K. et al v. Department of Education, State of Hawaii

Filing 46

ORDER Affirming in Part and Reversing in Part the Administrative Hearing Officer's Decision on May 24, 2012 in DOE-SY 1112-047 re 40 . Signed by JUDGE ALAN C KAY on 02/13/2013. (eps) -- The Court AFFIRMS the AHO's Fi ndings of Fact, Conclusions of Law, and Decision in DOE-SY 1112-047 dated May 24, 2012, except for the AHO's conclusion that Haw. Rev. Stat. § 302A-443(a)(2) bars Plaintiff Sam K.'s claim for tuition reimbursement, which is REVERSED. T he Court finds that Plaintiffs are entitled to reimbursement 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
)
)
SAM K., by and through his
PARENTS, DIANE C. and GEORGE K.,)
)
Plaintiffs, )
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, State )
of Hawaii,
)
)
Defendant. )
)

Civ. No. 12-00355 ACK-BMK

Order Affirming in Part and Reversing in Part the Administrative
Hearing Officer’s Decision on May 24, 2012 in DOE-SY 1112-0471/
I.

PROCEDURAL BACKGROUND

This case comes before the Court on review of the
decision of the State of Hawaii’s Office of Administrative
Hearings concerning the due process hearings brought by Sam K.

1/

At the January 25, 2013 hearing for this appeal,
Defendant’s counsel conceded that (1) Sam’s placement was
continuously bilateral from the 2008 placement until the 20102011 school year, (2) Plaintiffs’ claim was timely because the
two-year statute of limitations applies to a bilateral placement,
and (3) Parents were therefore entitled to reimbursement. Rough
Transcript, Sam K. v. Haw. Dep’t of Educ., Civ. No. 12-00355 ACKBMK at 25-27 (“THE COURT: So wasn’t the status of the child at
Loveland still a bilateral placement? [DEFENDANT’S COUNSEL]:
Based on the administrative hearing officer’s decision, I would
have to agree . . . . THE COURT: So you agree that the parents
are entitled to reimbursement then? Because the two-year statute
of limitations applies where there’s a bilateral placement.
[DEFENDANT’S COUNSEL]: Given the situation, Your Honor I would
have to agree with the Court on that issue.”). Nevertheless, the
Court issues its following order, in full.
-1-

(“Student” or “Sam”), by and through his parents Diane C. and
George K. (“Parents”), against the State of Hawaii’s Department
of Education (“DOE”).

The Court has jurisdiction pursuant to 20

U.S.C. § 1415(i).
On June 20, 2012, Plaintiffs filed a Complaint against
the DOE.

ECF No. 1.

By way of their Complaint, Plaintiffs

appeal the Administrative Hearings Officer’s Findings of Fact,
Conclusions of Law, and Decision issued on May 24, 2012 in the
case DOE-SY 1112-047 (“Decision”).

Id. at 3.

On October 15,

2012, Plaintiffs filed an Opening Brief for this administrative
appeal.

ECF No. 40.

Defendant filed an Answering Brief on

November 15, 2012.

ECF No. 42.

Plaintiffs filed a Reply on

November 29, 2012.

ECF No. 43.

On January 25, 2013, this Court

held a hearing regarding this appeal of the AHO’s Decision.

ECF

No. 45.
II.

FACTUAL BACKGROUND2/

The parties in this case have been embroiled in
litigation since 2003, and the factual background for the events
prior to this case may be found in the following decisions by
this Court:

(1) D.C. v. Haw. Dep’t of Educ., Civ. No. 05-00562

ACK-BMK, Order Remanding Administrative Decision (June 23, 2006)

2/

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.
-2-

(wherein the Court ordered the Hearings Officer to determine Sam
K.’s eligibility under the IDEA) (hereinafter, “D.C.”), and (2)
D.C. v. Haw. Dep’t of Educ., 550 F. Supp. 2d 1238 (D. Haw. 2008)
(hereinafter, “D.C. II”).3/
Sam K. is currently 17 years old and has been deemed
eligible for special education and related services under the
IDEA since July 19, 2006.
2008).

D.C. II, 550 F. Supp. 2d 1238 (D. Haw.

According to psychologists and other tests in the record,

Sam has anxiety, depression, language issues, speech issues,
social issues, and central auditory processing disorder.

ROA

Transcript at 115-17, ECF No. 28; Pet. Ex. 8 at 8.27, ECF No. 24.
Sam has attended Loveland Academy from February 2003 until the
present time.

D.C. II, 550 F. Supp. 2d 1238; Pet. Ex. No. 16 at

16.3, ECF No. 25; Order Granting Plaintiffs’ Motion for Stay Put,
Sam K. v. Haw. Dep’t of Educ., Civ. No. 12-00355 at 4, ECF No.
35.

While at Loveland Academy for the 2010-2011 school year, Sam

has made progress in his communication, learning, emotional, and
academic skills.

Pet. Ex. 1 at 1.4, 1.6, 1.12, ECF No. 24.; Pet.

Ex. 2 at 2.6-.7, ECF No. 24; Pet. Ex. 4 at 4.9, ECF No. 24.
In D.C. II, this Court ruled in favor of Sam K. for the
following reasons:

(1) the DOE failed to timely offer Sam K. an

appropriate IEP, (2) Sam’s placement at the private school was

3/

Both cases were suits brought by Sam K.’s parents, D.C.
and G.K., as guardians ad litem on behalf of Sam K., a disabled
minor.
-3-

bilateral instead of unilateral because of an administrative
officer’s decision in favor of parents, and (3) because Sam’s
placement was bilateral, the statute of limitations for
unilateral placement, Haw. Rev. Stat. § 302A-443(a)(2)
(“H.R.S.”), did not bar Sam’s claim for reimbursement.
1247.

Id. at

Accordingly, the Court ordered the DOE to pay for Sam K.’s

special education and related services at Loveland Academy for
the 2005-2007 school years.

Id. at 1252.

Despite the ruling in favor of Plaintiffs, the DOE
failed to pay for Sam’s special education and related services at
Loveland; the DOE also failed to offer an appropriate IEP for Sam
for the 2007-2008, 2008-2009, and 2009-2010 school years.

Order

Granting Plaintiffs’ Motion for Stay Put, ECF No. 35 at 4; Pet.
Ex. No. 14 at 14.6, ECF No. 24.

After Parents filed requests for

Due Process hearings under 20 U.S.C. § 1415 on March 10, 2010 for
the 2007-2010 school years, the DOE and Parents entered into a
settlement agreement to resolve those claims (“Settlement
Agreement”).

Id. at 4, Pet. Ex. No. 16 at 16.3, ECF No. 25.

In the Settlement Agreement, the DOE agreed to pay for
Sam’s special education and related services for the 2007-2008,
2008-2009, and 2009-2010 school years, including extended school
years.

Pet. Ex. No. 16 at 16.3, ECF No. 25.

The Settlement

Agreement did not cover the 2010-2011 school year.
.4.

Id. at 16.3-

Additionally, the Settlement Agreement did not specify a

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change in placement for Sam at the end of the 2009-2010 school
year.

Id.
In March of 2010, the DOE contacted Parents in order to

arrange an IEP meeting in April 2010 for the 2010-2011 school
year.

Pet. Ex. No. 15 at 15.1.

Parents asked the DOE to

postpone the IEP meeting until after Sam completed education
assessments at Loveland.

Id. at 15.2.

Due to scheduling

conflicts between the parties, the first IEP meeting was held on
June 30, 2010.

Pet. Ex. No. 17 at 17.3-.5.

The Prior Written

Notice given to Plaintiffs after the DOE reevaluated Sam states
that Sam is eligible for services under the IDEA based on the
category of Specific Learning Disability.

Id. at 17.62.

The

parties held subsequent IEP meetings in 2010 on July 23, July 28,
August 6, August 27, September 17, and October 29.
18-23.

Pet. Ex. No.

Parents and the DOE had a difficult time working

together.

ROA Transcript at 654, ECF No. 23 (parties stipulate

relationship “was bad”).

On January 14, 2011, over five months

after the beginning of the 2010-2011 school year, the parties
held an IEP meeting where Defendant gave Parents a signed IEP.
Pet. Ex. No. 24, Pet. Ex. No. 19 at 19.3, ECF No. 25 (stating
that the 2010-2011 school year started on August 2, 2010).

The

DOE sent a Prior Written Notice (“PWN”) to Parents by January 27,
2011.

Pet. Ex. No. 24 at 24.33-.34, ECF No. 25.

-5-

Sometime in July or August of 2010, the DOE started to
consider the Windward Intensive Learning Center as a potential
placement for Sam (“ILC” or “Public Placement”).
at 855, Pet. Ex. No. 20 at 20.26.

ROA Transcript

The program director for the

ILC (“Program Director”) attended the IEP meetings on August 6
and October 29, 2010.
at 23.29.

Pet. Ex. No. 20 at 20.26, Pet. Ex. No. 23

The record does not reflect that any other program

directors attended the IEP meetings.

Pet. Ex. No. 18-23.

Prior

to January 14, 2011, someone from the DOE wrote a handwritten
note on a memorandum indicating the DOE’s decision to transition
Sam to the ILC.

Pet. Ex. No. 35.

Parents did not have a chance

to examine the ILC or express objections until after the DOE gave
Parents the IEP on January 14, 2011.

Pet. Ex. No. 24 at 24.34-

.35; ROA Transcript at 768-70, ECF No. 31; ROA Transcript at 9192, ECF No. 28.
The ILC is a facility for special education students
with behavioral and/or emotional issues.
53.

ROA Transcript at 752-

The program uses a token system and a level system in order

to address behavioral issues through means of positive
reinforcement.

ROA Transcript at 759-60, 782-83, ECF No. 31

Students attending the ILC are only there for an average time of
seven to eight months.

ROA Transcript at 771, ECF No. 31.

A few

days after Parents visited the ILC, one of the three students
attending the facility assaulted both the Director and another

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teacher; as a result, the student was arrested by the police.
ROA Transcript at 768-70, ECF No. 31; ROA Transcript at 91-92,
ECF No. 28.

At the time of the IEP due process hearing in May

2011, one out of the seven students attending the DOE placement
was sent there from juvenile court.

ROA Transcript at 784, ECF

No. 31.
Parents disputed the finality of the January IEP signed
by the DOE from March 2011 until April 2011.
24.35-.39.

Pet. Ex. No. 24 at

The DOE stated in letters dated March 9, 2011 (Pet.

Ex. No. 24 at 24.36) and April 20, 2011 (Pet. Ex. No. 24 at
24.44) that the IEP issued on January 14, 2011 was the final IEP.
On or around October 27, 2011, Plaintiffs filed a
due process request alleging that the DOE failed to provide an
appropriate IEP.

Pet. Ex. 25 at 25.1, ECF No. 25.

On May 24,

2012, after four days of hearings, the Administrative Hearings
Officer (“AHO”) issued the following conclusions in his Decision:
(1) Plaintiffs met their burden to show that the DOE
predetermined Sam’s proposed placement before the final IEP
without significant parental input; (2) Plaintiffs met their
burden of showing that the DOE proposed placement failed to
provide an educational program that met Sam’s unique needs; (3)
the private school selected by Plaintiffs was an appropriate
placement; and (4) despite Plaintiffs’ success on the placement
issues, Plaintiffs cannot claim reimbursement for private school

-7-

expenses because the 180-day statute of limitations in H.R.S. §
302A-443(a)(1) for unilateral school placements bars Plaintiffs’
claim.

ROA Ex. 27.
Plaintiffs only appeal the last conclusion, arguing

that H.R.S. § 302A-443(a)(1) does not apply because the AHO’s
other conclusions prove that the placement is bilateral instead
of unilateral.

Plaintiffs’ Opening Brief at 5, ECF No. 40.

The

DOE in defense to Plaintiffs’ claim contests the AHO’s
conclusions that (1) the DOE proposed placement failed to provide
a FAPE to Sam, and (2) the private school placement was
appropriate for Sam.

Defendant’s Answering Brief at 10-14, ECF

No. 42.
III.

STANDARD

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.”

20 U.S.C. § 1415(i)(2)(C).

The Ninth Circuit has construed this section as requiring “de
novo review of the state hearing officer’s findings and
conclusions.”

Ashland Sch. Dist. v. Parents of Student R.J., 588

F.3d 1004, 1008 (9th Cir. 2009).

However, the statutory

requirement “that a reviewing court base its decision on the
-8-

‘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.”
Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982).

Rather, “due

weight” must be given to the findings in the administrative
proceedings.

Id.

The amount of deference given to an administrative
hearing officer’s findings is a matter of discretion for the
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 the

court exercises 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)); See also Cnty. of San
Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466
(9th Cir. 1996) (“This circuit gives the state hearing officer's
decision “substantial weight” when it “evinces his careful,

-9-

impartial consideration of all the evidence and demonstrates his
sensitivity to the complexity of the issues presented.”)
In this case, the AHO’s thirty-three page Decision
carefully considered the arguments of the parties and provided
detailed analysis of the testimony and documentary evidence
presented during the hearing.

AHO’s Decision, ECF No. 23.

Therefore, the Court is inclined to give greater deference to the
findings of the Decision.

See Capistrano, 59 F.3d at 891 and

Cnty. of San Diego, 93 F.3d at 1466 (9th Cir. 1996).
IV.
A.

DISCUSSION

The IDEA Statutory Framework
Congress passed the Individuals with Disabilities

Education Act (“IDEA”) to ensure that children with disabilities
have 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) (2010).

The

IDEA’s goal is to prevent both the exclusion of handicapped
children from public education and the “widespread practice of
relegating handicapped children to private institutions or . . .
special education classes.”

N.D. v. Haw. Dep’t of Educ., 600

F.3d 1104, 1115 (9th Cir. 2010) (citing Burlington v. Mass. Dep’t
of Educ., 471 U.S. 359, 373 (1985)).

However, the IDEA also

strives to ensure that the public education provided is
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appropriate for a child’s needs; handicapped children should not
be “left to fend for themselves in classrooms designed for
education of their non[-]handicapped peers.”

K.D. v. Dep’t of

Educ., State of Haw., 665 F.3d 1110, 1115 (9th Cir. 2011)
(quoting Rowley, 458 U.S. at 191).
A “free and appropriate public education” (“FAPE”) is
defined as “special education and related services that – (A)
have been provided at public expense, under public supervision
and direction, and without charge; (B) meet the standards of the
State educational agency; (C) include an appropriate preschool,
elementary school, or secondary school education in the State
involved; and (D) are provided in conformity with the
individualized education program required under section 1414(d)
of this title.”

20 U.S.C. § 1401(9)(2010).

The IEP is a

“comprehensive statement of the educational needs of a
handicapped child and the specially designed instruction and
related services to be employed to meet those needs.”
Burlington, 471 U.S. at 368; See 20 U.S.C. § 1401(14) (2010) and
20 U.S.C. § 1414(d) (2010).
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

-11-

educational benefits?

If these requirements are met, the State

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

Rowley, 458 U.S. at 206-07

(footnotes omitted); see also Union Sch. Dist. v. Smith, 15 F.3d
1519, 1524 (9th Cir. 1994).
B.

Plaintiffs’ Challenge to DOE-SY 1112-047
1. Whether Haw. Rev. Stat. § 302A-443(a)(2) Bars Plaintiffs’
Reimbursement Claim
The AHO concluded that Plaintiffs’ request for

reimbursement was time-barred by the statute of limitations under
H.R.S. § 302A-443(a)(2) because Sam’s placement at Loveland for
the 2010-2011 school year was unilateral, not bilateral.

The AHO

reached this conclusion by assuming that (1) K.D. v. Dep’t of
Educ., 665 F.3d 1110 (9th Cir. 2011) changed the analysis set
forth by this Court in D.C. II, 550 F. Supp. 2d 1238 (D. Haw.
2008), and (2) Parents’ decision to continue enrollment at
Loveland Academy constituted a unilateral placement at the
beginning of the 2010-2011 school year.

ROA Ex. 27 at 418-19.

Because the AHO applied the law incorrectly, this Court reverses
the AHO’s Decision and holds that Plaintiffs’ reimbursement claim
is not time-barred under H.R.S. § 302A-443(a)(2).
The statute at issue, H.R.S. § 302A-443(a), reads as
follows:

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(a) An impartial hearing may be requested by any parent or
guardian of a child with a disability, or by the
department, on any matter relating to the identification,
evaluation, program, or placement of a child with a
disability; provided that the hearing is requested:
(1) Within two years of the date the parent, guardian,
or department knew or should have known about the
alleged action that formed the basis of the request
for a hearing; and
(2) Notwithstanding paragraph (1), within one hundred
and eighty calendar days of a unilateral special
education placement, where the request is for
reimbursement of the costs of the placement.
As this Court noted in D.C. II, the determination of
which statute of limitations applies depends on whether the
private placement is “unilateral” or “bilateral.”
2d at 1248.

550 F. Supp.

The term “unilateral special education placement”

remained undefined in H.R.S. § 302A-443 throughout the events
resulting in these proceedings.
Supp. 2011).

See H.R.S. § 302A-443 (2007 &

Therefore, the Court will use the definition used

in D.C. II and adopted by the Ninth Circuit:

“A unilateral

special education placement occurs when one party unilaterally
(i.e., without consent or agreement of the other party) enrolls
the student in a special education program.”

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K.D., 665 F.3d at

1122 (quoting Makiko D. v. Hawaii, No. 06-CV-00189, 2007 WL
1153811, at *7 (D. Haw. 2007)).
In this case, Sam’s placement is bilateral, not
unilateral.

This Court ruled in 2008 that a favorable

administrative ruling for the parents and the private school
placement “renders the placement bilateral, as it represents an
agreement between the State and the parents.”

D.C. II, 550 F.

Supp. 2d at 1249 (citing Burlington v. Mass. Dep’t. of Educ., 471
U.S. 358, 372 (1985); Clovis Unified Sch. Dist. v. Cal. Office of
Admin. Hearings, 903 F.2d 635, 641 (9th Cir. 1990); Bd. Of Educ.
V. Schutz, 290 F.3d 476, 482-84 (2d Cir. 2002); and Bd. Of Educ.
Of Montgomery County v. Brett Y., 959 F. Supp. 705, 710 (D. Md.
1997)).

This 2008 holding of the Court has not changed, and the

Ninth Circuit has used this principle when examining a similar
case involving the statute of limitations in H.R.S. § 302A443(a)(2).

Teresa L. v. Haw. Dep’t of Educ., 325 Fed. Appx. 583,

2009 WL 1322342 (9th Cir. 2009)(holding that the two-year statute
of limitations in H.R.S. § 302A-443(a)(2) applied because the
administrative decision finding private placement appropriate
constituted a bilateral agreement between the state and the
child’s parents).
In Teresa, the plaintiffs asked for reimbursement for
the 2005-2006 school years.

Teresa, 325 Fed. Appx. at 583.

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The

defendant school district4/ argued that plaintiffs’ reimbursement
claim was time-barred because plaintiffs failed to file the
reimbursement request within the statute of limitations period
for a unilateral placement.

Id. at 584.

However, plaintiffs had

received a favorable administrative hearing officer’s ruling on
June 26, 2006 stating that plaintiff’s choice of placement was
appropriate for the 2004-2005 school year.5/

As a result of this

June 26, 2006 decision, the court concluded that “this favorable
administrative decision . . . constituted an agreement between
the Department of Education and [plaintiffs] that rendered
[plaintiff’s] home placement a bilateral placement.”

Id. at 584.

Therefore, “a two-year statute of limitations applied to
[plaintiff’s] hearing request for reimbursement for the 2005-2006

4/

The Hawaii DOE was the defendant in the Teresa case.
Teresa L. v. Haw. Dep’t of Educ., 325 Fed. Appx. 583, 2009 WL
1322342 (9th Cir. 2009).
5/

The administrative hearings officer’s ruling on June 26,
2006 stated that the 2004-2005 IEP failed to provide the student
a FAPE, and that reimbursement should be awarded because the
plaintiff’s choice of placement was appropriate. Id. at 584.
The hearings officer did not rule on the reimbursement issue for
the 2005-2006 school year because the plaintiff failed to
properly raise her claim in the June 2006 proceeding. Order
Affirming the Hearings Officer’s October 23, 2006 Order Granting
Respondent’s Motion to Dismiss with Regard to Petitioner’s
Request for Reimbursement for Private Placement at 3-4, Teresa L.
v. Haw. Dep’t of Educ., Civ. No. 07-00009, (D. Haw. 2007). The
plaintiff subsequently filed an action to claim reimbursement for
the 2005-2006 school year, which is the year at issue in Teresa.
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school year.”

Id. at 585.

Accordingly, the court found that

plaintiffs’ reimbursement request was timely.6/

Id.

In this case, the AHO Decision issued on May 24, 2012
constitutes a favorable decision for the plaintiffs because the
AHO found that (1) the DOE denied Sam a FAPE, and (2) Loveland
was an appropriate placement for the 2010-2011 school year.
Ex. 27 at 413-15.

ROA

Therefore, the AHO Decision reconfirmed Sam

K.’s placement as a bilateral placement.

Teresa, 325 Fed. Appx.

583, 2009 WL 1322342; D.C. II, 550 F. Supp. 2d at 1249.

This

reconfirmed bilateral placement found in D.C. II in 2008, and
there had been no change in the status of that placement in the
intervening years - in fact, there had been no new IEP
established in those years and Sam K. had continued at Loveland.
Moreover, just as the court in Teresa applied the June 26, 2006
AHO decision to the 2004-2006 school years, this Court applies
the AHO May 24, 2012 Decision to the 2010-2011 school year.
Teresa, 325 Fed. Appx. at 584.

See

Accordingly, the two-year statute

6/

The court in Teresa noted that there were arguably
several dates that could have been used to determine when the
statute of limitations period started to run. The court mentions
November 2005 as a potential date, which was when the defendant
mailed plaintiff a copy of the IEP. Another potential date was
June 26, 2006, which was when the AHO issued the decision
regarding the 2004-2005 school year. Teresa, 325 Fed. Appx. at
585. However, because plaintiff had filed her claim on July 13,
2006, the court stated that it need not address this issue
because the claim was timely regardless of the date used to mark
the beginning of the statute of limitations time period. Id.
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of limitations in H.R.S. § 302A-443(a)(1) applies to Plaintiffs’
due process request.
Plaintiffs filed their reimbursement request on October
27, 2011 at the latest.

Pet. Ex. 25 at 25.1, ECF No. 25.

Therefore, because the IEP was offered sometime in January 2011,
Plaintiffs’ reimbursement claim is timely.7/

See Teresa, 325

Fed. Appx. 583, 2009 WL 1322342 and D.C. II, 550 F. Supp. 2d at
1249 (holding that a favorable AHO decision in July 2006 rendered
Plaintiffs’ placement as bilateral; therefore, the reimbursement
request for the 2005-2006 and 2006-2007 school years was timely).
Furthermore, this Court observed in its “Order Granting
Plaintiffs’ Motion for Stay Put” issued on August 22, 2012 (ECF
No. 35) that “Sam’s actual placement has never changed from the
time of this Court’s initial ruling in 2008.”

ECF No. 35 at 18.

Plaintiffs and Defendant agreed to Sam’s enrollment at Loveland
Academy for the 2007-2008, 2008-2009, and 2009-2010 school years
in the Settlement Agreement. Pet. Ex. No. 16 at 16.3, ECF No. 25.
This Settlement Agreement signed by the DOE and Parents for the
2007-2010 school years effectively continued Sam’s placement from

7/

Defendant’s only argument is that Plaintiffs’
reimbursement claim clearly falls outside of the 180-day statute
of limitations. See Defendant’s Answering Brief at 8-10, ECF No.
42. The Court finds this factual argument irrelevant because
Student’s placement at Loveland is a bilateral placement;
therefore, the two year statute of limitations applies. H.R.S. §
302A-443(a)(1).
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the 2008 decision to the 2010-2011 school year.8/

See ECF No.

35.
The AHO erroneously concluded in his May 24, 2012
Decision that Sam’s continued enrollment at Loveland was a
unilateral placement at the beginning of the 2010 school year
according to K.D. v. Haw. Dep’t of Educ., 665 F.3d 1110, 1122
(9th Cir. 2011).

AHO’s Decision, ECF No. 23.

In K.D., the court

examined whether a settlement agreement constituted an initial
bilateral agreement between the DOE and the plaintiff.
at 1118-20.

665 F.3d

The parent in K.D. first enrolled her child at

Loveland in November 2006 and subsequently filed a request for a
due process hearing with the DOE.

Id. at 1115.

To resolve the

dispute, both parties signed a settlement agreement stating that
the DOE would pay K.D.’s tuition for the 2006-2007 school year.
Id. at 1115.

The settlement agreement provided that the parent

would “participate in transition planning for [student] to a . .
. public school at the end of the 2006-2007 school year.”
1115.

Id. at

The settlement agreement did not specifically mention that

the DOE agreed to placement of the child at Loveland.

8/

Id.

The

The Court notes that the AHO found that the Settlement
Agreement created a bilateral placement for Sam K. during the
2009-2010 school year. Admin. Hearing Officer Decision at 28(f).
However, such a finding conflicts with the K.D. decision because
the court in K.D. held that an express agreement on placement,
not merely an agreement on reimbursement, was required for a
settlement agreement to establish a bilateral placement. 665
F.3d at 1119.
-18-

plaintiffs subsequently challenged the IEP for the 2007-2008
school year, but they lost on the administrative level because
the hearing officer found that the DOE provided a FAPE.

Id. at

1115-16.
The Ninth Circuit concluded under these facts that no
bilateral agreement existed between the plaintiffs and the
defendant.

First, the court noted that plaintiffs did not have a

“favorable agency or district court decision agreeing with K.D.’s
initial unilateral placement at Loveland.”

Id. at 1118.

Second,

the settlement agreement did not create a bilateral placement
because it called for a transition to a public school at the end
of the school year.

Id. at 1119.

The court also noted that the

settlement agreement did not specifically mention “placement” but
only provided for tuition reimbursement.

Id.

Contrary to the AHO’s conclusion, Sam’s case is
distinguishable from K.D. for the following reasons.

First, the

Settlement Agreement in this case only provides that Parents
would participate in an “IEP/Reevaluation meeting by the end of
June 2010”; in contrast to K.D., there is no provision for a
transition to a public school.
665 F.3d at 1116.

Pet. Ex. No. 16 at 16.3.; K.D.,

Second, Plaintiffs in this case have prior

favorable decisions from this Court’s decision in 2008 in D.C. II
as well as two administrative hearing officers’ decisions; with
each one constituting a bilateral agreement to the Loveland

-19-

placement.

D.C. II, 550 F. Supp. 2d at 1249 (holding that Sam’s

placement was transformed from a unilateral placement to a
bilateral placement).
While the Settlement Agreement in this case does not
explicitly state that the DOE agreed to “placement,” the DOE’s
silence in the settlement agreement regarding an alternative
placement means that there was no intervening event to change
Sam’s bilateral placement from 2006.

Unlike the plaintiff in

K.D., Sam does not need the Settlement Agreement to establish an
initial bilateral placement; he received a favorable AHO decision
and this Court’s 2008 ruling prior to the Settlement Agreement.
D.C. II, 550 F. Supp. 2d 1238, 1249 (D. Haw. 2008).
Based on the facts of this case, while the Settlement
Agreement did not create an initial bilateral placement, it
continued the effect of the bilateral placement from 2006 until
the 2010-2011 school year.

First, the Court notes that Sam was

not offered an IEP for the 2007-2008, 2008-2009, and 2009-2010
school years.

Pet. Ex. 14 at 14.6.

Second, the Settlement

Agreement does not provide for a change in placement as mentioned
above.

Pet. Ex. No. 16 at 16.3.

Contrast K.D., 665 F.3d at 1115

and Zvi D. v. Ambach, 694 F.2d 904, 907 (2d Cir. 1982)
(settlement agreement providing that student would be
transitioned to public placement did not constitute a bilateral
agreement).

Third, at the beginning of the 2010-2011 school

-20-

year, no IEP had been offered to Sam.

Pet. Ex. No. 24, Pet. Ex.

No. 19 at 19.3.
In effect, the last IEP dispute to establish placement
occurred during the 2006-2007 school year, where the Court
affirmed Plaintiffs’ placement of Sam at Loveland.
F. Supp. 2d 1238, 1240 (D. Haw. 2008).

D.C. II, 550

As this Court noted in

D.C. II, “it [is] problematic to ever label a private placement
as “unilateral” when it occurs before any IEP has been offered
for the parents to accept or reject.”9/
at 1249.

D.C. II, 550 F. Supp. 2d

Because Sam did not have an IEP in place at the start

of the 2010-2011 school year and the Settlement Agreement
continued Sam’s education at Loveland as per the Court’s
placement for the 2006-2007 school year, Parents’ decision to
continue to enroll Sam in Loveland effectively was a continuation
of a bilateral placement rather than a unilateral placement.
Therefore, Sam’s placement at Loveland, being bilateral instead
of unilateral at the beginning of the 2010-2011 school year,
constitutes an additional reason that the two-year statute of

9/

The Court by noting this fact does not reverse the AHO’s
finding that the DOE was not at fault for the late IEP given in
January, months after the school year began. See Admin. Hearing
Officer Decision at 411-12, ECF No. 23. The Court upholds the
AHO finding that the DOE was not responsible for the tardiness of
the IEP. ROA Transcript at 654 (parties stipulate that the
relationship “was bad”). Regardless of fault, the Court’s main
point in noting the late IEP is that no intervening event changed
Sam’s placement from bilateral to unilateral prior to the 20102011 school year.
-21-

limitations in H.R.S. § 302A-443(a) applies, and Plaintiffs’
reimbursement claim is not time-barred.10/
Finally, as noted earlier, at the January 25, 2013
hearing for this appeal, Defendant’s counsel conceded that (1)
Sam’s placement was continuously bilateral from the 2008
placement until the 2010-2011 school year, (2) Plaintiffs’ claim
was timely because the two-year statute of limitations applies to
a bilateral placement, and (3) Parents were therefore entitled to
reimbursement.

Rough Transcript, Sam K. v. Haw. Dep’t of Educ.,

Civ. No. 12-00355 ACK-BMK at 25-27 (“THE COURT:

So wasn’t the

status of the child at Loveland still a bilateral placement?
[DEFENDANT’S COUNSEL]:

Based on the administrative hearing

officer’s decision, I would have to agree . . . . THE COURT:

So

you agree that the parents are entitled to reimbursement then?
Because the two-year statute of limitations applies where there’s
a bilateral placement.

[DEFENDANT’S COUNSEL]:

Given the

situation, Your Honor I would have to agree with the Court on
that issue.”).
2.

Whether Defendants May Challenge the AHO’s Placement

Conclusions Without a Cross-Appeal

10/

In K.D., the student’s placement at the private school
had been unilateral, and the court ruled that the settlement
agreement did not changed the nature of the placement because,
inter alia, it did not include an agreement regarding placement.
K.D., 665 F.3d at 1118-20.
-22-

Plaintiffs argue that the DOE’s challenge to the AHO’s
conclusions regarding placement is barred because of the DOE’s
failure to file a cross-appeal.11/
ECF No. 43.

Plaintiffs’ Reply Brief at 2,

The Ninth Circuit has stated that a prevailing party

need not cross appeal to “defend a judgment on any ground
properly raised below, so long as that party seeks to preserve,
and not to change, the judgment.”

Lee v. Burlington Northern

Santa Fe Railway Co., 245 F.3d 1102, 1107 (9th Cir. 2001)12/

11/

Plaintiffs cite to Haw. Admin. R. § 8-60-68 and § 8-6070 in their Reply Brief to support their argument that Defendant
is required to cross appeal the placement issues. Plaintiffs’
Reply Brief at 2, ECF No. 43. However, these sections do not
provide rules or limitations for a cross-appeal; rather, the
regulations provide the general process for appealing an AHO’s
decision.
Therefore, these rules do not bar Defendant’s
arguments in defense of the AHO Decision.
12/

In Lee, the defendant in a railway tort case brought a
motion for summary judgment to dismiss the plaintiff’s claim on
the grounds that federal law preempted plaintiff’s tort suit.
Id. at 1105. The defendant lost the motion for summary judgment,
and the case was tried by a jury. Id. At the conclusion of the
trial, the jury entered a verdict in favor of the defendant. Id.
The plaintiff appealed the jury verdict to the Ninth Circuit, and
the court of appeals affirmed the final judgment on the grounds
that federal law preempted the plaintiff’s case – effectively
reversing the district court’s ruling on defendant’s motion for
summary judgment. Id. at 1106. The plaintiff argued that the
defendant should not be able to argue the federal preemption
issue because the defendant did not file a cross-appeal of the
district court’s summary judgment ruling. Id. at 1106-07. The
court of appeals held that the defendant did not need to file a
cross-appeal of the summary judgment ruling, reasoning that the
federal preemption issue was merely a defense of the final
judgment – if defendant won the federal preemption issue on
appeal, then the rights of the parties would stay the same as if
the final judgment in favor of the defendant remained in effect.
Id. at 1107.
(continued...)
-23-

(quoting Northwest Airlines, Inc. v. Cnty. of Kent, 510 U.S. 355,
364 (1994); See Rivero v. City and Cnty. of San Francisco, 316
F.3d 857 (9th Cir. 2002)(holding that defendant-appellees did not
need to cross appeal the issue of qualified immunity because the
issue was an alternative ground to affirm the district court’s
judgment); accord El Paso Natural Gas Co. v. Neztsosie, 526 U.S.
473, 478-79 (1999)(“[A]ppellee may “urge in support of a decree
any matter appearing in the record, although his argument may
involve an attack upon the reasoning of the lower court,” but may
not “attack the decree . . . to enlarg[e] his own rights
thereunder or [] lessen[] the rights of his adversary.”).
Defendant in this case contests the AHO’s placement
conclusions in order to defend the judgment that Plaintiff is not
entitled to reimbursement.

The placement issue is a precondition

for the ultimate result of reimbursement.

See Burlington v.

Mass. Dep’t. of Educ., 471 U.S. 358, 370 (1985)(noting that the
private placement must be deemed appropriate in order for parents
to receive reimbursement).

If Defendant prevails on the issue

that the private placement is not appropriate for Sam, then the
Plaintiffs would not be entitled to tuition reimbursement, which
creates the same result as the AHO’s Decision below that denied
tuition reimbursement to the Plaintiffs.

12/

(...continued)
-24-

Therefore, if this

Court decides the placement issue in Defendant’s favor, the
judgment would not “enlarge” the rights of Defendant or “lessen”
the rights of Plaintiffs.13/

See Rivero, 316 F.3d at 862.

Accordingly, the Court may consider Defendant’s arguments without
the need for a cross-appeal.
3.

Whether the DOE Denied Plaintiff a FAPE by Failing to

Provide an Appropriate Placement
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
13/

Plaintiffs’ citation to Dep’t of Educ. v. Karen I., 618
F. Supp. 2d 1239, 1247 n.3 (D. Haw. 2009) fails to apply to this
case. In Karen I., the plaintiff/appellee attempted to expand
the issue of reimbursement for residential expenses to include
enforcement for other IEP issues like parental visits and
transportation. 618 F. Supp. 2d at 1247 n.3. The parental visit
and transportation issues were unrelated to the issue of
residential expenses – the question of whether or not plaintiffs
should be reimbursed for residential expenses was not dependent
on whether or not the plaintiff should receive parent visits and
transportation expenses. Therefore, the plaintiff’s claim for
parent visits and transportation expenses could not be considered
a defense of the decision to award residential expenses, and the
plaintiff should have filed a cross-appeal for these additional
claims. In contrast to Karen I., in this case Plaintiffs must
prevail on the issue that the private placement is appropriate as
a precondition for receiving tuition reimbursement. See
Burlington, 471 U.S. at 370. If Defendant prevails on the issue
that the private placement is inappropriate, then the final
judgment of the AHO that Plaintiffs should not receive tuition
reimbursement would remain effective. Therefore, Defendant need
not file a cross appeal because Defendant’s argument is a defense
of the AHO’s Decision.
-25-

[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).
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.

“[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. 2010).
The DOE argues that the ILC would have provided a
“basic floor of opportunity,” and that Plaintiffs failed to
establish “any inadequacy in the programming or services
offered.”

Defendant’s Answering Brief at 10, ECF No. 42.

Contrary to the DOE’s assertions, this Court affirms the AHO’s
conclusion that Sam would have regressed from attending a
-26-

behavior-focused program with temporary students and juvenile
criminals.

AHO’s Decision at 413, ECF No. 23.
This Court agrees with the AHO’s findings that the DOE

Proposed Placement at the ILC was inappropriate because the
behavioral modification program offered by the DOE placement was
the wrong type of program to meet Sam’s needs.

The facility

primarily focused on treating behavior disorders by using a point
system and a token economy to change behavior by means of
positive reinforcement.
No. 31.

ROA Transcript at 759-60, 782-83, ECF

However, Sam’s primary disorder is not a behavior

disorder; instead, Sam has anxiety, depression, language, speech,
and social issues, as well as central auditory processing
disorder.

ROA Transcript at 115-17, ECF No. 28; Pet. Ex. 8 at

8.27, ECF No. 24

(“Most disruptive behavior disorders are

associated with compromised social and interaction skills, as are
mood and anxiety disorders.

It is the [Licensed Psychologist]’s

strong opinion that Sam’s history and current presentation
provide much stronger support for mood or anxiety disorders in
Sam’s case.”); See also Pet. Ex. 1 at 1.3, ECF No. 24; Pet. Ex. 2
at 2.3, ECF No. 24.

The record reflects that Loveland Academy

attempted to use behavioral programs like the one at the DOE
placement in the past without success because such programs

-27-

triggered Sam’s mood disorders.14/
No. 28.

ROA Transcript at 111-12, ECF

Therefore, the AHO correctly concluded that the ILC’s

behavioral program was inappropriate for Sam’s particular
learning disabilities.
Furthermore, the Psychological Evaluation dated April
4, 2010 explains that a stable environment is important for Sam’s
progress because he has great difficulty adjusting to unexpected
changes.

Pet. Ex. 8 at 8.3-8.4, ECF No. 24.

Classroom

assessments indicate that “[Sam] can overreact to situations,
loses control easily and has a difficult time calming down after
an incident.”

Pet. Ex. 24 at 24.8, ECF No. 25; See also Pet. Ex.

1 at 1.2, ECF No. 24.
The testimony from the Program Director of the ILC
demonstrated that students attending the ILC stayed for an
average time of only seven to eight months.
771, ECF No. 31.

ROA Transcript at

Moreover, one of the three students attending

the ILC when Sam’s Parents visited the facility was arrested for
assaulting both the Director and another teacher only a few days
after Parents’ visit.

ROA Transcript at 768-70, ECF No. 31; ROA

Transcript at 91-92, ECF No. 28.

At the time of the IEP due

process hearing, one out of the seven students attending the ILC

14/

The record supports that Sam’s emotional disorders impact
his ability to learn; when suffering from anxiety or depression,
Sam’s education progress deteriorates and he does not benefit
from academic help. ROA Transcript at 120, 130, ECF No. 28.
-28-

was sent there from juvenile court.
No. 31.

ROA Transcript at 784, ECF

The frequent and potentially tumultuous changes at the

ILC would likely hinder Sam’s education because of his specific
mental and emotional needs for stability in the learning
environment.

Therefore, this Court upholds the AHO’s conclusion

that the “DOE Proposed Placement . . . was ill advised,
inappropriate, and potentially disastrous to student and his
education.”

AHO’s Decision at 414, ECF No. 23.

Defendant’s arguments regarding the provision of
occupational therapy and the ILC’s ability to provide academic
services fails to refute that the structure of the environment,
which is geared toward treating behavior disorders, would trigger
Sam’s mood and anxiety disorders, precluding him from benefitting
from other types of education assistance.
Answering Brief at 11-12, ECF No. 42.

See Defendant’s

While the DOE’s behavior

program may work for some children, the IDEA requires each
child’s program to be “individually designed to provide
educational benefit to the handicapped child.”

Union School

Dist. v. Smith, 15 F.3d 1519, 1525 (9th Cir. 1994) (holding that
the education placement for an autistic child was inappropriate
because the placement did not serve other autistic children and
could not teach the “attending skills” child needed in order to
benefit from language instruction).

-29-

In this case, Sam requires an individualized program
that will assist in controlling his mood and anxiety disorders so
that he can benefit from academic instruction, not a program that
will trigger his disorders and impede progress.

Cf. Seattle

School Dist. v. B.S., 82 F.3d 1493 (9th Cir. 1996) (holding that
residential placement of student was appropriate because student
required intensive care and a structured environment to address
her behavioral disabilities before she could receive an education
benefit).

Because the DOE placement was likely to cause Sam to

regress, the DOE denied Sam a FAPE by failing to provide a “basic
floor of opportunity.”
4.

Gregory K., 811 F.2d at 1311.

Whether the DOE Failed to Provide Sam a FAPE by

Predetermining his Placement in Violation of the IDEA
Independently of the substantive issue of placement,
this Court also finds that Defendant denied Sam a FAPE by
predetermining his placement without input from Plaintiffs.
States must comply with both the procedural and the substantive
requirements of the IDEA.

K.D., 665 F.3d at 1114 (citing Amanda

J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 891 (9th Cir. 2001)).
While procedural flaws do not automatically result in a denial of
a FAPE; such flaws may cause a denial of FAPE if they result in a
loss of educational opportunity or seriously infringe on parental
opportunity to participate in the IEP process.

W.G. v. Bd. of

Tr. of Target Range Sch. Dist. No. 23, 960 F.2d 1479 (9th Cir.
-30-

1992)(superseded by statute on other grounds by 20 U.S.C. § 1414
(d)(1)(B)(internal citations omitted).

“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., 665 F.3d at 1123 (citing

Spielberg v. Henrico Cnty. Public Sch., 853 F.2d 256 (4th Cir.
1988) and W.G., 960 F.2d at 1484 (internal citations omitted)).
In this case, the AHO concluded that Defendant violated
the IDEA by creating a predetermined placement for Sam without
input from Plaintiffs.

AHO’s Decision at 410, ECF No. 23.

Defendant does not contest this at any point in the Answering
Brief.

See Defendant’s Answering Brief at 12, ECF No. 42.
The record shows that the program director at the

proposed public placement was the only program director from a
potential placement to attend IEP meetings; no other potential
placements are mentioned.

See ROA Transcript at 679-80, ECF No.

31; Pet. Ex. No. 20 at 20.26, ECF No. 25 (showing attendance of
Placement Program Director at August 6, 2010 meeting, four months
before IEP placement issue was discussed with Plaintiffs).

There

is also a handwritten note that supports the conclusion that
months before the final IEP, Defendant had already chosen the
Public Placement without Plaintiffs’ input.
No. 25.

Pet. Ex. No. 35, ECF

In doing so, Defendant denied Plaintiffs a meaningful

opportunity to engage in the important process of discussing the

-31-

ability of the placement to meet Sam’s needs.
F.2d 256 and W.G., 960 F.2d 1479.

See Spielberg, 853

Based on the factual support

in the record, this Court affirms the AHO’s conclusion that
Defendant denied Sam a FAPE because Defendant predetermined his
placement.
5.

Whether Loveland Academy was an Appropriate Placement
If a parent places a student in a private school as a

result of the public school’s failure to provide a FAPE, a court
may require the DOE to reimburse the parents for the private
school tuition.

See 20 U.S.C. § 1412(a)(10)(C)(ii); Forest

Grove, 557 U.S. at 232; Burlington, 471 U.S. at 370.

In order to

receive reimbursement, Plaintiffs must show that the private
school placement was an appropriate placement in addition to
proving that the school district failed to provide a FAPE.

C.B.

v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th
Cir. 2011).
A private placement is appropriate if it “provides
educational instruction specially designed to meet the unique
needs of a handicapped child, supported by such services as are
necessary to permit the child to benefit from instruction.”
C.B., 635 F.3d at 1159 (quoting Frank G. v. Bd. of Educ., 459
F.3d 356, 365 (2d Cir. 2006)).

The term “unique educational

needs” is broadly construed to include the “academic, social,
health, emotional, communicative, physical, and vocational needs”

-32-

of a student.

Seattle Sch. Dist. v. B.S., 82 F.3d 1493, 1500

(9th Cir. 1996).
The evidence in the record demonstrates that Loveland
provides Sam with an education tailored to meet his unique needs;
therefore, Loveland is an appropriate placement.

Sam’s test

scores for a 2011 Psychosocial and Cognitive Assessment show that
his cognitive skills have improved during his time at the private
placement.

Pet. Ex. 1 at 1.4, 1.6, 1.12, ECF No. 24.

According

to the licensed psychologist conducting the testing, Sam’s past
failures in the education environment from his auditory
processing disorder and memory deficits resulted in “frustration,
anger, and demoralization” that impeded his education.
1 at 1.12, ECF No. 24.

Pet. Ex.

However, the “combination of mental

health interventions, speech therapy, and highly individualized
instruction appears to have enabled Sam to break out of that
cycle.”

Id.

Sam’s communication and emotional skills have also

improved while at the private placement.
ECF No. 24.

Pet. Ex. 2 at 2.6-2.7,

As a result of the growth in these areas, Sam has

experienced academic progress as well.

Pet. Ex. 4 at 4.9, ECF

No. 24.
Sam’s actual progress in several education areas during
the 2010-2011 school year demonstrates that the AHO correctly
concluded that Loveland was an appropriate placement.

See C.B.,

635 F.3d at 1158-59 (private placement deemed appropriate because

-33-

school provided “significant growth in several learning areas and
in development”) and Union School Dist. v. Smith, 15 F.3d 1519
(9th Cir. 1994)(private placement deemed appropriate because it
implemented child’s program and child demonstrated significant
progress in language and social skills).
Defendant argues that Loveland is insufficient because
the school cannot help Student earn a high school diploma or
transition to a community college.

However, the litmus test for

an appropriate placement is not whether a student can earn a high
school diploma.

“Parents need not show that a private placement

furnishes every special service necessary to maximize their
child’s potential.”

C.B., 635 F.3d at 1159 (quoting Frank G.,

459 F.3d at 365 (holding that parents should receive
reimbursement for private services even though school could only
meet some of student’s educational needs)).
Defendant also argues that Loveland cannot mainstream
Sam with non-disabled students, and that Loveland is a more
restrictive environment on the IDEA continuum than the DOE
placement.

However, courts are not bound to automatically choose

the less restrictive placement.

While the IDEA endeavors to

mainstream handicapped children with their non-handicapped peers
to the fullest extent possible, the main emphasis of the IDEA is
to ensure that the unique needs of the child are met so that the
child actually benefits from the instruction.

-34-

See Rowley, 458

US. at 200-01 (“Implicit in the congressional purpose of
providing access to a [FAPE] is the requirement that the
education . . . confer some educational benefit upon the
handicapped child.”); Cnty. of San Diego v. Cal. Special Educ.
Hearing Office, 93 F.3d 1458, 1468 (9th Cir. 1996) (“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.”).

Hence, a child may be

placed in a more restrictive environment if such services are
needed to provide an actual education benefit.

Poolaw v. Bishop,

67 F.3d 830, 836 (9th Cir. 1995) (holding that school district
was correct in placing child in a special education environment
instead of attempting to mainstream because child required
special communication skills in order to benefit from further
education).15/
In Sam’s case, the DOE proposed placement is
inappropriate even if it is less restrictive because the
placement does not provide a “basic floor of opportunity” for

15/

Defendant’s citation to J.S. v. Haw. Dep’t of Educ., 2010
WL 3384911, Civ. No. 10-00022 DAE-LEK (2010) fails to support
Defendant’s argument. The court in J.S. concluded that the DOE
placement was more appropriate than the private school placement
because the DOE placement provided the necessary services to
teach communication skills to deaf children. See Id. at 11-18.
While the least restrictive environment analysis supported the
change to the DOE placement, the controlling analysis examined
the appropriateness of the services provided to the child. Id.
-35-

Sam.

See Section IV.B.3 above.

Although Loveland Academy may

be considered more restrictive on the spectrum because of the
lack of opportunity to interact with non-handicapped children,
Loveland is currently the environment where Sam receives an
actual education benefit.

See Section IV.B.5 above.

Therefore,

because the IDEA emphasizes actual benefit to the child instead
of blindly following the spectrum, the Court rejects Defendant’s
argument that Loveland is inappropriate under the LRE spectrum.
Defendant also levels an accusation that Sam misses
services “depending on the availability of service providers” and
asserts that this “may be why Student presents with an apparent
increase in behavioral issues.”
12, ECF No. 42.

Defendant’s Answering Brief at

Defendant fails to provide any citation to the

record to support this speculative assertion.

Id.

The Court is

not inclined to rule against Plaintiffs on the basis of an
unsupported statement.
6.

Whether this Court Should Exercise its Discretion to

Grant Tuition Reimbursement to Plaintiffs
Once a court determines that a school district denied a
child a FAPE and that the private placement is appropriate, the
district court must then “exercise its broad discretion and weigh
equitable considerations to determine whether, and how much,
reimbursement is appropriate.”

C.B., 635 F.3d at 1159 (citing

Florence Cnty. School Dist. Four v. Carter, 510 U.S. 7 (1993)).
-36-

“In making this determination, the district court may consider
all relevant equitable factors, including, inter alia, notice to
the school district before initiating the alternative placement;
the existence of other, more suitable placements; the parents'
efforts in securing the alternative placement; and the level of
cooperation by the school district.”

Anchorage Sch. Dist. v.

M.P., 689 F.3d 1047, 1053 (9th Cir. 2012).
In this case, the Court finds that equitable
considerations do not bar reimbursement.

The DOE had sufficient

notice that Sam would be continuing his enrollment at Loveland
during the 2010-2011 school year based on the past conduct of the
parties.

See Pet. Ex. 16 (settlement agreement showing that DOE

agreed to pay Sam’s tuition at Loveland for the 2009-2010 school
year) and Ex. 19 (parties aware that IEP might not be completed
by the beginning of the 2010-2011 school year).

Additionally, by

predetermining placement, the DOE denied Parents the opportunity
to provide input on a suitable public placement for their son.
See Spielberg, 853 F.2d at 258-59 (court allowed private
placement to continue where school district violated IDEA by
predetermining placement).

Parents acted reasonably in securing

private placement in order to ensure that their son progressed
academically.

See Anchorage School Dist., 689 F.3d at 1059

(parents acted reasonably in finding private tutoring services
for their son) and C.B., 635 F.3d at 1160 (affirming district

-37-

court decision that gave great weight to the fact that student
received significant educational benefits in private placement).
Accordingly, this Court awards to Parents tuition reimbursement
for the 2010-2011 school year and 2010-2011 extended school year.
The Court notes that, because Defendant prevailed on
the statute of limitations question below, the issue of the
appropriateness of the tuition costs has not been addressed.16/
Accordingly, the Court directs Plaintiffs to submit for the DOE’s
review all relevant bills and invoices specifying the services
provided to Student each month, including the itemized rates,
fees, and tuition charged therefor, for the 2010-2011 school year
and the 2010-2011 extended school year.

In the event of any

disagreement regarding the invoices, the Court directs the
parties to submit the same to Magistrate Judge Kurren for
resolution.
V.

CONCLUSION

For the foregoing reasons, the Court AFFIRMS the AHO’s
Findings of Fact, Conclusions of Law, and Decision in DOE-SY
1112-047 dated May 24, 2012, except for the AHO’s conclusion that
Haw. Rev. Stat. § 302A-443(a)(2) bars Plaintiff Sam K.’s claim

16/

The Court notes that, in the Closing Brief for the due
process proceedings in front of the AHO, Defendant asked for a
fair opportunity to ensure that Loveland’s charges for services
to Sam are reasonable. AROA Ex. 19 at 329, ECF No. 23.
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for tuition reimbursement, which is REVERSED.

The Court finds

that Plaintiffs are entitled to reimbursement.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, February 13, 2013

________________________________
Alan C. Kay
Sr. United States District Judge

Sam K. v. Haw. Dep’t of Educ., Civ. No. 12-00355 ACK-BMK: Order Affirming in
Part and Reversing in Part the Administrative Hearing Officer’s Decision on
May 24, 2012 in DOE-SY 1112-047.

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