seq.

Plaintiffs appealed from

the Hearings Officer’s October 6, 2011 Findings of Fact,
Conclusions of Law and Decision (“Decision”) dismissing
Plaintiffs’ Request for Impartial Due Process Hearing.

On

September 11, 2012, this Court issued its Amended Order Affirming
in Part and Vacating and Remanding in Part the Hearings Officer’s
October 6, 2011 Decision (“9/11/12 Order”).

[Dkt. no. 31.2]

On

October 3, 2012, this Court stayed the case pending the
resolution of the issues on remand.

[Dkt. no. 33.]

After the Hearings Officer issued his Decision on
Remand, this Court granted the parties’ joint request to lift the
2

The 9/11/12 Order is also available at 2012 WL 3985686.
2

stay and granted Plaintiffs leave to file an amended complaint to
include their appeal from the Decision on Remand.

Plaintiffs

filed their First Amended Complaint on July 5, 2013.

[Dkt. no.

52.]
II.

Factual and Administrative Background
The factual and procedural background relevant to the

original administrative proceedings is set forth in the 9/11/12
Order, which states:
1) the Court CONCLUDES that Defendant violated the
IDEA by failing to evaluate Student for
[Central Auditory Processing Disorder
(“CAPD”)] after the March 3, 2009
[Individualized Education Program (“IEP”)]
team meeting, but the Court also CONCLUDES
that the violation did not result in a denial
of [a Free Appropriate Public Education
(“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 . . . appropriate goals and objectives, in
the March 3, 2009 IEP and in the [February]
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.
2012 WL 3985686, at *25.
On March 27, 2013, the Hearings Officer conducted the
hearing on remand “to determine the appropriate compensatory

3

education award.”

[Decision on Remand at 5.3]

The Hearings Officer emphasized that: 1) the March 3,
2009 IEP and the February 26, 2010 IEP denied Student a FAPE
because they did not offer Student speech-language services; and
2) the August 23, 2010 IEP, which this Court ruled offered
Student a FAPE, offered Student sixty minutes per week of speechlanguage services in pull-out sessions.

[Id.]

Based on this

Court’s rulings, the Hearings Officer found that “Student needed,
but was not offered, speech-language services . . . from March 3,
2009 until August 30, 2010.
months.”

This is approximately 1 year, 6

[Id. at 6.]
Based on the testimony and evidence presented in

conjunction with the hearing on remand, the Hearings Officer
found that Student was enrolled at Loveland Academy (“Loveland”)
for approximately one year and nine months, from November 2010 to
July 2012.

Mother testified that, after attending Loveland:

Student’s communication, reading, writing, and speech improved;
he was able to play with others; he shut down less often and for
shorter periods of time; he became more assertive and had less
anxiety; his grades improved; he was able to self-advocate; and
he was able to complete assignments with the help of a skills
trainer.

[Id.]

3

The Decision on Remand is available in the Administrative
Record on Appeal for the proceedings on remand, filed August 1,
2013 (“Remand ROA”), at 95-110.
4

During the hearing on remand, DOE speech language
pathologist, Jeanne Iwashita, testified as an expert in speech
pathology.

She evaluated Student on May 8, 2012 and opined that

Student has social needs, not communication needs, and she also
opined that he did not require speech-language services.

If

speech-language services were offered, Iwashita recommended
fifteen minutes per week of direct services, and fifteen minutes
per week of consultive services.

Further, she opined that

providing speech-language services when they are not necessary
could be detrimental because of the time that the student is
removed from the classroom and the stigma of receiving special
education services.

In addition, Iwashita opined that speech-

language services can be provided without mental health services.
Iwashita testified that Student needs counseling and reading
services.

[Id. at 6-7.]
The Hearings Officer noted that Mother was unable to

attend Student’s September 13, 2012 IEP meeting due to scheduling
problems.

She agreed with the IEP’s present levels of

educational performance (“PLEPs”) except for the PLEP stating
that Student did not have communication needs at that time.
Mother testified that the September 13, 2012 IEP should have
provided Student with speech-language services.

[Id. at 7-8.]

John Loveland, the school’s clinical director,
testified about Student’s initial assessment at the school and

5

the development of Student’s transdisciplinary treatment plan,
which included mental health services and speech-language
services.

He testified that all services at Loveland are

integrated, and therefore services are not considered separately.
He did, however, note that Student received one or one-and-a-half
hours of pull-out speech-language services per week.
John Loveland also provided testimony about Student’s progress at
Loveland.

He observed similar improvements in Student as those

that Mother described during her testimony before the Hearings
Officer.

[Id. at 8-10.]
The Hearings Officer made the following findings

regarding Loveland’s charges:
106. In his March 18, 2013 declaration
(Petitioner’s Exhibit 38), the clinical director
states, in part, “While many services are provided
in a transdisciplinary manner, all contributing
treatment programs (described below) come under a
mental health umbrella, because ([Loveland]) is a
Community Based Day Mental Health Treatment
Center.” . . .
107. The March 18, 2013 declaration of
[Loveland’s] biller, states, in part, that
“(Student) attended ([Loveland]) from July 2010 to
July 2012. According to ([Loveland])’s records
that are kept in the ordinary course of business,
unpaid invoices for services provided to
(Student) . . . $329,184.42.” See, Petitioners’
Exhibit 39. Contrary to Mother’s testimony that
Student was enrolled at [Loveland] in November
2010, the attachments to [Loveland’s] biller’s
declaration show that [Loveland] was billing
parents for services provided to Student from July
2010 to July 2012. . . .
[Id. at 9.]

During the oral argument before this Court,
6

Plaintiffs’ counsel represented that Student stopped attending
Loveland for reasons unrelated to this case.
Carl Arnemann, Ph.D., testified at the hearing on
remand as an expert in school psychology.

He reviewed Student’s

records and spoke with DOE teachers and staff who knew Student,
but he did not examine Student.

Dr. Arnemann testified that

speech-language services at Loveland would have been effective
for Student, even without the other services that the school
provided.

He also testified that it is common for students to

receive speech-language services without mental health services.
[Id.]
In analyzing the issue on remand, the Hearings Officer
stated that compensatory education is an equitable remedy that
“is forward-looking, prospective relief to remedy past
deficiencies by the DOE.”

[Id. at 11.]

The Hearings Officer

quoted similar language from Hawai`i, Department of Education v.
Zachary B. ex rel. Jennifer B., Civ. No. 08–00499 JMS/LEK, 2009
WL 1585816 (D. Hawai`i June 5, 2009).

[Id. at 13.]

The Hearings Officer found that Plaintiffs did not
produce any evidence to support their request for reimbursement
for two years of Loveland tuition, except that they relied upon
testimony that the transdisciplinary program was integrated, and
the services included in the program cannot be segregated.
Further, the Hearings Officer noted that Student’s invoices from

7

Loveland began in July 2010, although Mother testified that he
was not enrolled there until November 2010.

There was some

dispute about Student’s “attendance,” “placement,” “entering,” or
“enrollment” dates.

Further, the period of the tuition request

exceeds the time that Student did not receive speech-language
services at his Home School.4

[Id. at 11-12.]

The Hearings

Officer noted that speech-language services that the DOE offered
were also integrated in Student’s daily program, but the DOE
could separate and quantify the amount of the speech-language
services it provided.

[Id. at 13-14.]

The Hearings Officer

emphasized that the 9/11/12 Order denied reimbursement, and he
stated that:
To ask for the same amount in compensatory
education as the reimbursement amount, without
justification other than to state that the
services offered cannot be separated, is not
seeking forward-looking, prospective relief to
remedy past deficiencies by the DOE. Rather, it
is merely asking for reimbursement by calling it
compensatory education.
[Id. at 14.]
Based on, inter alia, this Court’s finding that the
August 23, 2010 IEP, which provided sixty minutes per week of

4

During the periods covered by the March 3, 2009 IEP, the
February 26, 2010 IEP, and the August 23, 2010 IEP, Student’s
home school was Kaleiopuu Elementary School (“Home School”).
9/11/12 Order, 2012 WL 3985686, at *1. By the time of the
Decision on Remand, Student was attending Waipahu Intermediate
School (“Current School”). [Remand ROA at 2 (Legend to Decision
on Remand).]
8

speech-language services, provided a FAPE, other relevant rulings
in the 9/11/12 Order, and the testimony about the services that
Student needs, [id. at 14-16,] the Hearings Officer concluded
that “an appropriate compensatory education award would be 60
minutes per week of counseling, reading, and/or speech-language
services . . . . to be delivered once a week, for 78 weeks, in a
pull-out setting [id. at 17].

The Hearings Officer also found

that Plaintiffs were the prevailing party in the hearing on
remand.

[Id. at 18.]
The instant appeal followed.
DISCUSSION
The legal standards applicable in IDEA appeals are set

forth in the 9/11/12 Order and do not warrant repeating here.
See 2012 WL 3985686, at *10-12.
I.

Whether an Award of Compensatory Education
is Limited to Prospective Relief
Plaintiffs argue that the Hearings Officer based the

Decision on Remand on an erroneous legal proposition - that a
compensatory education award must be a prospective order of
current and/or future relief.

In other words, according to the

Decision on Remand, the Hearings Officer could not award
reimbursement for services that Student had already received as
compensatory education.

Defendant argues that the Hearings

Officer did not base his rulings on that legal principle.
Defendant contends that the Hearings Officer denied reimbursement
9

as compensatory education because it was not warranted under the
circumstances of this case.
It is not entirely clear whether the Hearings Officer
concluded that reimbursement for prior tuition could or could not
be awarded for compensatory education.

The Hearings Officer

noted that this district court “has described compensatory
education as follows: ‘[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 of a given period of time to
provide a FAPE to a student.’”

[Decision on Remand at 13

(quoting Hawaii, Dept. of Educ. v. Zachary B. ex rel Jennifer B.,
2009 WL 1585816 (D. Haw. Civ. No. 08-499, 2009)).]

The Hearings

Officer also emphasized the lack of justification for the tuition
reimbursement amount as a compensatory education award.
14.]

[Id. at

The Hearings Officer ultimately found that the seventy-

eight-hour compensatory education award “would compensate Student
for the lack of speech-language services in his March 3, 2009 and
February 26, 2010 IEPs” and “would remedy any effect upon Student
of the Court’s finding that the March 3, 2009 and February 26,
2010 IEPs did not appropriately address Student’s speech-language
needs.”

[Id. at 17.]

Viewing the Decision on Remand as a whole,

this Court concludes that the Hearings Officer did base his
rulings on the principle that a compensatory education award must

10

be prospective and cannot include reimbursement for services
received prior to the award.
This Court acknowledges that statements in this
district court’s orders could be interpreted as limiting
compensatory education to prospective awards.

See, e.g., Dep’t

of Educ., Hawai`i v. R.H. ex rel. K.R., Civil No. 12–00481
HG–RLP, 2013 WL 3338581, at *2 (D. Hawai`i July 2, 2013)
(“Compensatory education is prospective injunctive
relief . . . .”); 9/11/12 Order, 2012 WL 3985686, at *23
(“‘[C]ompensatory education involves discretionary, prospective,
injunctive relief . . . .’” (quoting 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))).

There is, however, no United

States Supreme Court or Ninth Circuit precedent holding that an
award of compensatory education pursuant to 20 U.S.C.
§ 1415(i)(2)(C)(iii)5 must be prospective.

5

In fact, the facts of

Section 1415(i)(2) states, in pertinent part:
(2) Right to bring civil action
. . . .
(C) Additional requirements
In any action brought under this paragraph,
the court-(iii) basing its decision on the
preponderance of the evidence, shall
grant such relief as the court
(continued...)
11

at least one Ninth Circuit case indicate that compensatory
education can include retroactive reimbursement.

See J.L. v.

Mercer Island Sch. Dist., 592 F.3d 938, 946 (9th Cir. 2010) (“The
[administrative law judge] awarded reimbursement for twelfth
grade as ‘compensatory education’ based on the district court's
holding that K.L. did not receive a free appropriate public
education in eighth and ninth grades.” (citing Parents of Student
W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1496 (9th Cir.
1994) (discussing compensatory education))).6
In light of the lack of binding authority on the issue,
this Court interprets statements such as the Zachary B. quotation
in the 9/11/12 Order as standing for the proposition that
compensatory education is often prospective, but is not
necessarily so.

Accord I.K. ex rel. E.K. v. Sylvan Union Sch.

Dist., 681 F. Supp. 2d 1179, 1192 (E.D. Cal. 2010) (“Compensatory
education often refers to ‘educational services ordered by the
court to be provided prospectively to compensate for a past
5

(...continued)
determines is appropriate.

(Emphasis added.)
6

In J.L., the Ninth Circuit vacated the district court’s
orders, including the award of reimbursement as compensatory
education, because the Ninth Circuit concluded that the district
court “erred in holding that the definition of a free appropriate
public education set forth by the Supreme Court in [Board of
Education of the Hendrick Hudson Central School District v.]
Rowley[, 458 U.S. 176 (1982),] has been superseded[.]” 592 F.3d
at 954 & n.11.
12

deficient program.’” (emphasis added) (quoting G. ex rel. Ssgt RG
v. Fort Bragg Dependent Schs., 324 F.3d 240, 253 (4th Cir.
2003))).

This Court concludes that an award of compensatory

education pursuant to § 1415(i)(2)(C)(iii) is not limited to an
award of prospective relief and can include reimbursement for
services that the student has already received.
To the extent that the Hearings Officer relied on an
erroneous legal proposition, this Court cannot give substantial
weight to the Hearings Officer’s ultimate rulings in the Decision
on Remand.

The Decision on Remand, however, does indicate that

the Hearings Officer gave careful and impartial consideration to
the evidence in the proceeding on remand.

This Court will

therefore give substantial weight to the Hearings Officer’s
findings of fact regarding Student’s performance.

This Court

will not give deference to the Hearings Officer’s application of
the law to the facts or to the Hearings Officer’s findings
regarding the services necessary to compensate Student for the
failure to provide a FAPE in the March 9, 2009 IEP and the
February 26, 2010 IEP.

This Court now turns to the determination

of what is an appropriate compensatory education award based on
the record in this case.
II.

Student’s Compensatory Education Award
As stated in the 9/11/12 Order:
Compensatory education services can be awarded as
appropriate equitable relief. 20 U.S.C.
13

§ 1415(i)(2)(B)(iii) (“shall grant such relief as
the court determines appropriate”); Parents of
Student W. v. Puyallup Sch. Dist., 31 F.3d 1489,
1496–97 (9th Cir. 1994). Appropriate relief is
relief designed to ensure that the student is
appropriately educated within the meaning of the
[Individuals with Disabilities Education Act].
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.” . . .
2012 WL 3985686, at *23 (some alterations in 9/11/12 Order)
(quoting Park ex rel. Park v. Anaheim Union High Sch. Dist., 464
F.3d 1025, 1033 (9th Cir. 2006) (some citations and quotation
marks omitted)).

Equitable considerations, including the conduct

of both parties, are relevant to the determination of an
appropriate compensatory education award.

Parents of Student W.,

31 F.3d at 1496 (quoting School Comm. of Burlington v. Department
of Education, 471 U.S. 359, 374, 105 S. Ct. 1996, 2005, 85 L. Ed.
2d 385 (1985); W.G. v. Board of Trustees of Target Range School
Dist., 960 F.2d 1479, 1486 (9th Cir. 1992)).

Further, this

district court has recognized that a “compensatory education
award is designed to catch a child up to where he or she would be
if the school district had provided a FAPE.”

Dep’t of Educ.,

Hawai`i v. Ria L. ex rel. Rita L., Civil No. 12–00007 HG–KSC,
2012 WL 5383543, at *5 (D. Hawai`i Oct. 30, 2012) (citing Brennan
v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245,
265 (D. Conn. 2008)).
In the instant case, Student is entitled to
compensatory education because Defendant failed to address his
14

speech-language needs in the March 3, 2009 IEP and the March 26,
2010 IEP.

9/11/12 Order, 2012 WL 3985686, at *23.

This Court

first turns to the issue of whether a prospective award of
current and future services at Student’s Current School or
reimbursement for services that he previously received at
Loveland is an appropriate compensatory education award for the
educational benefits that Student lost.
As this Court has previously noted, Student made
commendable progress at Loveland.

Id. at *22.

Student clearly

benefitted from the services he received at Loveland, including
the speech-language services.

[Decision on Remand at 9.]

The

Hearings Officer found that, based on the record after the
hearing on remand, “Student’s speech-language needs are not
severe.”

[Id. at 16.]

He noted Iwashita’s testimony that

Student had social needs, not communication needs, and that
Student did not require speech-language services.

[Id.]

The

Hearings Officer also noted that “‘neither party is recommending
any current or future services as a compensatory education award
(with the exception of Respondent’s recommendation in the
alternative for speech-language services.’”7

7

[Id. at 15 (quoting

The Hearings Officer also noted that Mother testified that
the September 13, 2012 IEP did not offer Student speech-language
therapy services, even though it should have offered those
services. [Decision on Remand at 15.]
The adequacy of the
September 13, 2012 IEP, however, is not before this Court at this
time.
15

Respondent’s Answering Brief (for proceedings on remand) at 17).]
In July 2010, Student began attending Loveland daily as
part of an assessment period.
in November 2010.

He officially enrolled at Loveland

[Decision on Remand at 6; Remand ROA, Trans.

of 3/27/13 Hrg. (“3/27/13 Hrg. Trans.”) at 54.]

For purposes of

the equitable compensatory education analysis, this Court finds
that it was reasonable for Parents to remove Student from the
Home School at that time because Defendant had not provided him a
FAPE in the two previous IEPs, and Defendant had not presented an
IEP for the upcoming 2010-2011 school year that offered Student a
FAPE.

This Court denied Plaintiffs reimbursement under 20 U.S.C.

§ 1412(a)(10)(C)8 for the 2010-2011 school year because the August

8

Section 1412(a)(10)(C) states, in pertinent part:
Payment for education of children enrolled in
private schools without consent of or referral by
the public agency
(i) In general
Subject to subparagraph (A), this subchapter
does not require a local educational agency
to pay for the cost of education, including
special education and related services, of a
child with a disability at a private school
or facility if that agency made a free
appropriate public education available to the
child and the parents elected to place the
child in such private school or facility.
(ii) Reimbursement for private school
placement
If the parents of a child with a disability,
(continued...)
16

23, 2010 IEP ultimately offered Student a FAPE.
2012 WL 3985686, at *22.

9/11/12 Order,

Although the denial of § 1412(a)(10)(C)

reimbursement does not preclude an award of reimbursement as
compensatory education pursuant to § 1415(i)(2)(C)(iii), the fact
that Student could have received a FAPE at his Home School in the
2010-2011 school year is a relevant equitable consideration.

It

is also relevant that, by the time Defendant had an IEP for the
2010-2011 school year which offered Student a FAPE, the school
year had already started.

Cf. Remand ROA, Resp.’s Exh. 31

(record of Student’s daily attendance for the 2012-2013 school
year, which began on July 30, 2012).

This Court also emphasizes

that the August 23, 2010 IEP, which offered a FAPE, called for
one hour per week of speech-language services.
This Court has considered all of the evidence in the
record, but this Court finds the following particularly relevant:
the benefits that Student clearly received from Loveland’s

8

(...continued)
who previously received special education and
related services under the authority of a
public agency, enroll the child in a private
elementary school or secondary school without
the consent of or referral by the public
agency, a court or a hearing officer may
require the agency to reimburse the parents
for the cost of that enrollment if the court
or hearing officer finds that the agency had
not made a free appropriate public education
available to the child in a timely manner
prior to that enrollment.
17

speech-language services; and the fact that there are no
identifiable current and future services that Defendant could
provide to Student to compensate him for Defendant’s failure to
provide speech-language services in the March 3, 2009 IEP and the
February 26, 2010 IEP.

In light of the evidence in the record,

but particularly in light of these two factors, this Court FINDS
that reimbursement for the speech-language services Student
received at Loveland is the appropriate compensatory education
award for Defendant’s failure to address Student’s speechlanguage needs in the March 3, 2009 IEP and the February 26, 2010
IEP.

This Court REVERSES the Hearings Officer’s award of

prospective services.

This Court now turns to the determination

of the amount of the reimbursement award.
Plaintiffs argue that they are entitled to full
reimbursement for Student’s expenses at Loveland from July 2010
through July 31, 2012.

Plaintiffs presented evidence at the

hearing on remand that Loveland billed them $329,184.42 for that
period.

[Remand ROA, Pets.’ Exh. 39 (Decl. of Maurolyn Gurtiza

(“Gurtiza Decl.”)9 with exhibits)).]

There is no evidence in the

record that Student’s full-time attendance at Loveland for two
years was necessary to catch Student up to where he would have
been if Defendant had addressed his speech-language needs in the

9

Ms. Gurtiza is Loveland’s billing administrator, and she
prepares the bills for Loveland’s students. [Gurtiza Decl. at
¶ 2.]
18

March 3, 2009 and February 26, 2010 IEPs in light of the fact
Student’s IEP sufficiently addressed those needs by providing one
hour of speech-language services per week in the August 23, 2010
IEP.

This Court has found that, for purposes of the compensatory

education analysis, it was reasonable under the circumstances for
Parents to place Student at Loveland in July 2010 and to leave
him at Loveland for the 2010-2011 school year even after
Defendant offered Student a FAPE in the August 23, 2010 IEP.
However, in light of the August 23, 2010 IEP which offered a
FAPE, Student’s IEP team could have developed an IEP in a timely
manner for Student to attend his Home School in the 2011-2012
school year.

Further, at the November 26, 2013 oral argument

before this Court, Plaintiffs’ counsel acknowledged that Student
stopped attending Loveland after July 2012 for reasons
unconnected with this case.

Having considered all of the

relevant circumstances and events, this Court finds that, to the
extent Plaintiffs are entitled to a compensatory education award
consisting of reimbursement of Student’s Loveland expenses,
Plaintiffs are only entitled to expenses associated with the
2010-2011 school year, including expenses associated with the
evaluation period beginning in July 2010 through Student’s
official enrollment in November 2010.10

10

This Court finds that the evaluation period was necessary
to the development of Student’s educational program for the 2010(continued...)
19

Defendant argues that this Court should reduce the
amount requested because: Loveland’s fees are not reasonable; the
services Loveland provided Student are suspect because Loveland
does not follow the professional standards that DOE speechlanguage professionals follow; and a reimbursement award for
compensatory education should only reflect speech-language
services that Loveland provided to Student.
Plaintiffs provided evidence of the fees that Loveland
charged for Student’s program.

[Gurtiza Decl. & Exhs.]

Defendant has not identified any evidence that Loveland charged
different fees or rates for other similarly situated students,
nor has Defendant identified any evidence of the rates that other
similar programs charge their students.

This Court therefore

finds that there is no basis to support Defendant’s contention
that Loveland’s rates are unreasonable.
This Court also rejects Defendant’s allegation that
Loveland’s failure to comply with DOE standards renders the
quality of Loveland’s services suspect.

The United States

Supreme Court has recognized that “the [20 U.S.C.] § 1401(a)(18)
requirements—including the requirement that the school meet the
standards of the state educational agency, § 1401(a)(18)(B)—do
not apply to private parental placements[,]” and therefore the

10

(...continued)
2011 school year at Loveland.
20

Supreme Court rejected the proposition that “reimbursement is
necessarily barred by a private school’s failure to meet state
education standards.”

Florence Cnty. Sch. Dist. Four v. Carter,

510 U.S. 7, 14 (1993).

This Court therefore rejects Defendant’s

argument that this Court should reduce any reimbursement award
because Loveland does not comply with DOE standards for speechlanguage professionals.
As to Defendant’s final argument, Plaintiffs respond
that it is impossible to determine what portion of Loveland’s
charges are attributable to speech-language services because
Loveland provides an integrated program in which the speechlanguage services that Student received were provided in
conjunction with other services, in particular mental health
services.

Plaintiffs emphasize that Student’s September 13, 2012

IEP included mental health services.
(September 13, 2012 IEP).]

[Remand ROA, Pets.’ Exh. 36

They argue that this is evidence that

Student required such services, and they urge this Court to
include the mental health services that Loveland provided Student
in the compensatory education award.
First, as this Court has previously noted, the issue of
whether the September 13, 2012 IEP provided a FAPE is not before
this Court at this time.

Further, even assuming, arguendo, that

mental health services were necessary to provide Student with a
FAPE in the 2012-13 school year, that is not proof that mental

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health services were necessary to provide Student with a FAPE in
the March 3, 2009 IEP and in the February 26, 2010 IEP.

In the

9/11/12 Order, this Court expressly ruled that Plaintiffs had not
carried their burden of proving that the failure to include
behavioral/mental health services in the March 3, 2009 IEP and
the February 26, 2010 IEP constituted a denial of FAPE.
3985686, at *19-20.

2012 WL

Plaintiffs have not presented any factual or

legal grounds that would warrant reconsidering that ruling, and
therefore Plaintiffs are not entitled reimbursement for mental
health services in the compensatory education award.
The Hearings Officer noted that John Loveland testified
that Student had sixty to ninety minutes per week of pull-out
speech-language services at Loveland.

[Decision on Remand at 9.]

Plaintiffs also presented evidence during the hearing on remand
that Student also received speech-language services as an
integrated part of the Mental Health Day Treatment program (“Day
Treatment Program”) and Biopsychosocial Rehabilitation (“BPSR”)
Program.

The monthly rate for the Day Treatment Program is

$6,778.40, and the monthly rate for the BPSR Program is
$4,416.00.
at 1-3.]

[Remand ROA, Pets.’ Exh. 38 (Decl. of John Loveland)

John Loveland also described other components that

Student received: Therapeutic Aide Services - Day Treatment,
$4,968.00 per month; Therapeutic Aide Services - BPSR, $3,312.00
per month; group therapy, $2.87 per five-minute unit; individual

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therapy, $7.47 to $8.04 per five-minute unit; and Intensive
Instruction Services Coordinator (“IISC”) Services, $7.47 per
five-minute unit.

Therapeutic Aide Services refer to one-to-one

support aides who assist students in their Day Treatment Programs
and BPSR Programs.

[Id. at 3-5.]

At the hearing on remand, John

Loveland testified that these services are not severable, and all
were appropriate parts of Student’s program at Loveland.
[3/27/13 Hrg. Trans. at 70-71.]

He also testified that other

therapies are integrated into individual therapy sessions, and,
for example, even occupational therapy was used to address
Student’s language impairment.

[Id. at 71-72.]

Specifically, he

stated “there’s no way we can or want to separate those things
out and just have individual therapies for children.”

[Id. at

72.]
This Court respects both John Loveland’s professional
opinions and the work that Loveland did with Student.

This

Court, however, expressly concluded that, except for the fact
that they did not address Student’s speech/language needs, the
March 3, 2009 IEP and the February 26, 2010 IEP offered him a
FAPE.

2012 WL 3985686, at *20-21.

The compensatory education

award is therefore limited to compensating Student for the loss
of speech-language services during the time periods covered by
those two IEPs.

As previously noted, the August 23, 2010 IEP,

which offered a FAPE, called for the provision of one hour per

23

week of speech-language services.

This Court has also stated

that reimbursement for mental health services is not within the
scope of the compensatory education award.

While this Court does

not question the benefits of integrating the components of
Student’s program at Loveland, this Court cannot, in fashioning
an equitable compensatory education award, grant reimbursement
for all of Loveland’s services based solely on the integration of
speech-language services with the rest of Student’s program,
including extensive mental health services.

Nor can this Court

determine a reimbursement amount that reflects only Loveland’s
speech-language services.

Even if such information were

available, Student could not have continued to attend his Home
School while going to Loveland just for the speech-language
services that Defendant failed to provide to him.

Thus, having

considered all of the evidence in this case, this Court FINDS
that an equitable compensatory education award for the failure to
address Student’s speech-language needs in the March 3, 2009 IEP
and the February 26, 2010 IEP is an award of reimbursement of
twenty-five percent of Student’s Loveland tuition from July 2010
through July 2011.
Plaintiffs presented a billing summary of all of the
amounts that Loveland billed for Student.
39.2.]

[Gurtiza Decl., Exh.

Based on the amounts in the billing summary, Loveland

billed Plaintiffs $177,342.12 for July 2010 through July 2011.

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This Court therefore AWARDS Plaintiffs $44,335.53 as a
compensatory education award for Defendant’s failure to address
Student’s speech-language needs in the March 3, 2009 IEP and the
February 26, 2010 IEP.
CONCLUSION
On the basis of the foregoing, the Hearings Officer’s
June 5, 2013 Remanded Decision Subsequent to U.S. District Judge
Leslie Kobayashi’s September 10, 2012 Amended Order Affirming in
Part, and Vacating and Remanding in Part, the Hearings Officer’s
October 6, 2011 Decision is HEREBY REVERSED.

This Court AWARDS

Plaintiffs $44,335.53 as a compensatory education award for
Defendant’s failure to address Student’s speech-language needs in
the March 3, 2009 IEP and the February 26, 2010 IEP.

This Court

ORDERS Defendant to pay this amount to Plaintiffs, through
Plaintiffs’ counsel, by no later than February 10, 2014.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 17, 2013.

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

I.T., ET AL. VS. DEPARTMENT OF EDUCATION, STATE OF HAWAII; CIVIL
11-00676 LEK-KSC; ORDER REVISION THE HEARINGS OFFICER’S JUNE 5,
2013 DECISION ON REMAND, AND AWARDING COMPENSATORY EDUCATION

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