Anthony C., by and through his parents Linda C. and Lionel C. v. Department of Education, State of Hawaii
ORDER AFFIRMING THE ADMINISTRATIVE HEARINGS OFFICER'S DECEMBER 18, 2012 DECISION 1 . Signed by JUDGE DERRICK K. WATSON on 2/14/2014. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic n otifications 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 HAWAI`I
In the Matter of
CIVIL NO. 12-00698 DKW-BMK
Anthony C., by and through his
Parents, Linda C. and Lionel C.,
ORDER AFFIRMING THE
OFFICER’S DECEMBER 18, 2012
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
ORDER AFFIRMING THE ADMINISTRATIVE HEARINGS OFFICER’S
DECEMBER 18, 2012 DECISION
Before the Court is Plaintiffs Anthony C. (“Student”), by and through
his Parents, Linda C. (“Mother”) and Lionel C. (“Father”) (collectively,
“Plaintiffs”) appeal, pursuant to the Individuals with Disabilities Education Act of
2004 (“IDEA”), 20 U.S.C. § 1400 et seq., from the Administrative Hearings
Officer’s (“Hearings Officer”) December 18, 2012 Findings of Fact, Conclusions
of Law, and Decision (“Decision”). On October 18, 2013, the Court heard oral
arguments on the appeal. After careful consideration of the supporting and
opposing memoranda, the administrative record, and the arguments of counsel, the
December 18, 2012 Decision is AFFIRMED.
Student has autism and was 16 at the time of the Due Process Hearing
in 2012. Student has attended Variety School of Hawaii (“Variety”), a small
private school specializing in students with autism, ADD and other learning
disabilities, since the 2001-2002 school year. At the time of the Due Process
Hearing, the Department of Education, State of Hawai‘i (“DOE”), had been paying
for Student’s attendance at Variety for approximately 10 years. Decision at 3 ¶¶ 1,
3. Student’s DOE home school at the time of the Due Process Hearing was
McKinley High School.
Student has a Behavioral Support Plan (“BSP”), which was created by
Student’s behavioral instructional support services provider (“BISS”), Fred Yuen,
who has worked with Student at Variety since 2003. Decision at 5. According to
the BSP, Student can exhibit inappropriate behaviors when he wants to “[a]void
non-preferred tasks,” “[o]btain a preferred object/activity/conversation,” “[c]ope
with anxiety,” “[o]btain control of a situation,” or “obtain sensory input or relief.”
Pet. Ex. 5 (BSP) at 0050. Such behaviors include:
Making inappropriate noises, talking to himself, making
faces, tapping objects on his teeth, tapping hands and fingers
with objects, and raising his arms above his head for a
sustained period of time (up to 20 seconds or until prompted
to put his arms down)
Asking questions continuously and talking about negative,
sadistic, violent, conspiratorial and corrupt topics
Complaining inappropriately, whining, swearing, crying,
being aggressive toward others, name calling, and sticking
the middle finger
Informing people when he has done something wrong,
blaming others or lying about what he did wrong
Repeatedly asking, “Am I having a good day?” when
anxious and not accepting “no” for an answer
Repeatedly asking if his mom will be informed of any
Saying, “I love you” and “Do you want a hug?” to
inappropriate people or at inappropriate times
Gagging when overeating, and repeatedly burping
Id.; see id. at 0051 (explaining that Student can exhibit these same behaviors when
he “becomes frustrated with a task, doesn’t want to complete a task, wants a denied
item, is anxious or overwhelmed and having an internal stimulation need”); Pet.
Ex. 3 (IEP) at 010 (listing the same behaviors).
This appeal centers on Student’s May 9, 2012 Individualized
Education Program (“IEP”). The IEP provided Student with special education,
occupational therapy, speech and language therapy, counseling, and transportation,
as well as a variety of other supplementary aids and services, program
modifications, and supports. Id. at 034–35. The Present Levels of Educational
Performance (“PLEPS”) section of the IEP addressed assessments of Student in
reading, writing, math, and behavior and social skills. The PLEPS also addressed a
subject-by-subject review of Student’s performance from recent Variety progress
reports, as well as his progress in speech/language therapy, occupational therapy,
and his behavior support plan. Additionally, the PLEPS summarized the
observations of Student that were conducted on different occasions by, among
others, DOE Special Education Teacher and Care Coordinator Maile White, DOE
Autism Consultant Teacher (“ACT”) Verna Choy, DOE School Psychologist
Melissa Faulkner, and DOE clinical psychologist Ronnie Sato. Id. at 013–18.
Finally, the PLEPS included the detailed report from Parents that was provided at
the IEP meeting. Id. at 019–23.
The IEP enumerated annual measurable goals and objectives for
Student in the areas of reading comprehension, writing, math, oral communication,
self-managing behaviors, decision making, interpersonal communication, and
physical education. Id. at 026–33.
In terms of Student’s mainstreaming placement, the IEP established
[Student] will not participate with non-disabled peers for
English, Math, Social Studies, Science, and required Electives
because he requires specially designed instruction in these areas
that cannot be met in the general education setting even with
the provisions of accommodations and modifications.
Additionally, he requires 1:1 and small group services to
addres[s] his behavior, communication and academic skill
[Student] will receive special education services in a special
education setting at his home school on a DOE public school
Id. at 036. In a notice to Parents following the May 9, 2012 IEP meeting, the DOE
summarized the IEP team’s rationale for Student’s special education placement
within a DOE setting:
[Student] requires a smaller classroom environment with
supports and services that cannot be met in the general
education class setting. Due to delays in reading, writing, math,
he is not able to participate in the general education setting for
With supplementary aids and services and supports this IEP can
be implemented on a DOE public school campus where he will
have opportunities to integrate with non-disabled peers during
recess, lunch, and non[-]academic school activities. DOE
public school may prepare him for the post-high school goals
and current path of study to obtain a diploma. Private separate
facility does not provide [Student] with access to typically
developing peers or access to the general education curriculum.
Resp. Ex. 4 (May 21, 2012 Prior Written Notice) at 0048.
On June 12, 2012, Parents sent an email to the vice-principal of
McKinley High School, stating that they were not in agreement with the IEP, and
thus would not be participating in the transfer meetings that the DOE had proposed
in order to discuss Student’s transfer from Variety to McKinley.1 Resp. Ex. 8
(June 6, 2012 email) at 00474.
On June 27, 2012, Parents submitted a Request for Due Process
Hearing. Pet. Ex. 1 (Due Process Request) at 001–03. On December 18, 2012, the
Hearings Officer issued his Decision after holding a due process hearing on
October 29–30, 2012. The Hearings Officer concluded that the IEP did not deny
Student a free and appropriate public education because, among other things: the
PLEPS, goals, and objectives in the IEP had sufficient baseline data, were
measurable, and appropriately addressed Student’s behaviors and levels; the IEP
placed Student in the least restrictive environment and the DOE did not
predetermine placement; and the IEP team considered the potential harmful effects
in determining placement. Decision at 15–24.
Plaintiffs’ subsequent appeal of that Decision is presently before the
STANDARD OF REVIEW
“The IDEA is a comprehensive educational scheme, conferring on
disabled students a substantive right to public education and providing financial
Although not in the record below, DOE counsel represented in briefing and at oral argument
that Student has, in fact, successfully transitioned to, and is currently attending, McKinley High
assistance to enable states to meet their educational needs.” Hoeft ex rel. Hoeft v.
Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing Honig v.
Doe, 484 U.S. 305, 310 (1988)). It ensures that “all children with disabilities have
available to them a free appropriate public education [(“FAPE”)] 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). The IDEA defines FAPE 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). To provide a FAPE in compliance with the IDEA, a state
educational agency receiving federal funds must evaluate a student, determine
whether that student is eligible for special education, and formulate and implement
an IEP. 20 U.S.C. § 1414. The IEP is to be developed by an “IEP Team”
composed of, inter alia, school officials, parents, teachers and other persons
knowledgeable about the child. 20 U.S.C. § 1414(d)(1)(B).
“Procedural flaws in the IEP process do not always amount to the
denial of a FAPE.” L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th
Cir. 2009) (citations omitted). Once a procedural violation of the IDEA is
identified, the court “must determine whether that violation affected the
substantive rights of the parent or child.” Id. (citations omitted). “[P]rocedural
inadequacies that result in the loss of educational opportunity, or seriously infringe
the parents’ opportunity to participate in the IEP formulation process, clearly result
in the denial of a FAPE.” Id. (alteration in original) (citations and quotation marks
Compliance with the IDEA does not require school districts to provide
the “absolutely best” or “potential-maximizing” education. J.W. v. Fresno Unified
Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010) (citation and internal quotation marks
omitted). Rather, school districts are required to provide only a “‘basic floor of
opportunity.’” Id. (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 201 (1982)). The FAPE need only be “appropriately
designed and implemented so as to convey [the][s]tudent with a meaningful
benefit.” Id. at 433 (citations and quotation marks omitted).
Standard of Review
The standard for district court review of an administrative decision
under the IDEA is set forth in 20 U.S.C. § 1415(i)(2)(C), which provides:
In any action brought under this paragraph, the 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.
This standard requires that the district court give “‘due weight’” to the
administrative proceedings. Capistrano, 556 F.3d at 908 (quoting Rowley, 458
U.S. at 206) (some citations omitted). The district court, however, has the
discretion to determine the amount of deference it will accord the administrative
ruling. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir.
2010) (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir.
1987)). In reaching that determination, the court should consider the thoroughness
of the hearings officer’s findings, increasing the degree of deference where said
findings are “‘thorough and careful.’” Capistrano, 556 F.3d at 908 (quoting
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)).
The district court should give “substantial weight” to the hearings
officer’s decision when the decision “evinces his careful, impartial consideration of
all the evidence and demonstrates his sensitivity to the complexity of the issues
presented.” Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d
1458, 1466–67 (9th Cir. 1996) (citation and quotation marks omitted). Such
deference is appropriate because “if the district court tried the case anew, the work
of the hearing officer would not receive ‘due weight,’ and would be largely
wasted.” Wartenberg, 59 F.3d at 891. “[T]he ultimate determination of whether
an IEP was appropriate,” however, “is reviewed de novo.” A.M. ex rel. Marshall v.
Monrovia Unified Sch. Dist., 627 F.3d 773, 778 (9th Cir. 2010) (citing
Wartenberg, 59 F.3d at 891).
A court’s inquiry in reviewing IDEA administrative decisions is
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? [Rowley,
458 U.S. at 206–07] (footnotes omitted). If these requirements
are met, the State has complied with the obligations imposed by
Congress and the courts can require no more. Id. at 207.
J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 947 (9th Cir. 2010) (some citations
The burden of proof in IDEA appeal proceedings is on the party
challenging the administrative ruling. Hood v. Encinitas Union Sch. Dist., 486
F.3d 1099, 1103 (9th Cir. 2007) (citations omitted). The challenging party must
show, by a preponderance of the evidence, that the hearing decision should be
reversed. J.W., 626 F.3d at 438 (citation omitted).
Plaintiffs assert that the Hearings Officer was incorrect in concluding
that the IEP did not deny Student a FAPE. Specifically, Plaintiffs contend that the
Decision erroneously determined that: (1) Plaintiffs failed to prove that the IEP
lacked baseline information and had insufficient goals; (2) Plaintiffs failed to prove
that the DOE did not properly consider the least restrictive environment or that the
DOE predetermined placement; and (3) Plaintiffs failed to prove that the DOE
neglected to address the potential harmful effects of transfer to McKinley.2
See Opening Br. at 2. The Court concludes that Plaintiffs have not satisfied their
burden of showing that the Decision should be reversed for any of the
aforementioned reasons and therefore affirms the Decision. Each of Plaintiffs’
contentions on appeal is discussed in turn below.
The IEP Contained Baseline Information and Measurable Goals
Plaintiffs contend that the PLEPS section of the IEP fails to address
Student’s actual needs and present levels, and does not include measurable goals
and objectives. The DOE counters that the PLEPS and IEP goals were developed
using the most current information, assessments, and data available on Student and
provide an accurate and thorough description of Student’s achievements, needs,
and objectives. The Court agrees with the DOE.
An IEP is required to have, among other things: “[a] statement of the
child’s present levels of academic achievement and functional performance”; “[a]
The DOE contends that some of Plaintiffs’ arguments raised on appeal were not properly
alleged in the Due Process Request. The Due Process Request, however, alleged that the IEP did
not provide baseline information and measurable goals, the DOE did not properly consider the
least restrictive environment and predetermined placement, and the DOE did not consider the
potential harmful effects of transfer. Pet. Ex. 1 (Due Process Request) at 001–02. Regardless,
the Court concludes (as discussed below) that Plaintiffs have failed to establish that any of these
arguments warrant reversal of the Decision.
statement of measurable annual goals, including academic and functional goals”;
and “[a] description of . . . [h]ow the child’s progress toward meeting the annual
goals . . . will be measured . . . and . . . [w]hen periodic reports on the progress the
child is making toward meeting the annual goals . . . will be provided.” 34 C.F.R.
The Hearings Officer correctly determined that the PLEPS contain
baseline data and sufficiently state Student’s present level of achievement and
performance. Decision at 16–17. The PLEPS adequately detail Student’s present
levels of educational performance, needs, and strengths in the areas of reading,
writing, math, behavior, functional skills, and communication. The PLEPS also
describe Student’s then-recent performance and progress in the subject areas of
language arts, vocational education, community-based instruction, math, life skills,
social studies, physical education, gross motor therapy, speech/language therapy,
and occupational therapy. Pet. Ex. 3 (IEP) at 007–13.
The Hearings Officer correctly concluded that:
[a] review of the goals and objectives in the May 9, 2012 IEP
show that they were written such that Student’s progress could
be measured. For example, the math goal seeks to have Student
understand various types of patterns and functional
relationships, and use symbolic forms to represent, model, and
analyze mathematical situations. Student is to complete the
math related tasks with 80% accuracy 5 out of 5 times. The
short terms objectives include translating between word
problems and equations; computations; using formulas;
working on multi-step problems; and using a calculator. A
language arts goal called for Student to use appropriate
communication skills during structured and unstructured
activities/events 5 out of 5 times with 100% accuracy. The
short term objectives include Student working on his
conversational skills, initiating verbal interaction, and
demonstrating appropriate social skills and rate of speech.
Decision at 16. The goals and benchmarks are specific, capable of measurement
and directly relate to Student’s focus areas, as identified in the PLEPS. As a
further example, in addition to those described by the Hearings Officer, the PLEPS
delineate sixteen different reading strengths, including Student’s ability to
“recognize stated and/or implied details from text” and his ability to “predict
events and outcomes.” Resp. Ex. 3 (IEP) at 007. The IEP then establishes a
correlating annual goal to “demonstrate comprehension at his 7th–8th grade level
on 5 out of 5 passages with 75% accuracy,” and lays out 2 specific interim
objectives for that annual goal. Id. at 026. These are not the vague and cryptic
goals that some courts have determined to be deficient, and that Plaintiffs argue are
present here. See Virginia S. v. DOE, 2007 WL 80814, at *9 (D. Haw. Jan. 8,
2007) (discussing the difference between the specific, measurable goals in that
case—that are similar to the goals present here—in comparison to the vague,
deficient goals in Escambia County Board of Education v. Benton, 406 F. Supp. 2d
1248, 1271 (S.D. Ala. 2005), that plaintiffs in Virginia S.—and the Plaintiffs
here—relied on to support their argument).
Plaintiffs also argue that the IEP inaccurately set goals for Student
which he had already mastered. The PLEPS and goals were based on a variety of
assessments and reports, and the input of the IEP team. See Resp. Ex. 4 (May 21,
2012 Prior Written Notice) at 0049 (listing the evaluation procedures, tests,
records, and reports that served as the basis for the IEP). In particular, as the
Hearings Officer found, the IEP team relied heavily on the input from Variety’s
director and the Variety progress reports to develop the goals and objectives.
Decision at 17. This reliance was appropriate and well-placed. Indeed, it would be
curious if the DOE elected not to use Variety’s progress reports and input from
Variety officials as an important resource for information on Student’s strengths
and needs, given that Student had been attending Variety exclusively for the past
10 years. Further, the Court agrees with the Hearings Officer that Plaintiffs have
not substantiated their claim that Student had mastered certain goals set forth in the
IEP. See Decision at 17 (“[E]ven if the annual goals in the May 9, 2012 IEP are
verbatim or substantially similar in nature with that of the prior year, the evidence
does not support the allegation that these goals were already mastered.”).
Argument is not evidence before this Court, nor was it apparently sufficient to
persuade the Hearings Officer.
The Court notes that the IEP is not completely clear as to “[w]hen
periodic reports on the progress the child is making toward meeting the annual
goals . . . will be provided.” 34 C.F.R. § 300.320(a)(3)(ii). The IEP does provide,
however, that “[t]he school will conduct periodic progress moni[tor]ing of
behavior and progress in counseling, using behavior rating scales and observations
to update the present levels of performance on the IEP at least annually, not[e]
progress, and adjust services and supports as necessary.” Pet. Ex. 3 (IEP) at 035.
Regardless, to the extent that a failure to explicitly state the period in which
progress reports would be provided is a violation of the IDEA, the Court concludes
that it is a de minimis procedural violation that did not result in the loss of
educational opportunity or infringe on Parents’ opportunity to participate in the
The DOE Considered, and Appropriately Employed, the Least
Restrictive Environment (“LRE”) Requirements and Did Not
Plaintiffs contend that the Decision should be reversed because the
DOE predetermined placement and did not consider Parents’ concerns, all in
violation of the LRE requirements. The Court, however, agrees with the Hearings
Officer that “[Plaintiffs] have not shown that parents had no input in the
determination of placement at the home school, or that the DOE had predetermined Student’s placement.” Decision at 19.
The education of a disabled child should take place in the least
restrictive environment. See 20 U.S.C. § 1412(a)(5)(A) (“To the maximum extent
appropriate, children with disabilities . . . are [to be] educated with children who
are not disabled . . . .”). “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). In determining the least
restrictive environment, the following four factors are considered: “(1) the
educational benefits of placement full-time in a regular class; (2) the non-academic
benefits of such placement; (3) the effect [Student] had on the teacher and children
in the regular class; and (4) the costs of mainstreaming [Student].” Sacramento
City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994). Plaintiffs
do not specifically challenge any of the above factors. Instead, Plaintiffs generally
contend that the DOE predetermined Student’s placement in a special education
setting at McKinley and gave no meaningful consideration to Parents’ input to the
Plaintiffs have not established that the DOE predetermined placement.
At the IEP meeting, the IEP team discussed the benefits, impacts, and costs of
placing Student in the general education setting, special education setting (and the
different sub-categories of special education settings), and a combination of
general and special education settings. Resp. Ex. 4 (May 21, 2012 Prior Written
Notice) at 049; Resp Ex. 3 (IEP Meeting Audio Disc 2) at 2:21:20–2:43:00. Other
than Parents’ testimony of their perceptions, there is no evidence that the DOE
predetermined placement. To the contrary, the vice-principal testified that prior to
the IEP meeting, there had been no determination of placement (Hearing Tr. Vol. 2
at 246:16–20), a message that was conveyed repeatedly at the IEP meeting. See
e.g. Resp. Ex. 3 (IEP Meeting Audio Disc 2) at 2:39:46 (noting that a transition
plan would be put into place “if [Student] was placed at a public school setting”)
(emphasis added); id. at 2:40:00 (“If this is the placement, we are not planning to
bring [Student] in without a plan”) (emphasis added). Indeed, if placement had
been already determined prior to May 9, 2012, there would have been no reason
for the IEP team to discuss the various LRE placement options set forth above.
Consequently, although Plaintiffs do not argue any of the Rachel H.
LRE factors specifically, the Court determines that the DOE adequately considered
these factors in placing Student in the special education setting for his classes.
See Decision at 23–24 (explaining why the LRE factors were all properly
considered and why Student’s placement was the LRE). Parents’ contention that
DOE did otherwise appears to be essentially based on their disagreement with the
IEP team’s conclusion that Student should be placed at a DOE school. However,
“[j]ust because the DOE believed (and [Student’s] parents did not believe) that
[McKinley] High School could provide the services of the IEP does not indicate
that [Student’s] placement was ‘predetermined.’” Virginia S., 2007 WL 80814,
Plaintiffs also have not shown that the DOE disregarded or did not
investigate Parents’ concerns about a possible placement in a DOE school. To the
contrary, the evidence indicates that Parents were vocal in expressing their
concerns regarding a transfer of Student to the DOE school, and that these
concerns were addressed. Parents provided a report on the strengths and needs of
Student in functional skills, behaviors and social interaction, and academics. This
three-and-a-half page, detailed report was not only not ignored, but was
incorporated in full into the IEP. Resp. Ex. 7 (Parents’ PLEPS) at 00190–95;
Resp. Ex. 3 (IEP) at 019–23.
Parents and the Variety director additionally expressed concerns at the
IEP meeting about Student’s behaviors and how those behaviors could interfere
with his success in a larger DOE school setting. See Resp. Ex. 3 (IEP Meeting
Audio Disc 2) at 2:33:00–2:34:15. The record indicates, however, that the DOE
considered these concerns, and discussed possible ways to mitigate difficulties,
while emphasizing that the specifics related to transition from Variety to McKinley
would be developed as part of the transition plan. See Hearing Tr. Vol. 2 at 238:9–
17 (testimony from McKinley’s vice-principal that “[the IEP team] ha[s] to
weigh—what we do as the IEP team is we have to weigh that, and we do consider
what mom’s concerns were and what [the Variety director’s] concerns were. But
based on the information that we had,  we felt that we could duplicate the
services that Variety provided and much more.”). Thus, Student’s placement in the
IEP “simply reflects a difference of educational philosophy with the parents, not a
denial of opportunity to participate. School districts have expertise in educational
methods that may be given appropriate weight in assessing an IEP’s compliance
with the IDEA.” Virginia S., 2007 WL 80814, at *11 (internal quotation marks
and brackets omitted). The Court declines to second-guess the DOE’s employment
of that expertise here.
In addition, the DOE conducted several observations of Student, just
prior to the IEP meeting, in order to collect further data on Student’s behaviors.
Resp. Ex. 7 (Observation Reports) at 172–89. In conjunction with the behavioral
observations, the DOE asked Parents two weeks before the IEP meeting to
complete a 150-item Parent Rating Scale that would provide further information on
Student’s behaviors going into the IEP Meeting. Parents, however, did not
complete the Parent Rating Scale, let alone indicate specific concerns that the IEP
team could address. Resp. Ex. 8 (April 23, 2013 letter to Parents) at 279–85.
Moreover, Student’s placement was not immutable. Student was
coming from Variety, where he had no exposure to nondisabled peers and thus no
inclusion opportunities. However, the IEP team recognized that Student’s
performance could change and that his IEP could be adapted accordingly. See
Resp. Ex. 3 (IEP) at 035 (“The school will conduct periodic progress moni[tor]ing
of behavior and progress in counseling, using behavior rating scales and
observations to update the present levels of performance on the IEP at least
annually, not[e] progress, and adjust services and supports as necessary.”). In sum,
the Court determines that the DOE did not predetermine placement, that the IEP
placed Student in the least restrictive environment to meet his IEP goals, and that
the DOE investigated and addressed the concerns of Parents.
The DOE Addressed the Potential Harmful Effects of Placement at a
Plaintiffs assert that the DOE did not consider the potential harmful
effects in deciding that the LRE was at the DOE home school in a special
education setting. The DOE counters that the harmful effects of a transfer to
McKinley were discussed at the IEP meeting and that the Hearings Officer was
correct in concluding that “[Plaintiffs] have not shown that the DOE failed to
conduct an evaluation to determine the possible harmful effect of the change in
placement offered through the May 9, 2012 IEP.” Decision at 21. The Court
agrees with the DOE.
“In selecting the LRE, consideration is given to any potential harmful
effect on the child or on the quality of services that he or she needs . . . .”
34 C.F.R. § 300.116(d). In the IEP meeting, the IEP team discussed the possible
issues in changing Student’s placement from Variety to a DOE school and, in
particular, to a large school like McKinley. In fact, it was Parents, and the Variety
school director, who initially raised some of the possible harmful effects related to
moving to a larger campus setting in conjunction with Student’s known behaviors.
See e.g. Resp. Ex. 3 (IEP Meeting Audio Disc 2) at 2:33:00–2:34:15 (Variety
director discussing potential difficulties with integrating into a larger campus and
general education peers); id. at 2:39:00-2:39:45 (discussion of how Student’s
observed behaviors may manifest in a new placement at McKinley). Plaintiffs
ignore the fact that a large part of the LRE discussion at the IEP meeting was about
weighing the benefits against the potential harmful effects (even if the term
“harmful effects” was not enumerated repeatedly), and how any potential
difficulties with placement at McKinley could be mitigated in the various settings
that the team was considering. See id. at 2:37:20–2:37:48 (vice-principal
discussing mitigation of change in campus size); Hearing Tr. Vol 2 at 215:4–217:3
(explaining the discussion at the IEP meeting of how the pros and cons of various
placements were weighed). Plaintiffs may not be pleased with how the IEP team
considered the potential harmful effects, but Plaintiffs’ argument that those effects
were not considered is unavailing.
Despite Plaintiffs’ argument to the contrary, this case is nothing like
Carrie I. v. DOE, 869 F. Supp. 2d 1225, 1240 (D. Haw. 2012). In Carrie I., there
was no evidence that the IEP team discussed any of the student’s behavioral
issues—or the details of how the larger DOE home school would deal with those
behaviors—prior to the decision to place the student at the DOE home school. Id.
By contrast, in this case, Student’s behavioral issues, and how they would be
impacted by exposure to a large DOE campus, were discussed at length and in
detail at the IEP meeting. Resp Ex. 3 (IEP Meeting Audio Disc 2) at 2:21:20–
2:43:00. Thus, Plaintiffs’ reliance on Carrie I. is misplaced.
Finally, according to Plaintiffs, DOE’s decision to await development
of a transition plan until after the IEP meeting indicates that the potential harmful
effects of placement at McKinley were not considered at the time of the IEP
meeting. This argument has no merit. As a threshold matter, a transition plan may
be created (and appropriately developed) after an IEP has been completed.
Rachel L. v. DOE, 2012 WL 4472263, at *15–16 (D. Haw. Sept. 25, 2012) (citing
cases). In developing a transition plan, the IEP team would engage in a discussion
of how to transition Student in order to address the potential harmful effects that
had already been identified and considered at the IEP meeting. Although Plaintiffs
may have misinterpreted the message, the record reflects that this is what the DOE
communicated in indicating that the transition plan would address the potential
harmful effects, and the Court sees nothing sinister, unusual or inappropriate about
DOE’s approach. See Hearing Tr. Vol. 2 at 234:10–12; Resp. Ex. 3 (IEP Meeting
Audio Disc 2) at 2:40:45–2:41:24.
The Administrative Hearings Officer’s December 18, 2012 Decision
is hereby AFFIRMED.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAI‘I, February 14, 2014.
Anthony C. v. DOE; CV 12-00698 DKW-BMK; ORDER AFFIRMING THE
ADMINISTRATIVE HEARINGS OFFICER’S DECEMBER 18, 2012
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