State of Hawaii, Department of Education v. L. et al
Filing
39
ORDER GRANTING MOTION FOR STAY PUT 33 . Signed by JUDGE HELEN GILLMOR on 10/30/2012. ~ The Administrative Decision, issued on November 29, 2011, addressed the merits of whether ABC was an appropriate placement for Ria. ABC became Rias current educational placement for stay put purposes as of that date. Ria is entitled to stay put at ABC while the case is on appeal. The DOE must continue to pay for Rias tuition and provide transportation to ABC until all proceedings with respect t o the appeal are completed. The DOE must also pay any outstanding fees owed to ABC for Ria's education to date. Defendants' Motion for Stay Put (Doc. 33) is GRANTED.(ecs, )CERTIFICATE OF SERVICEParti cipants 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
DEPARTMENT OF EDUCATION, STATE
OF HAWAII,
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)
)
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Plaintiffs,
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vs.
)
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RIA L., by and through her
)
Parent, RITA L.
)
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Defendants.
)
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_______________________________ )
CIVIL NO. 12-00007 HG-KSC
ORDER GRANTING MOTION FOR STAY PUT
On November 29, 2011, an Administrative Hearings Officer
determined that Defendant Ria L. had been denied a free
appropriate public education, as required by the Individuals with
Disabilities in Education Act, 20 U.S.C. § 1400, et seq. The
Hearings Officer issued a Decision awarding Ria reimbursement and
compensatory relief at her current school, a private placement.
The Department of Education appealed the Administrative
Decision. On July 31, 2012, the District Court issued an Order
Vacating and Remanding the Decision of the Hearings Officer.
The Department of Education stopped paying for Ria’s private
education and providing transportation to the private placement.
1
Ria, through her parent, Rita L., filed Defendants’ Motion
for Stay Put, pursuant to 20 U.S.C. § 1415(j), asking the Court
to order the Department of Education to resume paying for her
private education and providing transportation to the private
placement. (Doc. 33).
The Administrative Decision established the private
placement as Ria’s current educational placement for stay put
purposes. It remains her placement for stay put purposes during
the pendency of the appeal. The Motion for Stay Put is GRANTED.
PROCEDURAL HISTORY
On March 14, 2011, Defendants Ria L., through her parent,
Rita L. (“Parent”), filed an Administrative Request for Due
Process, alleging that Plaintiff Department of Education of the
State of Hawaii (“DOE”) denied Ria a free appropriate public
education (“FAPE”), in violation of the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq.
On November 29, 2011, the Administrative Hearings Officer
(“Hearings Officer”) issued an Administrative Findings of Fact,
Conclusions of Law and Decision (“Administrative Decision”).
(Doc. 1). The Administrative Decision held that Ria was denied a
FAPE, and awarded Ria reimbursement and compensatory education at
Autism Behavioral Consultants Group (“ABC”).
2
On December 28, 2011, the DOE appealed the Administrative
Decision by filing a Complaint in the Circuit Court of the First
Circuit, State of Hawaii. (Doc. 1).
On January 4, 2012, Ria, through her Parent, removed the
action to the Federal District Court.
On July 31, 2012, District Judge David Alan Ezra issued an
Order Vacating and Remanding the Decision of the Hearings
Officer. (Doc. 27).
On August 3, 2012, the case was reassigned to District Judge
Helen Gillmor.
On August 7, 2012, the DOE having ceased providing
transportation and paying for Ria’s educational expenses, Ria
stopped attending ABC. (Defendants’ Motion for Stay Put,
Declaration of Amy Wiech, President and Operations Director at
ABC (“Wiech Decl.”)(Doc. 33).)
On August 22, 2012, Ria, through her Parent, filed
Defendants’ Motion for Stay Put (Doc. 33), pursuant to 20 U.S.C.
§ 1415(j).
On September 10, 2012, the DOE filed Plaintiff’s Memorandum
in Opposition to Defendants’ Motion for Stay Put. (Doc. 36).
On September 14, 2012, Ria, through her Parent, filed
Defendants’ Reply Memorandum in Support of the Motion for Stay
Put. (Doc. 37).
3
On September 20, 2012, a hearing was held on the Motion for
Stay Put (Doc. 33).
BACKGROUND
Ria is a ten-year-old girl who is eligible to receive
special education and related services pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq.
Ria attended public school at Kipapa Elementary School
until February 2011. Around that time, Ria’s Parent placed her in
private school at Autism Behavioral Consultants (“ABC”).
(Administrative Decision at pgs. 31-32, attached to Notice of
Removal (Doc. 1).)
Approximately one month later, Ria, through her Parent,
requested an administrative hearing, alleging that the DOE
violated the IDEA by denying her a free appropriate public
education (“FAPE”).
Following a six-day administrative hearing, the Hearings
Officer found that procedural and substantive errors in Ria’s
2009 and 2010 Individualized Education Programs amounted to a
denial of a FAPE. The Hearings Officer issued an Administrative
Decision on November 29, 2011. The Administrative Decision, in
relevant part, awarded Ria’s Parent reimbursement for tuition and
other relevant expenses paid to ABC during the 2010-2011 school
year, and compensatory education, in the form of placement at ABC
4
for the 2011-2012 school year and summer Extended School Year
(“ESY”) 2012. (Administrative Decision at pg. 49.)
The DOE appealed the Administrative Decision. On July 31,
2012, District Judge Ezra issued an Order Vacating and Remanding
the Decision of the Hearings Officer to determine (1) whether
Ria’s allegations of abuse, which were not addressed by the
Administrative Decision, denied her a FAPE, and (2) if so, the
appropriate remedy.
On August 3, 2012, the case was reassigned from District
Judge Ezra to District Judge Gillmor.
Sometime between May and July 2012, the DOE stopped paying
for Ria’s educational services at ABC and discontinued providing
transportation to ABC.1 As a result, Ria stopped attending ABC on
August 7, 2012. (Motion to Stay Put, Wiech Decl. at ¶ 6).
On August 22, 2012, Ria, through her Parent, filed a Motion
for Stay Put, pursuant to 20 U.S.C. § 1415(j). The Motion
requests that the Court order the DOE to provide transportation
services and payment to ABC during the pendency of the appellate
proceedings.
1
The parties disagree as to when the DOE stopped making
payments to ABC. The DOE claims it paid through summer ESY
(Opposition to Motion for Stay Put at pg. 20). Ria claims the DOE
stopped paying in May (Motion to Stay Put, Wiech Decl. at ¶ 7).
5
ANALYSIS
Ria L., through her Parent, Rita L., petitions the District
Court for an order for stay put at the Autism Behavioral
Consultants Group (“ABC”) during the pendency of this action. The
dispute concerns whether Ria was denied a free appropriate public
education by the Department of Education of the State of Hawaii
(“DOE”), in violation of the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”).
I.
The Stay Put Provision of the IDEA
The IDEA mandates that all children with disabilities are
provided with a free appropriate public education (“FAPE”) that
is designed to meet their unique needs and prepare them for the
future. 20 U.S.C. § 1400(d)(1)(A). Pursuant to the statute, each
child with a disability is provided with a detailed,
individualized instruction plan, known as an individualized
education program (“IEP”).
20 U.S.C. §§ 1401(14), 1414(d). The
IEP is a written statement, prepared at a meeting of qualified
representatives of the local educational agency, the child's
teacher, parent(s), and where appropriate, the child.
The IEP is
reviewed, and if appropriate, revised, at least once each year.
20 U.S.C. § 1414(d).
A parent who disagrees with the contents of an IEP may
challenge it by filing a request for a due process hearing. 20
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U.S.C. §§ 1415(b)(6), 1415(f). A challenge to an IEP activates
the IDEA’s stay put provision.
The stay put provision mandates that a child remain in his
or her “current educational placement” until all proceedings
relating to the challenge have been completed. 20 U.S.C. §
1415(j).
The statute provides:
[D]uring the pendency of any proceedings
conducted pursuant to this section, unless
the State or local educational agency and the
parents otherwise agree, the child shall
remain in the then-current educational
placement of the child, or, if applying for
initial admission to a public school, shall,
with the consent of the parents, be placed in
the public school program until all such
proceedings have been completed.
Id.
The stay put provision seeks to provide a child with a
stable and consistent educational placement, by operating as an
automatic preliminary injunction. Ashland Sch. Dist. v. V.M., 494
F.Supp.2d 1180, 1182 (D. Or. 2007)("[It] strive[s] to ensure the
child is not treated as a ping-pong ball, ricocheting between
placements with each new ruling in the dispute between parents
and school.").
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II.
The Administrative Decision Established ABC as Ria’s Current
Educational Placement for Stay Put Purposes
A.
A Private Placement Qualifies as the Current
Educational Placement when an Administrative or
Judicial Decision Finds it Appropriate
The IDEA does not define "current educational placement,"
but courts and IDEA regulations interpret it as (1) the placement
set forth in a child's last-implemented IEP or (2) a parents'
private placement that is supported by a court or agency ruling.
L.M. ex rel Sam M. v. Capistrano Unified Sch. Dist., 556 F.3d
900, 902-03 (9th Cir. 2008), aff’d, 462 Fed.Appx. 745 (9th Cir.
2011)(following remand on other issues); 34 C.F.R. § 300.518.
A private placement that was unilaterally chosen by a parent
qualifies for stay put purposes when a hearings officer assesses
the merits of its suitability for a child, and issues a decision
finding it appropriate. K.D. ex rel. C.L. v. Dep't of Educ.,
Hawaii, 665 F.3d 1110, 1118 (9th Cir. 2011). A school district's
“consent to the private placement is implied by law." Capistrano,
556 F.3d at 912 (quoting Mackey v. Bd. of Educ. for Arlington
Central Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004)). From that
point forward, the state must pay for the costs of private school
while the dispute is pending, even if the state ultimately
prevails. See id.
An administrative or judicial decision may implicitly
establish a current educational placement for stay put purposes,
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so long as it adjudicates the appropriateness of the private
placement. See Capistrano, 556 F.3d at 912-13; K.D. ex rel. C.L.
v. Dep't of Educ., Hawaii, 665 F.3d at 1118. Courts look to the
depth of the analysis and statements in the hearings officer’s
decision to determine if the hearings officer properly assessed a
placement’s suitability. See e.g. Capistrano, 556 F.3d at 912-13;
Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903
F.2d 635, 641 (9th Cir. 1990); Dep't of Educ. v. M.F. ex rel
R.F., 840 F.Supp.2d 1214, 1233-35, 1239 (D. Haw. 2011), clarified
by No. 11-00047, 2012 WL 639141 (D. Haw. Feb. 28, 2012).
Awards for prospective relief, such as compensatory
education at a private school, also indicate that a hearings
officer sufficiently assessed a placement’s appropriateness for
stay put purposes. See Brennan v. Reg'l Sch. Dist. No. Bd. of
Educ., 531 F.Supp.2d 245, 265-67 (D. Conn. 2008); cf. Sudbury
Public Sch. V. Mass. Dep’t of Elem. & Secondary Educ., 762
F.Supp.2d 254, 269 (D. Mass. 2010)(stay put applies to a hearings
officer’s finding that a placement is appropriate, unless the
hearings officer explicitly addresses the equities behind denying
prospective placement).
B.
The Hearings Officer Adjudicated the Merits of ABC’s
Appropriateness for Ria
The Administrative Decision made a finding on the merits
that Ria’s placement at ABC was appropriate. The Decision awarded
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reimbursement for the costs of Ria’s attendance at ABC and
compensatory education at ABC.
With respect to reimbursement,
the Hearings Officer determined that Ria’s 2009 and 2010 IEPs
were not appropriate, and that Ria’s “placement at the Private
School is appropriate.” (Administrative Decision at pg. 48.)
With respect to compensatory education, the Decision states:
Based on the fact that Student did not have
IEPS during the 2009-2010 and 2010-2011
school years that were individualized to meet
her needs or that addressed each of her
needs, and that Student made minimal progress
during that same period of time, the Hearings
Officer awards Student compensatory education
in the form of placement at [ABC] for the
2011-2012 school year, including summer ESY
2012, and daily transportation services from
home-to-school and back.
(Administrative Decision at pg. 49.)
The Hearings Officer examined the educational services
provided by ABC and their impact on Ria. She specifically focused
on improvements in Ria’s language and communication skills in
finding ABC an appropriate placement. (Administrative Decision at
pgs. 32-34). The assessment of ABC’s appropriateness is analogous
to the hearings officer’s findings in M.F. ex rel R.F., 840
F.Supp.2d at 1234-35, 1239. In M.F. ex rel R.F., the hearings
officer found that a private placement was appropriate based, in
part, on improvements in the child’s communication skills and
behavior while attending the private school. Id. The District
Court in M.F. ex rel R.F. held that the hearings officer’s
10
adjudication of the private placement’s appropriateness for M.F.
established it as his current educational placement for stay put
purposes. Id.
The Administrative Decision’s award of prospective relief,
in the form of compensatory education at ABC, also shows that the
Hearings Officer directly addressed the merits of ABC’s
suitability for Ria’s future educational needs.
C.
The Hearings Officer Found ABC Appropriate for
Reimbursement and Prospective Placement Purposes
Defendants argue that the Hearings Officer found the ABC
placement appropriate for reimbursement purposes only.
Pursuant to 20 U.S.C. § 1412(a)(10)(c), reimbursement is
permitted when the court or hearings officer finds that (1) the
public school failed to provide a FAPE and (2) the private school
is appropriate. C.B. ex rel Baquerizo v. Garden Grove Unified
Sch. Dist., 635 F.3d 1155, 1159 (9th Cir. 2011), cert. denied,
132 S.Ct. 500 (2011).
To be appropriate for reimbursement, a
private placement need only provide some educational benefit to
the child. Id.; 34 C.F.R. § 300.148(c).
In Capistrano, the Ninth Circuit Court of Appeals held that
finding a private school appropriate for reimbursement does not
necessarily establish that school as the child’s current
educational placement for stay put purposes. 556 F.3d at 912. A
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finding of appropriateness is limited to the reimbursement
context when a hearings officer (1) does not consider whether a
placement is suitable for a child’s future educational needs or
(2) finds it inappropriate for prospective placement. Id. at 91213; Huerta v. San Francisco Unified Sch. Dist., No. 11-04817,
2011 WL 5521742, at *5-6 (N.D. Cal. Nov. 14, 2011). In such
cases, there is no implied finding of appropriateness to
establish a current educational placement.
In both Capistrano and Huerta, courts affirmed denials of
motions for stay put relief. In both cases:
•
A child moved for stay put relief based on an initial
judicial or administrative decision that awarded
reimbursement, but not prospective placement, at a
private school.
•
The judge who issued the initial decision later denied
the child’s motion for stay put, expressly stating that
the finding of appropriateness was limited to the
reimbursement context.
•
The initial decision did not consider the placement’s
ability to meet the child’s future educational needs.
In the case before the Court, the Hearings Officer
considered ABC’s ability to meet Ria’s future educational needs
and issued an Administrative Decision awarding prospective
placement at ABC. The Hearings Officer’s finding with respect to
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ABC’s appropriateness is not limited to the reimbursement
context. The Administrative Decision established ABC as Ria’s
current educational placement. Ria is entitled to stay put relief
at ABC.
D.
The Award of Compensatory Education Supports the Claim
that ABC is Ria’s Current Educational Placement
The DOE contends that the Administrative Decision’s award
for compensatory education at ABC through ESY 2012 established
ABC as a temporary placement, and not Ria’s current educational
placement.
If a hearings officer finds that a child is denied a FAPE,
he or she may award prospective relief in the form of
compensatory education services. Park ex rel. Park v. Anaheim
Union High Sch. Dist., 464 F.3d 1025, 1033 (9th Cir. 2006). The
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. Brennan, 531 F.Supp.2d at 265. A compensatory education
award may include placing the student at a private school for a
specified term or until a certain condition is met. Id.
When a hearings officer awards compensatory education at a
private school, along with reimbursement, an additional analysis
has taken place. A compensatory education award usually shows
that a hearings officer adjudicated the merits of a private
placement’s appropriateness for a child’s future educational
13
needs, establishing it as the current educational placement. See
Brennan, 531 F.Supp.2d at 265-67; Huerta, 2011 WL 5521742, at *56.
The time period or condition in a compensatory education
award does not transform a current educational placement into a
temporary placement. See M.F. ex rel R.F., 840 F.Supp.2d at 123940; Brennan, 531 F.Supp.2d at 266-67. In both M.F. ex rel R.F.
and Brennan, the court held that a compensatory education award
for one school year at a private placement created a current
educational placement for stay put purposes. The school district,
in both cases,
was required to pay for the private school until
the placement dispute was resolved, even if the dispute outlasted
the one-year term of the compensatory education award.
An award for compensatory education establishes a temporary
placement only when the administrative decision expressly limits
its finding with respect to the placement’s appropriateness for
the child. See Monticello Sch. Dist. No. 25 v. George L., 102
F.3d 895, 904 (7th Cir. 1996); Leonard ex rel Leonard v.
McKenzie, 869 F.2d 1558, 1564 (D.C. Cir. 1989). In Monticello,
the court denied stay put protection based on an administrative
decision that specifically ordered the child to return to public
school after completing the following semester of private school.
Id. In Leonard, the court reviewed an administrative decision
that found the child’s placement at public school appropriate,
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but allowed the child to complete the semester at the private
school due to the school district’s violations. Leonard, 869 F.2d
at 1564. The administrative decision in Leonard clearly indicated
that the private placement was temporary and the parties were “on
notice” that the child’s placement at private school would only
last for the semester. Id.
The Administrative Decision before the Court here, issued on
November 29, 2011, found that Ria was denied a FAPE and awarded
her reimbursement and prospective relief, in the form of
compensatory education at ABC. In awarding relief, the Hearings
Officer evaluated whether ABC was an appropriate placement for
Ria. ABC became Ria’s current educational placement for stay put
purposes, as of the Administrative Decision’s date of issuance.
The DOE must pay for Ria’s educational services at ABC until the
placement dispute is resolved. The DOE’s obligation did not
terminate at the end-date of the compensatory education award,
ESY 2012.
III. The Hearings Officer’s Finding of Appropriateness
Established ABC as Ria’s Current Educational Placement
During the Pendency of the Dispute
A.
The District Court’s Order Vacating and Remanding the
Administrative Decision Did Not Change Ria’s Current
Educational Placement
Once a private school becomes the current educational
placement for stay put purposes, the state must pay for the
child’s private education at that placement until the dispute
15
between the educational agency and the child’s parents is
resolved. Johnson ex rel Johnson v. Special Educ. Hearing Office,
287 F.3d 1176, 1179 (9th Cir.2002); 34 C.F.R. § 300.518. The
pendency period of the dispute includes appeals to the circuit
court and remands to the hearings officer. See Joshua A. v.
Rocklin Unified Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009);
M.F. ex rel Donna R.F., 840 F.Supp.2d at 1235, 1239.
The Administrative Decision in the case before the Court
here established ABC as Ria’s current educational placement
during the pendency of the DOE’s appeal. District Judge Ezra’s
Order vacating and remanding the Administrative Decision did not
address the Hearings Officer’s findings with respect to ABC’s
appropriateness for Ria. It did not alter Ria’s current
educational placement at ABC. The remand requires the Hearings
Officer to decide whether Ria was denied a FAPE based on the
allegations of abuse in her initial request for a due process
hearing. On remand, Ria’s initial placement dispute is still
pending. ABC remains Ria’s current educational placement for stay
put purposes pending a final resolution of the case.
B.
ABC’s Appropriateness Is Not at Issue in Deciding the
Motion for Stay Put
The DOE argues that ABC is not an appropriate placement for
Ria.
The issue of whether the Hearings Officer properly found ABC
appropriate is not before the Court at this time. The rule of the
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case is established by District Judge Ezra’s Order vacating and
remanding the Administrative Decision.
The District Court Order did not alter the Hearings
Officer’s finding with respect to ABC’s appropriateness. The
Order disagreed with the Hearings Officer’s finding that the DOE
procedurally and substantively denied Ria a FAPE. On remand, the
District Court ordered the Hearings Officer to address whether
Ria's allegations of abuse resulted in the denial of a FAPE, and
if so, the appropriate remedy.
The Court’s analysis in deciding Ria’s Motion for Stay Put
is based on the Hearings Officer’s adjudication of ABC’s
appropriateness. See Joshua A., 559 F.3d at 1040; Dep't of Educ.
v. C.B. ex rel. Donna B., No. 11-00576, 2012 WL 2467741, at *4
(D. Haw. June 26, 2012). The Hearings Officer found ABC
appropriate for Ria’s 2011-2012 placement. The District Court
Order did not change that finding. See M.F. ex rel Donna R.F.,
840 F.Supp.2d at 1235 (vacating reimbursement and compensatory
education awards without reference to stay put relief). ABC
remains Ria’s current educational placement during the pendency
of the dispute.
CONCLUSION
The Administrative Decision, issued on November 29, 2011,
addressed the merits of whether ABC was an appropriate placement
for Ria. ABC became Ria’s current educational placement for stay
put purposes as of that date. Ria is entitled to stay put at ABC
17
while the case is on appeal. The DOE must continue to pay for
Ria’s tuition and provide transportation to ABC until all
proceedings with respect to the appeal are completed. The DOE
must also pay any outstanding fees owed to ABC for Ria’s
education to date. Defendants’ Motion for Stay Put (Doc. 33) is
GRANTED.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, October 30, 2012.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
_________________________________________________________________
Department of Education, State of Hawaii v. Ria L., by and through
her Parent, Rita L.; Civil No. 12-00007 HG-KSC; ORDER GRANTING
DEFENDANTS’ MOTION FOR STAY PUT
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