K. v. Department of Education, State of Hawaii

Filing 41

ORDER AFFIRMING THE ADMINISTRATIVE HEARINGS OFFICERS' FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DOE-SY 1011-126 AND DOE-SY 1112-067. Signed by JUDGE ALAN C KAY on 12/11/2012. (eps)CERTIFICATE OF SERVICEPartici pants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
F.K., by and through her mother, )
)
A.K.,
)
Plaintiffs, )
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, State
)
of Hawaii,
)
)
Defendant.
)
)

Civ. No. 12-00240 ACK-RLP

ORDER AFFIRMING THE ADMINISTRATIVE HEARINGS OFFICERS’ FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND DECISIONS IN DOE-SY 1011-126 AND
DOE-SY 1112-067
PROCEDURAL BACKGROUND
This case comes before the Court on review of two
decisions of the State of Hawaii’s Office of Administrative
Hearings concerning the due process hearings brought by F.K.
(“Student” or “F.K.”), through her mother, against the State of
Hawaii’s Department of Education.
pursuant to 20 U.S.C. § 1415(i).

The court has jurisdiction
Through this lawsuit,

Plaintiffs challenge the Administrative Hearings Officers’
decisions that were issued on April 9, 2012 and April 25, 2012,
both of which concluded that Defendant was the prevailing party.

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On May 8, 2012, F.K. through her parent, A.K., filed a
Complaint for Declaratory and Injunctive Relief against the
Department of Education, State of Hawaii.

(Doc. No. 1.)

By way

of their Complaint, Plaintiffs appealed to the Court from two
separate decisions by two Administrative Hearings Officers:
Cases DOE-SY 1011-126 and DOE-SY 1112-067.

Id. at 2.

On

September 24, 2012, Plaintiffs filed separate Opening Briefs for
each of these administrative appeals.

(Doc. Nos. 34, 35.)

October 8, 2012, Defendant filed separate Responses.
36 and 37.)

On

(Doc. Nos.

Subsequently, on October 22, 2012, Plaintiffs filed

separate Replies.

(Doc. Nos. 38 and 39.)

The Court held a Hearing on the Administrative Record
on December 3, 2012.
FACTUAL BACKGROUND1/
The factual background is set forth in detail in the
administrative hearings officers’ decisions.

(See Doc. Nos. 34-1

and 35-1.)

The parties have not challenged the officer’s factual

findings.

The Court will highlight some of the relevant facts in

this section, but does not intend to reject any of the factual
findings that the administrative hearings officer made.
Student is a 14-year-old female who has a primary

1/

The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
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diagnosis of autism and hearing impairment and is IDEA-eligible
under the category of autism.
SY 1011-126, at 1.)

(Plaintiff’s Opening Brief in DOE-

A Hearings Officer ordered the DOE to

privately place Student at Loveland Academy at public expense and
to pay for the 2008-2009 and 2009-2010 school years.

Id. at 2

(citing Hearings Officer’s Findings of Fact in DOE-SY 1011-126,
at 1-4)).

The Hearings Officer determined that Loveland was an

appropriate placement for Student, and Loveland remains the
current ordered, current pendent and current “stay put” placement
for Student.

Id.

Student currently attends Loveland Academy.

Id. at 1-2.
At the end of the 2009-2010 school year, the DOE began
a new IEP process to remove Student from Loveland Academy.
at 2.

Id.

On February 28, 2011, following several IEP meetings, the

DOE proposed to place Student at King Intermediate School for the
remainder of the 2011 school year.

Plaintiffs contend that the

DOE failed to consider the harmful effects on Student if she were
to transition to King Intermediate for three or four months and
then transition to Castle High School, “one of the worst
performing schools in all of Hawaii.”

Id. at 3.

2011, a Prior Written Notice (“PWN”) was issued.

On March 10,
Id. at 11.

Plaintiffs requested a due process hearing on the DOE’s offer of
FAPE for the 2010-2011 school year, and that request was the
basis of Plaintiffs’ appeal in Case No. DOE-SY 1011-126; one of

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the two administrative decisions appealed by way of Plaintiff’s
instant Complaint.

(See Hearings Officer’s Findings of Fact in

DOE-SY 1112-067, at 3.)
The DOE, alleging that Loveland Academy had prevented
it from fulfilling its Monitoring duties as required under State
law, ceased making Stay Put payments to Loveland for Student’s
services in September 2011.
1112-067 at 7.)

(Plaintiff’s Opening Brief in DOE-SY

On or about December 5, 2011, the DOE, through

its agents and employees, visited Loveland Academy and allegedly
demanded to conduct multiple classroom observational assessments
and reevaluations on Student without the signed informed consent
from Student’s parent that the DOE allegedly was required to
obtain.

(Plaintiffs’ Opening Brief in DOE-SY 1112-067, at 8.)
In response to a December 5, 2011 letter from Loveland,

Defendant DOE declared in an undated letter that it was going to
withhold reimbursement for tuition, related services, and stay
put payments by invoking Act 129's provision to withhold tuition
payments when monitoring is denied.

Id. at 8.

On June 22, 2012, in Civ. No. 12-00136 ACK-RLP – a
companion case also brought by Plaintiffs against the DOE – this
Court issued an Order Granting, As Modified, Plaintiffs’ Motion
for a Preliminary Injunction.
No. 33.)

(Civ. No. 12-00136 ACK-RLP, Doc.

Pursuant to that Order, the Court mandated the DOE to

pay the reasonable expenses for Student’s placement at Loveland

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Academy from June 2, 2011 throughout the pendency of litigation.
Id. at 49-50.

The Court further directed Loveland to submit all

relevant bills and invoices specifying the services provided to
Student each month from June 2, 2011 through the present for the
DOE’s review.

Id. at 50.

The Court also specified that “the DOE

must timely pay the ongoing tuition while Stay Put is in effect
regardless of any disputes, to ensure Student receives
appropriate services . . . .”

Id.2/

Plaintiffs contend that

although Loveland Academy has complied with all monitoring
requests with respect to F.K. “to the DOE’s satisfaction,” the
DOE has still failed to pay one cent in Stay Put payments to
date.

(Plaintiffs’ Reply in 1112-067, at 2.)

STANDARD OF REVIEW
In evaluating an appeal of an administrative decision
under the IDEA, the district court “(i) shall receive the records
of the administrative proceedings; (ii) shall hear additional
evidence at the request of a party; and (iii) basing its decision
on the preponderance of the evidence, shall grant such relief as
the court determines is appropriate.”

2/

20 U.S.C. §

On August 6, 2012, the Court denied Defendant’s Motion
for Reconsideration of the Court’s Preliminary Injunction Order.
(Civ. No. 12-00136 ACK-RLP, Doc. No. 54.)
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1415(i)(2)(C).3/
The statutory requirement “that a reviewing court base
its decision on the ‘preponderance of the evidence’ is by no
means an invitation to the courts to substitute their own notions
of sound educational policy for those of the school authorities
which they review.”
(1982).

Bd. of Educ. v. Rowley, 458 U.S. 176, 206

Rather, “due weight” must be given to the findings in

the administrative proceedings.

Id.

A court’s inquiry in reviewing administrative decisions
under the IDEA is twofold:

“First, has the State complied with

the procedures set forth in the Act?

And second, is the

individualized educational program developed through the Act’s
procedures reasonably calculated to enable the child to receive
educational benefits?

If these requirements are met, the State

has complied with the obligations imposed by Congress and the
courts can require no more.”

Id. at 206-07 (footnotes omitted);

see also Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.
1994).
The amount of deference given to an administrative
hearing officer’s findings is a matter of discretion for the

3/

An amendment to the IDEA, effective July 1, 2006,
affected the subsection number at which this provision appears in
the statute, but did not affect the text of the provision.
Compare 20 U.S.C. § 1415(i)(2)(B) (in effect prior to July 1,
2005) with 20 U.S.C. § 1415(i)(2)(C) (effective July 1, 2005).
Thus, the Court’s analysis on this issue is identical under
either version of the statute.
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court.

See Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d

884, 891 (9th Cir. 1995) (quoting Gregory K. v. Longview Sch.
Dist., 811 F.2d 1307, 1311 (9th Cir. 1987)).

The Court must

“consider the findings ‘carefully and endeavor to respond to the
hearing officer’s resolution of each material issue,’ but the
court ‘is free to accept or reject the findings in part or in
whole.’”

Id. (quoting Gregory K., 811 F.2d at 1311).

“When

exercising its discretion to determine what weight to give the
hearing officer’s findings,” the court may “examine the
thoroughness of those findings” and accord greater deference when
they are “‘thorough and careful.’” Id. (quoting Union Sch. Dist.
v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994)).
DISCUSSION
In this action, Plaintiffs challenge two separate but
related rulings from Administrative Hearings Officers concerning
Student; namely, the April 9, 2012 decision in case DOE-SY 1011126 and the

April 25, 2012 decision in case DOE-SY 1112-067.

In

each of these underlying due process hearings, Plaintiffs
challenged the IEP developed on February 28, 2011 and the related
March 10, 2011 PWN.

The Court addresses each of these challenges

in turn herein.
I.

The IDEA, Generally
The IDEA defines a “free appropriate public education”

as one that, inter alia, is “provided in conformity with the
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individualized education program required under section 1414(d)
of this title.”

20 U.S.C. § 1401(9)(D).

“[W]hen a school

district does not perform exactly as called for by the IEP, the
district does not violate the IDEA unless it is shown to have
materially failed to implement the child’s IEP.

A material

failure occurs when there is more than a minor discrepancy
between the services provided to a disabled child and those
required by the IEP.”

Van Duyn ex rel. Van Duyn v. Baker Sch.

Dist. 5J, 502 F.3d 811, 815 (9th Cir. 2007).

The Ninth Circuit

recently affirmed that “[t]he proper standard to determine
whether a child has received a free appropriate public education
is the ‘educational benefit’ standard set forth by the Supreme
Court in Rowley,” and further noted that
[s]ome confusion exists in this circuit regarding whether
the Individuals with Disabilities Education Act requires
school districts to provide disabled students with
“educational benefit,” “some educational benefit” or a
“meaningful educational benefit.” As we read the Supreme
Court’s decision in Rowley, all three phrases refer to the
same standard. School districts must, to “make such access
meaningful,” confer at least “some education benefit” on
disabled students. For ease of discussion, we refer to this
standard as the “educational benefit” standard.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 n. 10 (9th
Cir. 2010) (internal citations omitted).
If a public school fails to provide a FAPE to a
student, and a parent places that student in an appropriate
private school, a court may require the DOE to reimburse the

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parents for the private school tuition.

See 20 U.S.C. §

1412(a)(10)(C)(ii); Forest Grove Sch. Dist. v. T.A., 557 U.S.
230, 129 S. Ct. 2484, 2488 (2009).
To determine the educational benefit, the Court looks
broadly at the academic, social, health, emotional,
communicative, physical, and vocational needs of a student.
Seattle Sch. Dist., No. i. v. B.S., 82 F.3d 1493, 1498 (9th Cir.
1996). Further, an appropriate education “does not mean the
absolutely best or ‘potential-maximizing’ education for the
individual child.”

Gregory K., 811 F.2d at 1314.

Rather, the

state must only provide “a basic floor of opportunity” for the
student.

Id.

Moreover, although a family’s preferred schooling

may be more beneficial for the student than the DOE’s proposed
placement, this alone does not make the DOE’s placement
inappropriate.

Gregory K., 811 F.2d at 1314.

“‘[A] school

district fulfills its substantive obligations under the IDEA if
it provides an IEP that is likely to produce progress, not
regression, and if the IEP affords the student with an
opportunity greater than mere trivial advancement.’”

T.P. v.

Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir.
2009) (citation omitted); N.S. v. Hawaii, Civ. No. 09-00343 SOMKSC, 2010 WL 2348664, at *4 (D. Haw. June 9, 2010).
Further, Plaintiffs have the burden of proof in this
appeal.

Schaffer ex. rel. Schaffer v. Weast, 546 U.S. 49, 62

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(2005)(“The burden of proof in an administrative hearing
challenging an IEP is properly placed upon the party seeking
relief.”).

See also Van Duyn ex. rel. Van Duyn v. Baker Sch.

Dist. 5J, 502 F.3d 811, 820 (9th Cir. 2007) (“Van Duyn, as the
party objecting to the IEP’s implementation . . . bore the burden
of proof at the administrative hearing.”).

II.

Plaintiffs’ Challenge to DOE-SY 1011-126
Plaintiffs appeal from the Administrative Hearings

Officer’s Findings of Fact, Conclusions of Law and Decision
(“Decision”) dated April 9, 2012.

The Hearings Officer concluded

that: (1) Plaintiffs did not show that DOE had predetermined
F.K.’s proposed placement at King Intermediate School (Decision
at 19); (2) Plaintiffs did not show that DOE failed to properly
assess F.K. (id. at 22); (3) Plaintiffs did not show that the
services offered in the IEP were insufficient in scope and
duration to provide a FAPE (id.); (4) the offer of placement was
specific and informed F.K.’s parents about what F.K.’s proposed
placement would be (id. at 23); (5) the proposed placement at
King was an appropriate placement for F.K. in the least
restrictive environment (id. at 24); (6) the current private
placement at Loveland Academy is also an appropriate placement
for F.K. (id. at 26); and (7) if F.K. had attended King, DOE
could have implemented the program offered in the IEP (id. at
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28).
As a preliminary matter, the Court must decide how much
deference to give to the Hearings Officer’s findings.
Plaintiffs claim that the Hearings Officer “did not
cite to any facts on the record to support his conclusions” and
argue that his findings are therefore entitled to little
deference.

(Opening Brief at 17.)

In fact, the Hearings

Officer’s opinion consists of 29 pages of detailed analysis of
the testimony and documentary evidence that he considered through
six days of evidentiary hearings. Plaintiffs’ allegation that
“the Hearings Officer made no reference to . . . any facts in the
record to support his decision” is erroneous.
at 12.)4//

(See Opening Brief

The lack of page citations to the record is

inconvenient for purposes of review, but the factual basis for
each of the Hearings Officer’s findings is clear and well
explained.
The Court finds that the Hearings Officer’s findings
were “thorough and careful” and are therefore entitled to
“particular deference.”

4/

See Anchorage Sch. Dist., 685 F.3d at

/

Plaintiffs’ own opening and reply briefs often lack
citations to the record. Indeed, Plaintiffs’ opening brief
appears to be largely copy-and-pasted from Plaintiffs’ closing
brief filed before the Hearings Officer (see Administrative
Record on Appeal (“ARA”) No. 25), with almost no argument as to
why the Hearings Officer’s subsequent conclusions were
inadequate. Plaintiffs’ criticisms of the Hearings Officer’s
work are therefore particularly misplaced.
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1053.

The Court will “summarily dismiss” any “impermissible

attempts to second-guess the [hearing officer’s] characterization
and weighing of the evidence.”

R.B. ex. rel. F.B. v. Napa Valley

Unified Sch. Dist., 496 F.3d 932, 942 (9th Cir. 2007).
Plaintiffs appeal all but the sixth of the Hearings
Officer’s findings.

The Court will address these findings in the

order that the Hearings Officer made them.

A.

Whether the Offered Placement Was Predetermined
Plaintiffs argue that DOE had already decided where to

place F.K. before drafting the final IEP.5/

A school district

violates the IDEA if it predetermines placement for a student
before the IEP is developed or steers the IEP to the
predetermined placement.

K.D. ex rel. C.L. v. Dep’t of Educ.,

665 F.3d 1110, 1123 (9th Cir. 2011) (citations omitted).
Predetermination violates the IDEA because the Act requires that
the placement be based on the IEP, and not vice versa.

Id.

(citing Spielberg v. Henrico County Public Schs., 853 F.2d 256,
258-59 (4th Cir. 1988)).

5/

As an initial matter, the Court notes that Plaintiffs’
arguments do not address Student’s current educational situation,
because the IEP in question related to the 2011-2012 school year
rather than the current school year. During the December 3, 2012
hearing, the parties acknowledged that a new IEP was developed in
February 2012; however, Plaintiffs’ counsel represented that he
has not been retained in connection with any request for due
process that Plaintiffs may file concerning this new IEP.
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The Hearings Officer found that Plaintiffs had not
shown that DOE had predetermined placement.

(Decision at 18.)

Indeed, the Hearings Officer found that DOE went through a
“heroic effort” to develop an appropriate IEP for F.K., including
eight planning meetings, several of which were obstructed by
A.K.’s “parent friend”, who is apparently an employee or agent of
Loveland Academy.

(Decision at 18; see, e.g., Hearing Tr. vol.

6, 1060:2-10, Feb. 16, 2012; id. 1061:2-1063:4; Hearing Tr. vol.
4, 724:5-10, Jan. 20, 2012; id. 718:22-720:25; id. 723:7-11.)
Plaintiffs have submitted little argument that DOE
“predetermined” where to place F.K., and the Court can find no
evidence of predetermination in the record.

DOE held extensive

meetings to create the IEP and evaluated F.K. on numerous
metrics.

A.K. was not present at the portion of the final IEP

meeting where placement was discussed, since she chose to walk
out before placement could be discussed.
1061:2-1062:1.)

(Hearing Tr. vol. 6,

Even if King were discussed at IEP meetings

before the IEP was finalized, that would not be conclusive
evidence that DOE had already decided to place F.K. there.

See

K.D. ex rel. C.L., 665 F.3d at 1123; Doyle v. Arlington County
Sch. Bd., 806 F. Supp. 1253, 1262 (E.D. Va. 1992) (noting that
school officials must come to an IEP meeting with “an open mind”
but may have given thought to placement).
The Court sees no evidence in the record that DOE
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predetermined where to place F.K.

The Court therefore AFFIRMS

the Hearings Officer’s finding that Plaintiffs did not met their
burden of showing that DOE predetermined placement.
B.

Whether the IEP Offers a FAPE
Congress enacted the IDEA “to assure that all children

with disabilities have available to them . . . a free appropriate
public education which emphasizes special education and related
services designed to meet their unique needs . . . .”
§ 1400(c).

20 U.S.C.

A free appropriate public education (“FAPE”) is

defined by the IDEA as:
special education and related services that
(A) have been provided at public expense,
under public supervision and direction, and
without charge; (B) meet the standards of the
State educational agency; (C) include an
appropriate preschool, elementary, or
secondary school education in the State
involved; and (D) are provided in conformity
with the individualized education program
required under section 1414(a)(5) of this
title.
20 U.S.C. § 1401(a)(18). A FAPE must be “tailored to the unique
needs of the handicapped child.”

Rowley, 458 U.S. at 181.

To determine whether the IEP offered F.K. a FAPE, the
Court must determine “first whether the State complied with the
procedures set forth in the Act and, second, whether the
individualized education program developed through the Act’s
procedures [was] reasonably calculated to enable the child to
receive educational benefits.”

Amanda J. ex rel. Annette J. v.

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Clark County Sch. Dist., 267 F.3d 877, 890 (9th Cir. 2001)
(quoting Rowley, 458 U.S. at 206-07).
Under the first prong, Plaintiffs’ argument that DOE
predetermined placement is discussed and rejected above.
Plaintiffs also argue that DOE failed to properly assess F.K. to
determine “whether she could be provided a FAPE in a less
restrictive environment without being subject to discrimination
pursuant to the mandates of Section 504 of the Rehabilitation
Act.” (Opening Brief at 9.)

Plaintiffs do not appear to have

raised this argument before the Hearings Officer. (See ARA No. 25
(Petitioners’ Closing Brief.))

The Ninth Circuit has held that a

claim not raised “in [an] administrative complaint or due process
hearing” was not exhausted and therefore not authorized by §
1415(i)(2)(A). J.L. v. Mercer Island Sch. Dist., 592 F.3d 938,
952 (9th Cir. 2010); see D.R. ex rel. Etsuko R. v. Dep’t of
Educ., 827 F. Supp. 2d 1161, 1168 & n.9 (D. Haw. 2011) (exploring
rationale behind exhaustion provision).

The Court therefore

declines to consider this argument.
Under the second prong, Plaintiffs argue that five
services set forth in the IEP are “insufficient in their scope
and duration” and are therefore not reasonably calculated to
enable F.K. to receive educational benefits.

Those services are:

community-based instruction, occupational therapy, physical
therapy, speech/language pathology, and adaptive physical
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education. (Opening Brief at 10.)

The Hearings Officer found

that Plaintiffs did not meet their burden of demonstrating that
these offered services were insufficient in scope and duration to
provide a FAPE. (Decision at 22.) The Court agrees.
First, the IEP required two hours per week of
community-based instruction during the five-week aquatic program
and one hour per week of community-based instruction when the
aquatic program was not occurring.

(ARA Ex. 33 at 353.) The

“clarifications” section of the IEP states that the communitybased instruction will address aquatics, community mobility,
consumer skills, safety skills, and social skills. (Id.)
Plaintiffs have not explained why the Hearings Officer was wrong
to find that this offering was sufficient to constitute a FAPE.
Second, the IEP required 30 minutes per week of
occupational therapy services, along with 15 minutes per month of
occupational therapy consultation for F.K.’s first month at King,
and then 15 minutes of consultation per quarter thereafter (Id.
at 352).

The IEP noted that occupational therapy objectives

would be reinforced throughout the day by the special education
and support staff. (Id.) DOE’s occupational therapist, after
assessing F.K. (Resp. Ex. No. 30 at 446; see Hearing Tr. vol. 5,
917:2-12, Jan. 26, 2012) and attending several of the IEP
meetings (Hearing Tr. vol. 5, 921:3-9), reviewed the IEP and
opined that it met F.K.’s needs (id. at 921:3-12). The Hearings
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Officer was entitled to give weight to this testimony.
Third, the IEP did not require any physical therapy.
DOE’s certified physical therapist evaluated F.K. in June 2010.
(Resps.’ Ex. 32.)

She did not find any specific physical therapy

needs that would require specific physical therapy services.
(Id. at 456.) Instead, the evaluator recommended that F.K.
“should continue to participate in gross motor activities that
are typically practiced at her age.” (Id.) The IEP therefore
includes gross motor activities and goals and requires adaptive
physical education consultation to address gross motor goals.
(TR 1084-85.)

Again, Plaintiffs have not explained why the

physical therapist’s evaluation was incorrect or pointed to any
evidence that would call it into question.

The Court is not

required to accept as true Plaintiffs’ bare allegations that F.K.
“needs physical therapy” and “is not able to participate
effectively in many gross motor activities.” (Opening Brief at
8.)
Fourth, the IEP required 3.5 hours per week of
speech/language therapy (comprising 2.5 hours per week of one-toone work and 1 hour per week of group work) during the school
sessions, and two hours per week during the spring, summer, fall,
and winter breaks.

The IEP also required two hours per week of

speech/language consultation during F.K.’s first quarter at King.
The IEP noted that both speech/language objectives would be

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reinforced throughout the day by the special education and
support staff. The IEP also noted that “if data suggests [F.K.]
needs more” speech/language services, this provision could be
reevaluated.

(ARA Ex. 33 at 351.) The speech-language

pathologist, who specializes in autism, evaluated F.K. with
A.K.’s input.

(Decision at 5 ¶ 20; see Resps. Ex. 27 at 437-41;

Resps. Ex. 28 at 442.)

She reviewed the IEP and found that many

of her recommendations were included in it, and that its goals
were very appropriate.

(Hearing Tr. vol 5, 831:22-833:4; id.

958:7-960:16; Hearing Tr. vol. 6, 1057:21-23.)

She served as a

member of F.K.’s IEP team and was present for all eight IEP
meetings.

(Hearing Tr. vol. 5, 960:1-4; Resps.’ Ex. 13 at 327).
Fifth, the IEP required 30 minutes per month of

adaptive physical education consultation. The district
educational specialist testified that the IEP team planned to
place F.K. “in PE with her typically developing peers with oneto-one supports with an adaptive PE consultant helping adapt or
modify the activities so that she could participate.”
Tr. vol. 6, 1085:11-17.)

(Hearing

Plaintiffs provide no evidence, and the

Court can find none, to support Plaintiffs’ allegation that DOE
“refused” to provide adaptive physical education to F.K.

(See

Opening Brief at 8.)
In sum, the Hearings Officer was correct to find that
Plaintiffs have not shown that the offered services were so

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inadequate as to constitute a denial of FAPE.

Indeed, F.K. has

been offered a raft of services individually designed for her
needs after extensive evaluations of her abilities. “An
‘appropriate’ public education does not mean the absolutely best
or ‘potential-maximizing’ education for the individual child . .
. The states are obliged to provide ‘a basic floor of
opportunity’ through a program ‘individually designed to provide
educational benefit to the handicapped child.’ ” Union Sch. Dist.
v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994) (quoting Longview,
811 F.2d at 1314).

The Hearings Officer found and concluded that

“the special education and related services that the DOE was
offering matched or exceeded those offered by the current private
placement.”

(Decision at 21.)

In light of the deference we

grant the Hearings Officer as to judgments of educational policy,
the Court finds that the services in the IEP were appropriate for
F.K. and provided a “basic floor of opportunity” through a
program “individually designed” for F.K.’s needs.
Finally, Plaintiffs argue that the IEP was inadequate
because it required F.K. to move to King for only a few months
and then almost immediately transition to a high school. (Opening
Brief at 32-33; Reply at 1-2.)

This allegation is erroneous.

The IEP was finalized in February 2011 and covered F.K.’s
education until the end of the 2011-2012 school year – as F.K.’s
mother admitted in response to the Hearings Officer’s

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questioning.

(See TR vol. I at 56:18-23.)

In other words, had

Plaintiffs accepted the placement offer in February 2011, F.K.
would have attended King for at least 15 months.

The fact that

Plaintiffs’ extensive appeals have delayed implementation of the
IEP to beyond the end of that period does not mean that the IEP
was inadequate when drafted.

See, e.g., Tracy N. v. Dep’t of

Educ., 715 F. Supp. 2d 1093, 1112 (D. Haw. 2010) (no denial of
FAPE where “any delay in Student's placement for the 2008-09
school year was due to the re-assessment being conducted at
Mother's request and also due to Mother's cancellation of three
scheduled IEP meetings”) cf. Aaron P. v. Dep’t of Educ., __ F.
Supp. 2d. __, 2012 WL 4321715, at *16 (D. Haw. 2012) (appropriate
inquiry is whether placement was reasonably calculated to provide
student with a meaningful education benefit at the time the IEP
was developed, not at the time of the administrative hearing).

C.

Whether the PWN makes a legally sufficient and proper order
of placement
Under 20 U.S.C. § 1415(b)(1)(B), an educational agency

is required to give written prior notice to parents when it
proposes, or refuses, to initiate or change the educational
placement of a disabled child.
1525.

Union Sch. Dist., 15 F.3d at

The purpose of the requirement is to “create[] a clear

record . . . about when placements were offered, what placements
were offered, and what additional educational assistance was
-20-

offered to supplement a placement, if any.”

Id. at 1526.

Plaintiffs argue that the “special educational
classroom” offered in the PWN is “unspecific.”
19, 21.)

(Opening Brief at

Plaintiffs allege that “[t]he DOE knew it did not have

an appropriate educational setting so it made the offer so vague
that it could cover the definition of any special education class
on any school campus.”

(Opening Brief at 20.)

Plaintiffs claim

that “[d]enial of a valid placement proposal seriously impaired
the Plaintiffs’ right to participate in the IEP process, as the
Parent was not able to determine what was being offered at the
meeting.”

(Opening Brief at 23.)
The Hearings Officer found that DOE made a specific

written offer of placement through the IEP and the PWN (Decision
at 24) which informed parents about what Student’s proposed
placement would be (Decision at 23).
Plaintiffs’ arguments on this point are at best incoherent
and definitely questionable.

Plaintiffs repeatedly imply or

argue that DOE did not give a written offer of placement and did
not name the school in which F.K. was to be placed.

The

detailed, three-page PWN is in the record. (Resps.’ Ex. 14 at
376-78.) The PWN clearly lists the school and the school’s
principal on both the first and last pages (of only three pages).
It contains a detailed description of the classes and services
that F.K. will receive. Plaintiffs cannot possibly believe that

-21-

the written PWN does not exist or does not list the school’s
name.
DOE clearly gave a written offer of placement.
Plaintiffs’ reliance on Union School District v. Smith, 15 F.3d
1519 (9th Cir. 1994), is therefore inapposite.
The Court AFFIRMS the Hearings Officer’s decision that
the PWN was a legally sufficient and proper order of placement.
D.

Whether the Proposed Placement Was in a Least Restrictive
Environment
The education of a disabled child should take place in

the “least restrictive environment.”

34 C.F.R. § 300.552(d).

“While every effort is to be made to place a student in the least
restrictive environment, it must be the least restrictive
environment which also meets the child’s IEP goals.”

County of

San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458,
1468 (9th Cir. 1996).

It is not clear from Plaintiffs’ briefing

whether they challenge the Hearings Officer’s finding on this
point.

For the sake of completeness, the Court notes that it

agrees with the Hearings Officer’s findings. The PWN offers F.K.
a placement on her home school campus near where she lives and
surrounded by neurotypical peers. (Resps.’ Ex. 14 at 376.)

This

is consistent with the “overarching goal of the IDEA[, which is]
to prevent the isolation and exclusion of disabled children, and
provide them with a classroom setting as similar to non-disabled
children as possible.” N.D. ex rel. Parents v. Dep’t of Educ.,
-22-

600 F.3d 1104, 1115 (9th Cir. 2010).

The Hearings Officer found

that the home school was a less restrictive environment than
F.K.’s current private school, because Loveland “is a mental
health treatment facility with an academic component” whereas
King “offers Student numerous opportunities to generalize with
non-disabled peers in school-wide and after school settings.”
(Decision at 24.)
E.

Whether, if F.K. Had Attended King, DOE Could Have
Implemented the IEP There
Plaintiffs list seventeen reasons that they believe DOE

could not have implemented the IEP at King.
8.)

Many have been addressed above.

(Opening Brief at 6-

The Court will now address

the remainder of Plaintiffs’ list.
Plaintiffs claim that King “lacks personnel who are
qualified in ASL” and cannot provide assistive technology
communication and a training program to address F.K.’s auditory
needs.

The Hearings Officer credited the speech-language

pathologist’s testimony that DOE had two teachers who could
provide sign language services for the hearing-impaired.
(Decision at 27; id. at 7 ¶ 28; Hearing Tr., vol. 5, 967:9-20.)
DOE is aware of F.K.’s hearing issues and performed an
audiological evaluation of her in April 2010.

(Resps.’ Ex. 24.)

The IEP states that F.K. will receive “Hearing Services
Consultation” and “Assistive Technology Service” and states that
the assistive technology will be available for “all educational
-23-

tasks that involve communication” and will be evaluated on an
ongoing basis.

Plaintiffs have provided no evidence that would

call this evidence into question.
Plaintiffs claim that King’s classrooms are
overcrowded, some peers are below F.K.’s level, and the classes
are noisy and lack specially designed curriculum and assistive
technology.

The Hearings Officer found, based on the evidence

presented, that F.K. would have been placed in a fully selfcontained classroom with five students.
Hearing Tr., vol. 4, 694:4-8.)

(Decision at 27; see

The Hearings Officer found that

both testimony and photographic evidence showed that F.K.’s
proposed classroom was large, clean, well-organized, and included
“a lot of equipment, supplies, educational materials, and
resources” including visual supports, computers, and an iPad.
(Decision at 27; see Hearing Tr. vol. 4, 601:3-608:6.)

The

photographs were obtained during an inspection for which the
teacher was given only ten minutes’ notice.

(Decision at 11 ¶

56; Hearing Tr. vol. 4, 601:5-22; id. at 602:11-603:1.)

Contrary

to Plaintiffs’ claim that “some peers are below F.K.’s level”,
the Hearings Officer credited the testimony of F.K.’s proposed
teacher that although F.K. would not be the lowest functioning
student, she would be “at the lower end . . . compared with the
other students in her classroom.”

(Decision at 27; Decision at

10 ¶ 53; see Hearing Tr. vol. 4, 700:5-10.)

-24-

The district

educational specialist testified that F.K. would have “peers with
higher level language skills, as well as general education peers”
during lunch, recess, and various activities and after-school
programs.

(Hearing Tr. vol. 4, 663:16-22).

Both the DOE’s

board-certified behavioral analyst and F.K.’s proposed teacher
testified that the classroom is ordinarily quiet.

(Hearing Tr.

vol. 4, 700:15.)
Plaintiffs claim that the home school cannot provide
sufficient after-school community-based instruction or a highly
structured autism-specific after-school program. The DOE’s boardcertified behavioral analyst testified that the home school has
an after-school and community-based instruction program that is
individualized to a student’s needs.
662:24-663:22.)

(Hearing Tr. vol. 4,

He testified as to how F.K.’s program would be

developed and revised.

(Id. at 664:3-23.)

Plaintiffs have not

explained why this program would not fit F.K.’s IEP or the
descriptions provided in the PWN.
Plaintiffs claim that King cannot implement the
following types of goals listed in the IEP (other than those
already addressed above): “functional”; transferring or
generalizing learned skills; communication skills; speech;
reading training; and mental health support.

The Hearings

Officer credited testimony from the district educational
specialist and F.K.’s proposed teacher that the teacher would be

-25-

able to implement the IEP.

(Decision at 26, 27; see Hearing Tr.

vol. 4, 696:2-9; Hearing Tr., vol. 6, 1074:16-1075:11.)6/
Indeed, F.K.’s proposed teacher had attended F.K.’s IEP meetings
and was very familiar with the IEP.
5.)

(Hearing Tr. vol. 4, 696:2-

The Hearings Officer found that DOE had access to the

district school psychologist, an occupational therapist, and a
speech-language pathologist (all three of whom testified at the
hearing (see Decision at 21-22)).

The occupational therapist,

after assessing F.K. and reviewing the IEP, opined that the home
school could implement the IEP.

(Hearing Tr. vol. 5, 921:10-18.)

The district educational specialist also testified that “if there
was something in [F.K.’s] IEP that [her teacher] didn’t have
available, we would make it available.
would get it in that classroom.”

If she needed it, she

(Hearing Tr. vol. 6, 1075:15-

22.) Plaintiffs’ arguments to the contrary are unconvincing.
Plaintiffs claim that F.K. needs a “highly trained
skills trainer for safety reasons.”

Plaintiffs’ brief presents

no argument on this point other than that conclusory statement.
The Court is unable to determine which of the professionals
described in Plaintiffs’ briefing, if any, is the referenced

6/

Plaintiffs elsewhere claim that F.K.’s proposed teacher
is not trained in applied behavioral analysis (“ABA”). The
Hearings Officer credited the testimony of DOE witnesses,
including F.K.’s proposed teacher, that she was trained in ABA.
(Decision at 26-27; see Hearing Tr. vol. 4, 696:10-697:18;
Hearing Tr. vol. 6, 1107:1-23 (“I know for a fact from observing
Pam in action that she is using applied behavioral analysis.”)
-26-

“highly trained skills trainer”.

As described above, DOE had

access to several professional consultants.

DOE also planned to

provide F.K. with one-to-one assistance during the school day.
(Resps. Ex. 13 at 351, 353; Hearing Tr. vol. 6, 1108:15-1109:24.)
Plaintiffs claim that King cannot provide the speech
therapy services that F.K. needs. Plaintiffs’ only ground for
this argument appears to be that DOE has not stated which
specific personnel will provide speech therapy to F.K..

As the

Hearings Officer noted, DOE is not required to designate a
specific person in the IEP; the district educational specialist
repeatedly guaranteed on oath that F.K. would receive services
from a speech-language therapist. (See, e.g., Hearing Tr. vol. 6,
1117:5-25; id. 1120:11-24.)

As Plaintiffs acknowledge, the

speech language pathologist who testified at the hearing and who
served as a member of F.K.’s IEP team stated that she may provide
the services herself. (Hearing Tr. vol. 5, 960:17-961:12.)

The

speech language pathologist testified that she foresaw no
difficulty in implementing the IEP’s goals: “All we need is the
student.”

(Hearing Tr. vol. 5, 960:12-16.)

There is therefore

no evidence that DOE would not be able to provide such services.
Plaintiffs’ more general arguments that the school
“lacks an appropriate educational setting for F.K.” are based
almost entirely on the testimony of Dr. Dukes, the owner of
Loveland Academy.

(See Opening Brief at 23-28.)

-27-

Dr. Dukes’

testimony was contradicted by various DOE witnesses; for example,
Dr. Dukes testified that F.K. would be in a classroom with more
than five students, but F.K.’s proposed teacher testified that
the classroom would contain five or fewer students. (Compare
Hearing Tr. vol. 1, 163:4-7 (Dr. Dukes’ testimony) to Hearing
Tr., vol. 4, 694:4-8 (teacher’s testimony).). Dr. Dukes testified
that the IEP would be difficult or impossible to implement, but
F.K.’s proposed teacher and the various DOE experts - including
the speech language pathologist who could have provided direct
services to F.K. - testified that they could implement the IEP.
(Compare Hearing Tr. vol. 1, 149:22-156:9 (Dr. Dukes’ testimony)
to, e.g., Hearing Tr. vol. 4, 696:2-9 (teacher’s testimony) and
Hearing Tr., vol. 6, 1074:16-1075:11 (district educational
specialist’s testimony).) Neither the Hearings Officer nor the
Court is obliged to accept Dr. Dukes’ assessment of the IEP over
everyone else’s.

The Hearings Officer was entitled to determine

which testimony he found credible and the Court is not inclined
to disturb the Hearings Officer’s credibility determinations
without compelling evidence that they were faulty. Plaintiffs
have pointed to no such evidence and the Court has found none in
the record.
For these reasons, the Court AFFIRMS the Hearings
Officer’s finding that Plaintiffs did not show that the services
offered in the IEP were insufficient in scope and duration to

-28-

provide a FAPE.

The Court therefore AFFIRMS the Hearings

Officer’s finding that DOE could have implemented the IEP as
drafted.

F.

Whether Loveland Is An Appropriate Placement
Finally, DOE requests that the Court find that the

Hearings Officer determined Loveland an appropriate placement
only for reimbursement purposes and not as an appropriate
placement for stay put.

During the December 3, 2012 hearing,

counsel for the DOE represented that Hearings Officers often make
such an additional finding of appropriate placement so that in
case their ruling is reversed they can avoid a new due process
proceeding by relying on this additional finding.

The Court

declines to make the requested finding, since that is not what
the Hearing Officer determined.

The Hearings Officer found that,

despite some reservations regarding the programming at Loveland,
Loveland “is an appropriate placement for Student.”
24.)

(Decision at

The Hearings Officer did not place any restrictions on his

finding.

Given the Hearings Officer’s careful and thoughtful

analysis and extensive review of the evidence and testimony
presented to him, the Court will not disturb that finding.

The

Court does conclude that the Hearings Officer clearly determined
in the due process proceeding before him that King is the
appropriate placement for F.K. (Decision at 28.)
-29-

3.

Challenge to DOE-SY 1112-067
Plaintiffs’ second appeal concerns the Administrative

Hearings Officer’s Findings of Fact, Conclusions of Law and
Decision in DOE-SY 1112-067, dated April 25, 2012.

In that due

process hearing, the Hearings Officer concluded that: (1)
Plaintiffs did not show that DOE’s failure to keep current on
payments to Loveland Academy is a unilateral placement of
Student; (2) the Hearings Officer had no jurisdiction to hold
that Acts 128 and 129 of the 2011 Hawaii Legislature conflict
with federal law or are preempted by federal law;7/ and (3)
Plaintiffs did not show that any reevaluations or attempted
reevaluations by DOE had any material detrimental effect on
Student’s education.

(Hearings Officer’s Findings of Facts and

Conclusions of Law in DOE-SY 1112-067, at 16.)

The Hearings

Officer ordered that Plaintiffs’ claims be dismissed and
determined that the DOE was the prevailing party.

Id.

Plaintiffs’ Opening Brief in this case presents four
central arguments, all of which arise out of the February 29,
2011 IEP and the related March 10, 2011 PWN:

7/

(i) the DOE’s

The hearings officer also concluded that he did not have
jurisdiction with respect to Plaintiffs’ claims regarding
Student’s 2010-2011 IEP, for which Plaintiffs had previously
obtained a final decision in a separate due process hearing, nor
did he have jurisdiction to compel payments by the DOE to
Loveland. Id.
-30-

failure to make timely tuition and stay put payments to Loveland
violates the IDEA and constitutes a unilateral placement and a
denial of FAPE; (iii) Acts 128 and 129 of the 2010 Legislature,
as implemented, are in direct conflict with the IDEA, the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”,
Pub. L. 104-191), and the Family Educational Rights and Privacy
Act (“FERPA”); and (iv) having Student reevaluated more than once
a year by the DOE violates the IDEA and is a material
interruption in her academic progress and is a denial of FAPE.
See Plaintiff’s Opening Brief at 3-4.

Through this appeal,

Plaintiffs request that the Court: (1) reverse the Hearings
Officer’s April 25, 2012 Decision in DOE-SY 1112-067; (2) make a
finding that the failure to make timely tuition and stay put
payments to Loveland Academy is a unilateral placement and a
violation of the IDEA and constitutes a denial of FAPE; and (3)
order that stay put payments to Loveland Academy be made current,
consistent with this Court’s previous orders.

8/

Id. at 25-26.8/

The Court observes that Plaintiffs have already raised
many of the issues herein in the related case of F.K. et al. v.
Dep’t of Educ., State of Hawaii, Civ. No. 12-00136 ACK-RLP. In
fact, on June 22, 2012, the Court considered virtually identical
issues to those presented in the current “appeal.” Namely, in
F.K. v. Dep’t of Educ., Civ. No. 12-00136 ACK-RLP, the Court
considered whether: (1) the DOE’s failure to reimburse is a
unilateral placement and a denial of FAPE; (2) Defendants have
violated 20 U.S.C. 1415(j) (implementing stay put payments); (3)
Defendants violated the Hearing Officer’s Stay Put order; (4) Act
129 of the 2010 Legislature is preempted by federal law; (5) the
DOE’s reevaluations of Student more than once a year violates the
(continued...)
-31-

As a preliminary matter, the Court must decide how much
deference to give to the Hearings Officer’s findings.

The Court

finds that the Hearings Officer’s opinion consists of 16 pages of
detailed and careful analysis of the testimony and documentary
evidence that he considered over two days of evidentiary
hearings.

The administrative hearings officer explains his legal

conclusions and cites specific facts supporting those
conclusions.

See J.W. v. Fresno Unified Sch. Dist., 626 F.3d

431, 441 (9th Cir. 2010); cf. Marc M. v. Dep’t of Educ., Hawaii,
762 F. Supp. 2d 1235, 1242 (D. Haw. 2011); C.P. v. Hawaii, Civ.
No. 09-00393 DAE-BMK, 2010 WL 1962944 at *8 n. 7 (D. Haw. May 17,
2010).

The Court finds that the Hearings Officer’s findings were

“thorough and careful” and are therefore entitled to “particular
deference.”

See Anchorage Sch. Dist. v. M.P., 685 F.3d 1047,

1053 (9th Cir. 2012).

The Court will “summarily dismiss” any

“impermissible attempts to second-guess the [hearing officer’s]
characterization and weighing of the evidence.”

R.B. ex. rel.

F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 942 (9th

8/

(...continued)
IDEA; and (6) Defendants enforce and implement Act 129 in
violation of the IDEA. See Order Granting, As Modified,
Plaintiffs’ Motion for a Preliminary Injunction at 3, Civ. No.
12-00136 ACK-RLP, Doc. No. 33. Plaintiffs admit as much in their
Opening Brief, noting, for example, that “[t]his Court has
already reviewed and answered this question in F.K. v. Dep’t of
Educ., Case No. 1:12-cv-00136 ACK-RLP at Document No. 33, in its
Order Granting as Modified Plaintiff’s Motion for Preliminary
Injunction.” See Plaintiff’s Opening Br. at 19.
-32-

Cir. 2007).

The Court will address these findings in the order

that the Hearings Officer made them.

A.

Whether Acts 128 and 129 are Preempted by Federal Law
The Hearings Officer found and concluded that he was

without jurisdiction to address whether Acts 128 and 129 of the
Hawaii State Legislature are preempted by federal law.

(Hearings

Officer’s Findings of Fact and Conclusions of Law in DOE-SY 1112067, at 11-12.)

Indeed, the Hearings Officer stated that

Plaintiff’s plan to file a lawsuit in federal court concerning
the alleged conflict between Acts 128 and/or 129 and federal law
“may be a proper vehicle for Petitioners to obtain a ruling on
the merits of their federal pre-emption claims.” Id.9/
Counsel for Plaintiffs heeded the Administrative
Officer’s advice and filed a complaint in federal district court
on March 9, 2012, seeking a ruling that Act 129 was preempted by
federal law and accordingly was an improper basis for the DOE to
withhold tuition payments from Loveland Academy.
Dep’t of Educ., Civ. No. 12-00136, Doc. No. 1.

9/

See F.K. v.
The Court

The Hearings Officer also correctly concluded that he did
not have jurisdiction to decide claims related to other students
with respect to Acts 128 and 129, claims concerning matters
beyond the appropriateness of Student’s IEP, or claims related to
the 2010-2011 IEP which was the subject of a separate due process
hearing in Case No. DOE-SY1011-126 (which, as described above, is
challenged in a separate appeal that has been consolidated in
this case and is discussed supra).
See id. at 12-13.
-33-

concludes that Plaintiffs’ federal preemption argument was
improperly brought before the Administrative Hearings Officer,
who correctly found that he lacked jurisdiction.10/

For these

reasons, the Court AFFIRMS the Hearings Officer’s ruling on this
issue.

As noted above, Plaintiffs have an opportunity to

challenge the validity of state law as it allegedly conflicts
with the IDEA and other federal law in Civ. No. 12-00136, which
is also currently pending before this Court.

B.

Unilateral Placement
The Court now considers whether the DOE’s failure to

fund F.K.’s education at Loveland during Stay Put constitutes a
unilateral placement and thus a denial of FAPE.

The Hearings

Officer concluded that Plaintiffs did not show by a preponderance
of the evidence that DOE’s failure to keep current on payments to
Loveland Academy constituted a unilateral placement of Student.
Id. at 16.

The Hearings Officer found that the DOE failed to

make payments to Loveland for F.K.’s services in September,
October, and November of 2011 for “no stated official reason,”

10/

Administrative review is authorized with respect to
matters relating exclusively to “the identification, evaluation,
or educational placement of the child, or the provision of a free
appropriate public education to such child.” See 20 U.S.C.
1415(b)(6)(A); see also H.A.R. 8-60-61(a)(1) and (2). Under
H.A.R. 8-60-67 and 20 U.S.C. 1415(f)(3)(E), a hearings officer’s
jurisdiction is limited to a finding of whether a FAPE was
provided to a student. See Defendants’ Answering Brief, at 3.
-34-

and subsequently failed to make payments for services for
December 2011 and January 2012 because of Loveland’s alleged
failure to comply with Act 129. (Hearings Officer’s Findings of
Facts and Conclusions of Law in 1112-067, at 14.)

However, even

assuming that the DOE had no arguable excuse for nonpayment, the
Hearings Officer stated that “the touchstone consideration
insofar as Student is concerned is whether Student’s learning
experience has been affected in some significant way.”

Id.

Consequently, the Hearings Officer stated that
Plaintiffs had failed to meet their burden of proof in
establishing that the DOE’s cutting off funding had a significant
effect on Student, highlighting that there had been no effect
whatsoever on Student’s programming until January 21, 2012.

Id.

After that date, the Hearings Officer stated, although a skills
trainer who worked with Student three afternoons per week was
apparently let go, Loveland compensated for that loss by “making
do with others or changing Student’s activity schedule around,”
and there was “ no evidence that any of this affected Student’s
learning.”

Id.

The Hearings Officer also stated that

Plaintiffs’ actual claim was that there was a “possibility” that
Student’s learning experience would be detrimentally affected at
some point in the future based upon the DOE’s continued
nonpayment, rather than that the nonpayment had already led to
and that the DOE’s actions “will lead” to a unilateral change in

-35-

Id. at 15.11/

placement.

In their Opening Brief, Plaintiffs argue that the DOE’s
failure to keep current on payments for Student to Loveland
constitutes a unilateral placement and accordingly a denial of
FAPE.

(Plaintiffs’ Opening Brief in DOE-SY 1112-067 at 3.)

Plaintiffs underscore that the DOE is currently over one year
behind, having not made any stay put payments for F.K. to
Loveland Academy since September 2011.

Id. at 7 (citing

Testimony of Dr. Dukes and John Loveland).

Mother testified that

she began receiving invoices from Loveland Academy in “maybe July
or August of 2011,” and that more recently she was told that
F.K.’s services would be cut and/or F.K. could be released from
the school.

(Plaintiffs’ Opening Brief at 12.)

Plaintiffs

assert that Loveland Academy has complied with all monitoring
requests, and the DOE still has not paid one cent in “stay put”
payments.

(Plaintiffs’ Reply in DOE-SY 1112-067, at 2.)
In essence, Defendant counters that “[b]ut for

Loveland’s interference, Loveland would be paid.”
Answering Brief at 22.)

(Defendant’s

Defendant asserts that its failure to

pay for F.K.’s expenses at Loveland is based upon the DOE’s

11/

The Hearings Officer further noted that to the extent
Plaintiffs sought injunctive relief with respect to the alleged
unilateral placement, the Hearings Officer had no jurisdiction to
grant any type of preliminary injunction against the DOE (noting
that Plaintiffs conceded as much in their Closing Brief at page
18 footnote 1). Id. at 15.
-36-

attempt to comply with state law, namely Act 129.

Id.

Further,

Defendant claims that this case more closely mirrors the
situation in DeLeon v. Susquehanna Community School District,12/
wherein the Court held that the District’s decision to stop
transportation reimbursement to a plaintiff who had been driving
her child to school (a partial cut-off of funding) did not amount
to a change in placement.13/
As an initial matter, the Court observes that in
granting Plaintiff F.K.’s motion for a preliminary injunction,
the Court made a limited ruling that F.K. would likely succeed in
showing that, among other things, the DOE’s failure to pay was a
unilateral placement.

(See Civ. No. 12-00136 ACK-RLP, Doc. No.

33, Order Granting Preliminary Injunction at 40.) The Court’s
grant of a preliminary injunction was not a final ruling on the
merits. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)
(“The purpose of a preliminary injunction is merely to preserve

12/

747 F.2d 149, 153 (3d Cir. 1984).

13/
Defendant further argues that even if the Court finds
that the DOE’s withholding of payments to Loveland constitutes a
unilateral change in placement, the law “allows fiscally driven
policies and decision to trump stay put.” Id. at 23 (citing
DeLeon, 747 F.2d at 153 (3d Cir. 1984) (citing Tilton v.
Jefferson County Bd. of Educ., 705 F.2d 800, 804 (6th Cir.
1983)). The Court observes that this defense is inapposite,
because the DOE’s decision to withhold funding for F.K.’s
services at Loveland is based not upon a fiscal policy of the
state or state agency, but rather the DOE’s contention that it
must withhold payment pursuant to state law in light of
Loveland’s refusal to permit monitoring of F.K.

-37-

the relative positions of the parties until a trial on the merits
can be held. . . . [T]he findings of fact and conclusions of law
made by a court granting a preliminary injunction are not binding
at trial on the merits.”)

Furthermore, as discussed in this

section, Plaintiffs had represented there were changes in F.K.’s
services at Loveland at the time the Court granted a preliminary
injunction in Civ. No. 12-00136 ACK-RLP, but in the subject due
process proceeding additional evidence presented established that
in fact there has been no such change.
Although the language of the statute does not reference
payment or reimbursement, the Ninth Circuit Court of Appeals has
interpreted the IDEA’s stay put provision to require a school
district to fund a child’s “current educational placement” at a
private school, when applicable, pending any administrative or
judicial proceedings under the IDEA.

Clovis Unified Sch. Dist.

v. California Office of Admin. Hearings, 903 F.2d 635, 641(9th
Cir. 1990).
The Ninth Circuit Court of Appeals recently addressed
the issue of unilateral placement in N.D. v. State of Hawaii,
Dep’t of Educ., 600 F.3d 1104 (9th Cir. 2010).

In that case, the

court stated:
[W]e hold that ‘educational placement’ means the general
educational program of the student. More specifically we
conclude that under the IDEA a change in educational
placement relates to whether the student is moved from one
type of program – i.e., regular class – to another type –
-38-

i.e., home instruction. A change in educational placement
can also result when there is a significant change in the
student’s program even if the student remains in the same
setting.”
Id. at 1116.

The court also cited favorably to the Third Circuit

Court of Appeals’ opinion in DeLeon14/ for the proposition that a
minor alteration in a child’s school day does not constitute a
change in educational placement.

N.D., 600 F.3d at 1116.

While

Plaintiffs rely heavily on the decision in Drinker by Drinker v.
Colonial School District15/ and similar cases discussed below,16/
the N.D. court stated, “[t]wo cases could be construed as
providing contrary authority to the above conclusion.

In

[Drinker], the Third Circuit indicated that a cut off of public

14/

747 F.2d at 153.

15/

78 F.3d 859 (3d Cir. 1996).

16/

Courts in other circuits have recognized that in some
instances a failure to pay can constitute a unilateral placement
and denial of FAPE. Both the Second and Third Circuits have
noted that “implicit in the maintenance of the status quo is the
requirement that a school district continue to finance an
educational placement made by the agency and consented to by the
parent before the parent requested a due process hearing. To cut
off public funds would amount to a unilateral change in
placement, prohibited by the Act.”
Drinker by Drinker v.
Colonial Sch. Dist., 78 F.3d 859, 865 (3d Cir. 1996) (citing Zvi
D. by Shirley D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982)).
A recent opinion from the U.S. District Court for the District of
Columbia concluded that it was a violation of the IDEA for the
D.C. public school authorities to make late payments because
those actions would lead to a discontinuance of the student’s
placement, therefore constituting an unlawful unilateral
placement. Petties v. Dist. of Columbia, 881 F. Supp. 63 (D.D.C.
1995).
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funds ‘amount[s] to a unilateral change in placement.’

However,

Drinker actually supports our conclusion because the funding cutoff contemplated there is a complete cut-off of funding for
private placement, effectively eliminating private placement as
an alternative setting . . . . Here, there is no such complete
cut-off.”

N.D., 600 F.3d at 1117.

In N.D., the court found that

furlough Fridays did not amount to a “complete cut-off of funding
for private placement, effectively eliminating private placement
as an alternative setting.”

600 F.3d at 1117.

Rather, the court

concluded that the State was continuing to finance educational
placement, just with slightly fewer school days.

Id.

Likewise, here the Court observes that a complete cutoff of funding is not taking place, as the Court has already
issued a Preliminary Injunction Order mandating that the DOE make
Stay Put payments to Loveland for F.K.’s services for the
pendency of the litigation in a related case, regardless of
billing disputes.

(See Civ. No. 12-00136 ACK-RLP, Doc. No. 33 at

49.)
In light of Ninth Circuit case law, the Court concludes
that Plaintiffs have failed to establish that the DOE’s failure
to pay F.K.’s tuition constitutes a unilateral placement and thus
a denial of FAPE.

The Hearings Officer set forth a compelling

argument that Plaintiffs failed to show that any significant
change had actually occurred in Student’s programming, instead

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focusing upon what might happen at some time in the future.

See

also Aliah K. ex rel. Loretta M. v. Hawaii Dep’t of Educ., 788 F.
Supp. 2d 1176 (D. Haw. 2011) (in another IDEA case involving
Loveland Academy, finding that plaintiffs failed to establish
irreparable harm for purposes of a preliminary injunction where
plaintiffs established that student’s exclusion from Loveland for
nonpayment was a “possibility,” but failed to show that there was
an imminent threat of exclusion.)
Mother testified that F.K.’s services had not been cut
and “remain the same,” and also stated that she had never paid
any tuition to Loveland and admitted that Loveland set no time
line on when F.K. would be released from Loveland.
1-54:6-19; Tr. Vol. I-55:17-56:9.

See Tr. Vol.

Moreover, during the December

3, 2012 hearing, defense counsel represented that at an earlier
meeting in chambers before Magistrate Judge Puglisi, Dr. Dukes
stated that no change had occurred in F.K.’s services at
Loveland; directly contradicting Dr. Dukes’ earlier statements.
(See Defendant’s Answering Brief in DOE-SY 1112-067, at 20.)
For these reasons, the Court concludes that no
“significant change” has occurred in Student’s programming as a
result of the DOE’s failure to keep current on some payments to
Loveland Academy.
Accordingly, the Court ADOPTS the Hearings Officer’s
findings and conclusion with respect to the issue of unilateral

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placement.

C.

Multiple Assessments of Student
With respect to whether the DOE improperly conducted

multiple assessments of Student, the Hearings Officer found that
in reality the DOE “made no observations, much less assessments,
of Student during the time period in question,” and accordingly
found that Plaintiffs failed to meet their burden of proof by a
preponderance of the evidence that any reevaluations or attempted
reevaluations by the DOE had any material detrimental effect on
Student’s education. (Hearings Officer’s Findings of Fact and
Conclusions of Law in DOE-SY 1112-067 at 15-16.)

The Court

observes that federal law clearly states:
§300.303 Reevaluations.
(a) General. A public agency must ensure that a
reevaluation of each child with a disability is
conducted in accordance with §§300.304 through
300.311-(1) If the public agency determines that the
educational or related services needs, including
improved academic achievement and functional
performance, of the child warrant a reevaluation;
or
(2) If the child’s parent or teacher requests a
reevaluation.
(b) Limitation. A reevaluation conducted under
paragraph (a) of this section-(1) May occur not more than once a year, unless the
parent and the public agency agree otherwise; and
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(2) Must occur at least once every 3 years, unless
the parent and the public agency agree that a
reevaluation is unnecessary.
20 U.S.C. 1414(a)(2)) § 300.303.

Nevertheless, the Court

observes that Plaintiffs have presented no evidence that DOE
“reevaluated” or attempted to “reevaluate” Student more than once
in a given year during the relevant time period, as the Hearings
Officer stated in his decision.

Defendant asserts that for an

extended period of time, the DOE “had no idea if Loveland was
implementing Student’s IEP or whether standards were being
adhered to,” as the DOE’s last actual observation of Student
occurred in the summer of 2010.
18.)

(Defendants’ Answering Brief, at

Nevertheless, the Court observes that should the DOE seek

to conduct more than one reevaluation on an annual basis, the DOE
must reach an agreement with F.K.’s parent(s) in order to do so.
See 20 U.S.C. 1414(a)(2)) § 300.303.17/

For these reasons, the

Court AFFIRMS the Hearings Officer’s findings and conclusion with
respect to multiple reevaluations of Student.

17/

During the December 3, 2012 hearing, Plaintiffs’ counsel
stated that the issue of assessments has been resolved, because
all of the necessary consents have been obtained and the DOE has
monitored to its satisfaction. However, to the extent Plaintiffs
raise issues of consent requirements under FERPA, the Court finds
that neither Plaintiffs nor Defendants adequately address the
issue of whether the DOE is required to procure consent pursuant
to FERPA to obtain education records for a student attending a
private school that is indirectly funded by the DOE. Should the
issue of FERPA consent arise going forward, the Court directs the
parties to brief this issue for the Court’s consideration in the
related and ongoing case of F.K. v. Dep’t of Educ., Civ. No. 1200136 ACK-RLP.
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CONCLUSION
For the foregoing reasons, the Court AFFIRMS: (1) the
Administrative Hearings officer’s Findings of Fact, Conclusions
of Law, and Decision in DOE SY-1011-126; and (2) the
Administrative Hearings Officer’s Findings of Fact, Conclusions
of Law, and Decision in DOE-SY 1112-067.

IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, December 11, 2012.

________________________________
Alan C. Kay
Sr. United States District Judge

F.K., et al. v. Dep’t of Educ., State of Hawaii, et al., Civ. No. 12-00240
ACK-RLP: Order Affirming the Administrative Hearings officers’ Findings of
Fact, Conclusions of Law, and Decisions in DOE-SY 1011-126 and 1112-067.

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