C. et al v. Department of Education, State of Hawaii
Filing
46
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/30/13. " To the extent Lainey failed to raise issues before the Hearings Officer, she may not raise them for the first time on this appeal. With respect to issues she did raise, the court affirms for the reasons stated above." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LAINEY C., by and through her )
Parents, Maile and Romeo C., )
)
Plaintiffs,
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT
)
OF EDUCATION,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 12-00223 SOM/BMK
ORDER AFFIRMING THE DECISION
OF THE ADMINISTRATIVE
HEARINGS OFFICER
ORDER AFFIRMING THE DECISION OF
THE ADMINISTRATIVE HEARINGS OFFICER
I.
INTRODUCTION.
This court affirms the Findings of Fact, Conclusions of
Law and Decision (“Decision”) of March 27, 2012, issued by
Richard A. Young, an experienced Administrative Hearings Officer.
That decision examined whether Defendant Department of Education
for the State of Hawaii (“DOE”) had denied Plaintiff Lainey C.
the Free and Appropriate Public Education (“FAPE”) required by
the Individuals with Disabilities Education Act (“IDEA”).
The
Hearings Officer determined that the DOE had denied Lainey a FAPE
with respect to the Individualized Education Program (“IEP”) of
January 25, 2011, but had offered Lainey a FAPE with respect to
an IEP of August 4, 2011.
Determining that the unilateral
placement of Lainey at American Renaissance Academy, a private
school, had been an appropriate placement, and that a FAPE had
been denied until the IEP was offered to Lainey on August 4,
2011, the Hearings Officer ordered the DOE to reimburse the
parents of Lainey the private school tuition incurred until
August 4, 2011.
Lainey and her parents do not appeal the part of the
Decision concerning the IEP of January 2011.
They appeal only
the Hearings Officer’s determination that a FAPE was offered to
Lainey via the IEP of August 4, 2011.
The appeal uses a shotgun-
type approach, and the issues on appeal are not clear.
After
struggling to determine what precise matters were being appealed,
this court, on January 25, 2013, asked Lainey to file a
supplemental brief that clearly identified the issues raised in
this appeal, explained where each issue was raised to the
Hearings Officer, and stated what findings or conclusions
relating to the issues were challenged and what evidence or law
supported that challenge.
See ECF No. 31.
On February 15, 2013, Lainey filed her supplemental
brief.
The court gleans from that brief that Lainey is arguing
that the August 2011 IEP did not offer Lainey a FAPE because:
1.
The Hearings Officer erred in determining that
Lainey did not need a one-to-one aide.
2.
The August 2011 IEP lacked appropriate goals
addressing Lainey’s socialization needs.
This meant that there
was no way to measure her progress and identify responsible
providers.
2
3.
Although the August 2011 IEP added social skills
group training, its failure to include annual goals for
socialization skills had the effect of denying the parents of
Lainey a chance to meaningfully participate in developing that
portion of the IEP.
The parents had no way of knowing what the
social skills group training would involve and so could not have
informed discussions about that training.
4.
The academic goals were not based on adequate
Present Levels of Educational Performance (“PLEPs”).
5.
Although Lainey’s PLEPs included sensory issues,
the August 2011 IEP lacked appropriate goals and objectives
addressing her sensory needs.
6.
Mainstreaming was inappropriate.
The court affirms the Hearings Officer.
To the extent
Lainey raises issues on this appeal that were not presented to
the Hearings Officer, she may not litigate those issues now.
With respect to the other issues raised on appeal, Lainey has
failed to meet her burden on appeal.
II.
STATUTORY FRAMEWORK.
“The IDEA is a comprehensive educational scheme,
conferring on disabled students a substantive right to public
education.”
Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298,
1300 (9th Cir. 1992) (citing Honig v. Doe, 484 U.S. 305, 310
(1988)).
The IDEA ensures that “all children with disabilities
3
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).
According to the IDEA, a FAPE consists of:
special education and services that(A) have been provided at public expense,
under public supervision and direction, and
without charge;
(B) meet the school 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 services, conduct and implement an IEP,
and determine an appropriate educational placement for the
student.
20 U.S.C. § 1414.
The student’s FAPE must be “tailored to the unique
needs of the handicapped child” through an IEP.
Board of Educ.
of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181
(1982) (citing 20 U.S.C. § 1401(18)).
The IEP, which is prepared
at a meeting between a qualified representative of the local
4
educational agency, the child’s teacher, the child’s parents or
guardian, and, when appropriate, the child, consists of a written
document containing:
(i) A statement of the present levels of
educational performance of the child;
(ii) A statement of annual goals, including
short-term instructional objectives;
(iii) A statement of the specific educational
services to be provided to the child, and the
extent to which the child will be able to
participate in regular educational programs;
. . . .
(v) The projected date for initiation and
anticipated duration of these services; and
(vi) Appropriate objective criteria and
evaluation procedures and schedules for
determining on at least an annual basis,
whether instructional objectives are being
achieved.
34 C.F.R. § 222.50; see also 20 U.S.C. § 1414(d).
Local or
regional educational agencies must review and, when appropriate,
revise each child’s IEP at least annually.
§ 1414(d)(4).
20 U.S.C.
A school district must have an IEP in effect for
each child with a disability at the beginning of each school
year.
See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a).
“Parental involvement is a central feature of the
IDEA.”
Hoeft, 967 F.2d at 1300.
“Parents participate along with
teachers and school district representatives in the process of
5
determining what constitutes a ‘free appropriate education’ for
each disabled child.”
Id.
Violations of the IDEA may arise in two situations.
First, a school district, in creating and implementing an IEP,
may run afoul of the IDEA’s procedural requirements.
U.S. at 205-06.
Rowley, 458
Second, a school district may become liable for
a substantive violation of the IDEA by drafting an IEP that is
not reasonably calculated to enable the child to receive
educational benefits.
Id. at 206-07.
The school district must
provide the student with a FAPE that is “appropriately designed
and implemented so as to convey” to the student a “meaningful”
benefit.
Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999).
While the IDEA guarantees certain procedural safeguards
for children and parents, the Ninth Circuit has recognized that
not every procedural violation results in denial of a FAPE.
See
e.g., L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909
(9th Cir. 2009)(“Procedural flaws in the IEP process do not
always amount to the denial of a FAPE.”).
Procedural flaws in
the IEP process only deny a child a FAPE when the flaws affect
the “substantive rights” of a parent or child.
Id.
Such
substantive rights include the loss of a child’s educational
opportunity or an infringement on a parent’s opportunity to
participate in the IEP process.
Id.
6
When a public school fails to provide a FAPE, and a
parent establishes that placement at a private school is
appropriate, the IDEA authorizes reimbursement to the parent.
See 20 U.S.C. § 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v.
Dep’t of Ed. of Mass., 471 U.S. 359, 370 (1985).
In addition,
the IDEA includes a “stay put” provision that permits a child to
stay in the child’s current educational placement during the
pendency of any administrative or judicial proceeding regarding a
due process complaint notice.
§ 300.518(a), (d).
See 20 U.S.C. § 1415(j); 34 C.F.R.
A plaintiff may seek a “stay put” order in
the district court even if “stay put” issues were not litigated
in administrative proceedings.
See N.D. v. Haw. Dep’t of Educ.,
600 F.3d 1104, 1110-11 (9th Cir. 2010).
III.
STANDARD OF REVIEW.
Any party aggrieved by a decision of a due process
hearings officer under the IDEA may appeal the findings and
decision to any state court or a United States district court.
20 U.S.C. § 1415(i)(2).
The party challenging the administrative
decision has the burden of proving deficiencies in the
administrative decision.
Seattle Sch. Dist., No. 1 v. B.S., 82
F.3d 1493, 1498 (9th Cir. 1996).
When evaluating an appeal of an administrative
decision, a court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence
7
at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.”
20 U.S.C. § 1415(i)(2)(C).
Under the IDEA, district courts review the hearings
officer’s conclusions de novo.
Ashland Sch. Dist. v. Parents of
Student E.H., 587 F.3d 1175, 1182 (9th Cir. 2009).
However, de
novo under the IDEA “carries with it the implied requirement that
due weight shall be given to [the administrative] proceedings.”
Id. (quoting Rowley, 458 U.S. at 206).
A district court “must
give deference to the state hearing officer’s findings, . . . and
avoid substituting its own notions of sound educational policy
for those of the school authorities which it reviews.”
Id. (internal quotation marks, modifications, and citations
omitted).
A court must consider the findings carefully and
respond to the hearings officer’s resolution of each material
issue.
Capistrano Unified Sch. Dist. v. Warternberg, 59 F.3d
884, 891 (9th Cir. 1995).
The court, however, is free to accept
the findings in part or in whole.
Id.
Greater deference is
appropriate when the findings are “thorough and careful.”
JG v.
Douglas County Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008).
The Third Circuit has stated that “special weight” is due when
the hearings officer has heard live testimony and “found the
testimony of one witness to be more worthy of belief than the
contradictory testimony of another witness,” and “a District
8
Court must accept the state agency’s credibility determinations
unless the nontestimonial, extrinsic evidence in the record would
justify a contrary conclusion.”
L.E. v. Ramsey Bd. of Educ., 435
F.3d 384, 389 n.4 (3d Cir. 2006) (citations omitted).
IV.
FACTUAL BACKGROUND.
It is undisputed that 12-year-old Lainey is autistic
and entitled to receive special education services under the
IDEA.
Compared with other autistic students, Lainey is a “high-
functioning individual.”
See Decision of Hearings Officer,
Finding of Fact 1 (“FoF”), March 27, 2012.
It is also undisputed
that, when she was in preschool, Lainey was eligible to receive
those services, but that the services stopped when she was in
kindergarten.
In the second grade, Lainey again received special
education services, but those services stopped when she was in
the third grade.
See FoF 2 and 5.
In the 2010-11 school year, Lainey was in the fifth
grade at a public school as a general education student.
FoF 7.
On September 6, 2010, her parents sent the DOE a letter
requesting an IEP for her.
FoF 8.
At that time, her parents
were concerned with Lainey’s test scores in math and reading.
Lainey’s teacher was more concerned about her inattentiveness.
See FoF 8 and 9.
Lainey’s general education public school teacher had 32
students in her class at the beginning of the 2010-11 school
9
year.
See FoF 11.
teacher.
In October 2010, the school added another
This allowed the school to reduce the number of
student’s in Lainey’s class to 22.
Id.
The teacher subdivided
her class into small groups of four to five students to teach
socialization and social etiquette skills.
These small groups
taught the children to interact, to help and care for each other,
to share things, and to “group problem solve.”
See FoF 12.
An IEP was developed on January 25, 2011.
Another IEP
was developed on August 4, 2011.
Lainey began attending a private school in the summer
of 2011.
Her parents wrote to the DOE in July 2011, asking the
DOE to pay for the private school tuition.
On September 9, 2011, Lainey and her parents, through
their attorneys, requested an Impartial Hearing, raising several
issues.
A three-day hearing before the Hearings Officer was
conducted from January 31 to February 2, 2012.
On March 27,
2012, after receiving post-hearing briefing, the Hearings Officer
issued his Decision.
See Administrative Record on Appeal (“ROA”)
at 131-53.
10
A.
There is No Argument Before This Court Concerning
the Hearings Officer’s Determination that Lainey
Was Not Due for Her Three-Year Evaluation.
Lainey’s request for Impartial Hearing first argued
that the DOE had failed to conduct the required three-year
evaluation in 2011.
See ROA at 3.
This argument was based on
section 8-60-35(b)(2) of the Hawaii Administrative Rules, which
requires reevaluation of students at least once every three
years.
The Hearings Officer rejected the argument, determining
that Lainey had last been deemed eligible for special education
and related services on January 25, 2011.
Because Lainey had
been evaluated as of January 2011, the Hearings Officer
determined that the applicable three-year reevaluation deadline
was not until January 2014.
See ROA at 143.
Lainey has not appealed this part of the Decision.
B.
The Hearings Officer Determined that Lainey Was
Properly Assessed.
Lainey’s request for Impartial Hearing argued that,
“Pursuant to § 300.304(c)(4) DOE failed to assess[] Lainey in all
areas related to the suspected disability.”
Section
300.304(c)(4) requires the DOE to ensure that “[t]he child is
assessed in all areas related to the suspected disability,
including, if appropriate, health, vision, hearing, social and
emotional status, general intelligence, academic performance,
communicative status, and motor abilities.”
11
The Hearings Officer determined that the DOE “assessed
Student through cognitive, academic, and fine motor assessments”
and noted that a “psychiatric evaluation was also considered.”
ROA at 145.
“Based on the assessment reports and psychiatric
evaluation,” the Hearings Officer concluded that Lainey had not
shown that the DOE failed to properly assess her.
C.
Id.
The Hearings Officer Determined that Mainstreaming
of Lainey Was Proper.
Lainey’s request for Impartial Hearing next argued that
“mainstreaming” her was “inappropriate due to Lainey’s unique
needs related to her inattention and lack of socialization
ability and the teacher’s inability to address these needs
without appropriate supplementary aids and services which have
not been authorized.”
ROA at 4.
The Hearings Officer rejected
this argument.
Section 8-60-15 of the Hawaii Administrative Rules
states:
(1) To the maximum extent appropriate,
students with disabilities . . . are educated
with students who are nondisabled; and
(2) Special classes, separate schooling, or
other removal of students with disabilities
from the regular educational environment
occurs only if the nature or severity of the
disability is such that education in regular
classes with the use of supplementary aids
and services cannot be achieved
satisfactorily.
12
The Hearings Officer determined, “Based upon the
relatively low level of Student’s disability, the supplemental
aids and services are appropriate to achieve satisfactory
performance in a regular education classroom.”
D.
ROA at 147.
The Hearings Officer Determined that the Goals and
Objectives Regarding Lainey’s Socialization and
Sensory Needs Were Adequate.
Lainey’s request for Impartial Hearing next argued
about her socialization and sensory needs.
She contended that
the IEP of January 25, 2011, failed to contain PLEPs regarding
“socialization skills even though it was clearly a unique
educational need.”
Lainey argued that the IEP of January 25,
2011, lacked annual goals and short-term objectives to address
socialization issues.
Lainey noted that the IEP of August 4,
2011, contained one social goal addressing her frustration and
lack of personal space, but argued that it failed to address “how
to socialize.”
Although the IEP of August 4, 2011, included
social skills group training, Lainey complained that, because
there were no annual socialization goals in that IEP, her parents
could not understand what the social skills group was working on.
Lainey also complained that three of the five annual goals in the
IEP of August 4, 2011, were academic, even though she had
appropriate “grade level academic abilities.”
Lainey also contended that, although the IEPs of
January 25 and August 4, 2011, identified sensory issues, they
13
failed to contain annual goals concerning sensory issues and
provided no services to address those issues.
The Hearings Officer agreed that the IEP of January 25,
2011, failed to properly address Lainey’s lack of socialization
skills, as well as her inattentiveness.
See ROA at 146-47.
The
Hearings Officer determined that this was a denial of a FAPE.
Id. at 147.
This determination has not been appealed.
The Hearings Officer reached a different conclusion
with respect to the IEP of August 4, 2011.
That IEP contained a
PLEP for “Social/emotional/behavioral skills.”
Ex. 3 at 12.
See Petitioners’
That PLEP stated:
Lainey is currently in the 4th grade.
According to her teacher’s report, they
perceive her as displaying minimal outwardly
problematic behaviors at about the same
frequency as others her age. They did,
however, indicate inattentive and off task
behaviors in that Lainey sometimes seems to
drift and fidget during instruction. Their
ratings place her in the low range for school
problems. This implies that they perceive
Lainey as having some problematic behaviors
(i.e. attention span, working in class) that
may interfere with her academic performance.
Id.
The Hearings Officer noted that the IEP contained six
pages of goals and objectives.
He stated:
To address Student’s socialization and
communication needs, one of the goals and
objectives in this IEP called for Student to
work independently, have necessary materials,
follow an organizational checklist, and
participate appropriately in large academic
14
group settings. Another goal in the August
4, 2011, IEP called for Student to use coping
skills, appropriate personal space, to take
on the perspective of others, to control
emotions, work on body language, stay on
topic, and refrain from inappropriate
comments.
ROA at 149-50.
Although a psychologist testified that the social
skills group training for 30 minutes per week and the other
offered services were not enough, the Hearings Officer disagreed.
The Hearings Officer was persuaded by a behavioral health
specialist who testified that the “social skills group training,
autism consultation for 4 hours per month, modeling, and
preferential seating next to on-task peer were appropriate to
address Student’s behavioral needs.”
ROA at 150.
The Hearings
Officer noted that these same items also addressed her
socialization needs.
Id.
The Hearings Officer noted that,
according to the behavioral health specialist, Lainey “did not
need a 1:1 as this could lead to social isolation and less
independence.”
Id.
The Hearings Officer noted that, although three of the
five goals addressed Lainey’s academic needs, Lainey was in no
position to complain about their inclusion because her parents
had asked that those academic goals be included in the IEP.
ROA at 150.
15
See
The Hearings Officer determined that the IEP of August
4, 2011, had appropriate goals addressing Lainey’s socialization
and sensory issues.
V.
See ROA at 150-51.
ANALYSIS.
Lainey and her parents only appeal the Decision to the
extent it determined that the IEP of August 4, 2011, offered her
a FAPE.
A.
Because Lainey Did Not Raise Any PLEP Inadequacy
Before the Hearings Officer, She Failed to Exhaust
Her Administrative Remedy With Respect to That
Issue.
Lainey argues that the academic goals in the IEP of
August 2011 were not based on adequate academic PLEPs.
Because
that argument was not properly raised before the Hearings
Officer, it cannot be the subject of the appeal to this court.
In Payne v. Peninsula School District, 653 F.3d 863,
874-75 (9th Cir. 2011), the Ninth Circuit, sitting en banc,
determined that, if a remedy is available under the IDEA, the
IDEA requires exhaustion of a claim for that remedy.
The Ninth
Circuit stated, “[I]f a disabled student files suit under the ADA
and challenges the school district’s failure to accommodate his
special needs and seeks damages for the costs of a private school
education, the IDEA requires exhaustion regardless of whether
such a remedy is available under the ADA, or whether the IDEA is
mentioned in the prayer for relief.”
Id. at 875.
Similarly,
“exhaustion is required in cases where a plaintiff is seeking to
16
enforce rights that arise as a result of a denial of a free
appropriate public education, whether pled as an IDEA claim or
any other claim that relies on the denial of a FAPE to provide
the basis for the cause of action (for instance, a claim for
damages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794, premised on a denial of a FAPE).”
Lainey argues to this court that the August 2011 IEP’s
failure to include appropriate reading and math PLEPs constituted
the denial of a FAPE.
The Ninth Circuit has noted that the
“scope of the administrative hearing mandated by section
1415(b)(2) is limited to the ‘complaint’ raised to obtain the
hearing.”
County of San Diego v. Cal. Special Educ. Hearing
Office, 93 F.3d 1458, 1465 (9th Cir. 1996).
Because Lainey did
not include this issue in her request for Impartial Hearing, the
issue was not before the Hearings Officer.
See M.D. v. Dep’t of
Educ., 864 F. Supp. 2d 993, 1004 (D. Haw. 2012).
At most,
Lainey’s due process hearing request stated, “The information in
the PLEP indicates that Lainey has grade level academic abilities
yet 3 of 5 annual goals in the 8/4/11 IEP are academic.”
This
statement did not raise before the Hearings Officer the issue of
whether the academic goals were based on adequate PLEPs.
Instead, the statement suggests that Lainey’s “grade level
academic abilities” should have led to PLEPs that were not
academic at all.
17
Under Payne, Lainey was required to exhaust her claims
before appealing any decision on those issues to this court.
Having failed to properly raise the issue to the Hearings
Officer, Lainey may not now raise it for the first time on
appeal.
See Marc M. v. Dept. of Educ., 762 F. Supp. 2d 1235,
1241 (D. Haw. 2011) (“arguments not raised in front of a hearings
officer cannot be raised for the first time on appeal to the
district court”).
B.
The Court is Not Persuaded by Lainey’s Argument
That Her Socialization Needs Were Known, But Not
Appropriately Identified or Addressed in the IEP
of August 4, 2011.
Lainey argues that, although her educational needs were
known, they were not appropriately identified or addressed in the
IEP of August 4, 2011.
On pages 12 and 13 of the Opening Brief,
Lainey argues that the evidence establishes that she is
“significantly delayed in the development of social communication
and most of the skills that are necessary to have normal and
effective social interactions with adults and peers” and that
“her lack [of] social and emotional abilities [is] creating a
significant barrier to educational achievement and social
development.”
On pages 20 through 31 of the Opening Brief,
Lainey complains that the annual goals concerning her
socialization were inadequate.
Lainey again asserts on pages 7
18
to 11 of her supplemental brief that the August 2011 IEP lacked
appropriate goals addressing Lainey’s socialization skills.1
Lainey challenges the Findings of Fact made by the
Hearings Officer concerning the socialization goals contained in
the August 2011 IEP.
Specifically, Lainey challenges Findings of
Fact 62, 63, 64, 68, 69, and 71, which state:
62. The August 4, 2011 IEP has multiple
goals, with short-term objectives which
include working independently and remaining
attentive, to be organized and follow an
organizational checklist, and to participate
appropriately in large academic group
settings. Additionally, other short-term
goals were added such as utilizing coping
skills by asking for a break, taking a short
walk, or asking for assistance.
63. The August 4, 2011 IEP has 6 pages of
goals and objectives. To address Student’s
socialization and communication needs, one of
the goals and objectives in this IEP called
1
To the extent Lainey is arguing that the annual goals
pertaining to things other than socialization were insufficient,
she failed to exhaust those arguments. At most, her request for
Impartial Hearing states with respect to annual goals, “In the
IEP of August 4, 2011, a social skills group training has been
added but since there are no annual goals for socialization
skills there is no way for Parents to understand what this group
might be working on thus denying them meaningful parental
participation.” ROA at 4. Accordingly, when she mentions on
page 23 of her opening brief that the annual goals do not
appropriately address Lainey’s behavioral needs, autism, or
expressive-receptive language disorder, those claims have not
been exhausted and may not be raised for the first time on this
appeal. Nor did Lainey raise before the Hearings Officer the
issues of whether the goals concerning socialization were
measurable or who was responsible for implementing those goals.
Lainey similarly failed to raise the issue of whether a social
skills program was necessary to the Hearings Officer. Having
failed to properly raise those issues below, she may not raise
them for the first time on this appeal.
19
for Student to work independently, have
necessary materials, follow an organizational
checklist, and participate appropriately in
large academic group settings.
64. Another goal in the August 4, 2011 IEP
called for Student to use coping skills,
appropriate personal space, to take on the
perspective of others, to control emotions,
work on body language, stay on topic, and
refrain from inappropriate comments.
. . . .
68. However, the behavioral health specialist
opined that the social skills group training,
autism consultation for 4 hours per month,
modeling, and preferential seating next to
on-task peer were appropriate to address
Student’s behavioral needs.
69. The behavioral health specialist further
opined that Student did not need a 1:1, as
having a 1:1 can lead to social isolation and
less independence.
. . . .
71. It is noted that the August 4, 2011 IEP
doubled Student’s special education minutes
to 300 minutes per week. Additionally, 4
hours per month of autism consultation to
discuss new strategies, and social skills
group training for 30 minutes per week, were
added. Further, the August 4, 2011 IEP added
modeling and preferential seating next to
on-task peer to address Student’s
socialization needs. As testified by the
SSC, these added services and supplemental
aids were recommended in the evaluations done
preceding the development of the August 4,
2011 IEP.
Lainey is challenging not whether goals were included in the IEP
but whether the stated goals were appropriate.
20
For example, on page 8 of her supplemental brief,
Lainey argues that Findings of Fact 62 and 63 are clear error
because they do not address how Lainey was to socialize.
Page 6
of the supplemental brief argues that Findings of Fact 68 and 69
are clear error because they address behavioral, not
socialization, needs.
But Findings of Fact 68 and 69 simply
describe testimony of the behavioral health specialist.
Lainey
does not say, much less show, that the summaries are inaccurate
or somehow misstate actual testimony.
Finding of Fact 63
specifically addresses the August 2011 IEP’s goals for
socialization: “To address Student’s socialization and
communication needs, one of the goals and objectives in this IEP
called for Student to work independently, have necessary
materials, follow an organizational checklist, and participate
appropriately in large academic group settings.”
Lainey also argues that the Hearings Officer erred in
Finding of Fact 69 when he stated that, according to a behavioral
health specialist, Lainey did not need a one-to-one aide, as that
could lead to social isolation and less independence.
unclear why this finding is erroneous.
It is
Shelley Dalton, a
behavioral health specialist, testified that, at the IEP meeting
of August 4, 2011, the team wanted to try a social skills group
and autism consultation before implementing a one-to-one aide.2
2
Lainey argues to this court that the decision regarding the
one-to-one aide was not Dalton’s decision to make. This argument
21
See Transcript at 640-41.
Dalton testified that, when a student
is shadowed by an adult helper, “the risk is that you become even
more socially isolated, that you become less independent.”
at 640.
Id.
Dalton further testified that, “It doesn’t necessarily
improve socialization.”
Id.
While Dalton did not testify that
Lainey would never need a one-to-one aide, Finding of Fact 69
appears to draw the inference that a one-to-one aide was not
advisable at the time in issue.
This is an inference that can
reasonably be drawn from Dalton’s testimony.
Lainey cites the testimony of her teacher to show the
alleged error by the Hearings Officer with respect to the one-toone aide.
Lainey’s teacher testified that, in the first semester
of Lainey’s fourth-grade year, it would have been “helpful” to
have an aide for Lainey.
Page Id #341.
See Hazama Test. at 35, ECF No. 37-1 at
However, being “helpful” is not the same as being
necessary for provision of a FAPE.
Lainey also argues that, according to Janet R.
Fitzgerald, a psychologist, Lainey needed a social skills program
with “a lot of direct practice, one on one learning about
emotions in herself and learning about perspectives of other
people before it would make sense for her to really do a lot of
social skills work with other people.”
See Transcript at 317.
assumes Dalton made that decision when, in fact, the decision not
to give Lainey a one-to-one aide was made by her IEP team, not
Dalton.
22
Fitzgerald testified that the importance of daily practice with
respect to social reciprocity and conversation skills “cannot be
overstated.”
Id. at 322.
Fitzgerald recommended that Lainey
receive “at least 15 to 20 hours per week” of intensive direct
teaching and behavioral coaching “to address her communication
and social skills.”
See Petitioners’ Exhibit 8 at 65.
The
Hearings Officer acknowledged Fitzgerald’s opinion in Finding of
Fact 67, which stated, “Psychologist J.F. opined that the social
skills group training for 30 minutes per week and other services
were not enough as Student needs more intense services.”
The
Hearings Officer was not required to order a one-to-one aide
based on Fitzgerald’s opinion.
Faced with testimony by Dalton,
the Hearings Officer determined that a one-to-one aide was not
necessary under the circumstances.
This court does not view this
determination as unsupported by the record or otherwise
erroneous.
The Hearings Officer appears to have based his
Decision as to the one-to-one aide on a number of factors.
For
example, the IEP of August 4, 2011, offered Lainey 300 minutes
per week of special education services in the general education
setting.
See FoFs 66 and 71; Petitioners’ Ex. 3 at 16 and 24.
Lainey was also to receive 30 minutes per week of social skills
group training and four hours per month of “Autism consultation-discuss new strategies.”
See FoF 71. The Hearings Officer
determined that the IEP of August 4, 2011, added modeling and
23
preferential seating to address socialization needs.
and 71.
See FoFs 66
The Hearings Officer, noting testimony on behalf of the
DOE, found that the strategies in the IEP of August 4, 2011,
addressed Lainey’s needs.
See FoF 72.
Lainey fails to meet her burden on this appeal of
demonstrating error by the Hearings Officer with respect to the
issue of whether the August 2011 IEP denied her a FAPE by failing
to appropriately identify or address her known educational needs.
C.
Mainstreaming.
Lainey contends that the “fully mainstreamed general
education classroom without appropriate supports in this case was
inappropriate.”
See Opening Brief at 13 and 31.
The Hearings
Officer disagreed, concluding that the DOE was offering
appropriate supports when it offered general education in
connection with occupational therapy consultation once a week, a
visual schedule/planner, a small group setting, extended time,
self-regulation strategies, group counseling once a week, and
checking of assignments.
147.
See Conclusions of Law at 18, ROA at
The Hearings Officer determined that these supplemental
aids and services, when examined in the light of Lainey’s
relatively “low level” of disability, were appropriate.
Id.
Although Lainey argues that her “placement in a large,
general education classroom was not based on her needs as
identified in her IEP in order for her to receive educational
24
benefits,” see Lainey’s Supplemental Brief at 17-18, ECF No. 35,
Lainey does not explain with citations to the record and law why
something other than mainstream education was required.
She
therefore shows no error.
D.
Lainey Has Not Met Her Burden of Demonstrating
that Her Parents Were Denied a Chance to
Meaningfully Participate in the Development of the
August 2011 IEP.
In the Supplemental Aids and Services section of the
IEP of August 2011, Lainey was offered 30 minutes per week of
social skills group training in the general education setting.
Lainey argues that her parents were deprived of meaningful
participation in the formation of her IEP because they could not
tell from the IEP what the social skills group training consisted
of.3
Lainey’s father testified that he heard his wife ask
Dalton, the behavioral health specialist, whether Dalton would be
responsible for the social skills group training.
He testified
that Dalton told his wife that Dalton might be responsible for
the group training, but someone else might be.
See Test. at 286-
87, ECF No. 37-1, Page ID #337.
Lainey fails to meet her burden on this appeal of
demonstrating that her parents were denied a chance to
3
To the extent Lainey is arguing that her parents were
denied meaningful participation because there were inadequate
socialization goals in the IEP of August 2011, Lainey has failed
to demonstrate the inadequacy of the goals with respect to her
socialization.
25
meaningfully participate in the formation of her August 2011 IEP
based on a reference to social skills group training.
It was
incumbent on Lainey to explain to this court how she was denied a
FAPE through an offer of 30 minutes per week of social skills
group training.
Instead of doing so, Lainey generally cites 34
CFR § 300.322, without describing which part of it was allegedly
violated.
Lainey.
This court has no duty to comb through the record for
Without an explanation as to why Dalton should have
known who would be conducting the group sessions and why her
failure to identify a specific person denied Lainey’s parents
their right to meaningfully participate in developing the IEP,
Lainey shows no error.
E.
The IEP of August 2011 Adequately Addresses
Sensory Issues.
In the PLEPs contained in the IEP of August 2011, the
IEP team notes that Lainey is often distracted by background
noise, noisy environments, and people moving around.
The PLEPs
then state that “Lainey’s sensory processing difficulties appear
to be impacting on her ability to focus and attend within her
learning environment.
She would benefit from supports
(redirection, visual schedules, learning strategies, etc.) to
help her within her classroom setting.
The strategies can also
be carried over into the home setting.”
The PLEPs also note,
“Most of her sensory behavior like repetitive tapping and moving,
26
was observed to be within a similar range to that of her peers in
duration, frequency and intensity.”
Lainey’s due process hearing request stated that,
despite the PLEPs’ reference to “sensory issues,” the IEP of
August 2011 lacked annual goals and services addressing the
“sensory issues.”
See ECF No. 36-3 at Page ID #315.
The Hearings Officer concluded that Lainey had failed
to demonstrate that the IEP of August 2011 lacked goals, or
contained inappropriate goals, addressing Lainey’s sensory
issues.
See Conclusions of Law at 21-22.
On this appeal, Lainey fails to meet her burden of
demonstrating that the Hearings Officer erred.
Lainey does not,
for example, demonstrate that just because a PLEP discusses
sensory issues, an annual goal concerning those sensory issues
must be part of an IEP.
Lainey may not simply raise an issue and
leave it to this court to determine whether she is correct or
not.
27
VI.
CONCLUSION.
To the extent Lainey failed to raise issues before the
Hearings Officer, she may not raise them for the first time on
this appeal.
With respect to issues she did raise, the court
affirms for the reasons stated above.
IT IS SO ORDERED.
DATED: Honolulu, April 30, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Lainey C., et al. v. State of Hawaii, Department of Educ., Civ. No. 12-00223 SOM/BMK;
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER
28
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