Department of Education, State of Hawai'i v. Y.

Filing 21

ORDER AFFIRMING IN PART AND REVERSING AND REMANDING IN PART THE HEARINGS OFFICER'S MAY 30, 2013 DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on 11/27/2013. [Order follows hearing held 11/18/2013. Minutes of hearing: doc no. 20 ] (afc) 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). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
Plaintiff,
vs.
Z.Y., by and through his
Parent, R.Y.,

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CIVIL 13-00322 LEK-RLP

Defendants.
_____________________________
ORDER AFFIRMING IN PART AND REVERSING AND REMANDING
IN PART THE HEARINGS OFFICER’S MAY 30, 2013 DECISION
Before the Court is Plaintiff Department of Education, State
of Hawaii’s (“the DOE” or “Plaintiff”) appeal from the
Administrative Hearings Officer’s (“Hearings Officer”) May 30,
2013 Findings of Fact, Conclusions of Law and Decision
(“Decision”1), pursuant to the Individuals with Disabilities
Education Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq.
filed its opening brief on September 30, 2013.

The DOE

[Dkt. no. 16.]

Defendants Z.Y. (“Student”), by and through his parent, R.Y.
(“Father,” collectively, “Defendants”),2 filed their answering

1

The Decision is attached to the Complaint as Exhibit A,
and is also attached to the Administrative Record on Appeal
(“ROA”), at 71-96. The Court notes that the Hearings Officer
convened a hearing on March 11 and March 12, 2013 (“3/11/13
Hearing” and “3/12/13 Hearing,” respectively). [ROA at 2-3.]
2

In the underlying administrative proceeding, Defendants
were the Petitioners, and the DOE was the Respondent. For
clarity purposes, Petitioners’ Exhibits are referred to as
(continued...)

brief on October 18, 2013.

[Dkt. no. 18.]

reply brief on November 1, 2013.

The DOE filed its

[Dkt. no. 19.]

came on for hearing on November 18, 2013.

This appeal

Appearing on behalf of

the DOE was Michelle Puu, Esq., and appearing on behalf of
Defendants was Keith Peck, Esq.

After careful consideration of

the parties’ briefs, and the arguments of counsel, the
May 30, 2012 Decision is HEREBY AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART for the reasons set forth below.
BACKGROUND
At the time of the Decision, Student was five years old
and qualified to receive special education and related services
under the IDEA in the Autism category.

[Decision at 4 (citing

ROA, Pltf.’s Exh. 1, Exh. 3).]
During the 2011-2012 school year, Student attended
preschool at a public school for children ages three years to
fifth grade (“the Home School”).

Student also began kindergarten

at the Home School for the 2012-2013 school year.

While Student

attended kindergarten at the Home School, he received his core
program in a fully self-contained special education classroom
with one-to-one Adult Support (“1:1 Adult Support”) services.
[Id. at 4-5 & n.2 (citing ROA, Pltf.’s Exh. 5).]
I.

September 14, 2012 Observation

2

(...continued)
“Defendants’ Exhibits,” and Respondent’s Exhibits are referred to
as “Plaintiff’s Exhibits.”
2

On September 14, 2012, Father and Student’s mother
(“Mother,” collectively, “Parents”), the DOE Autism Consulting
Teacher (“ACT”),3 the DOE District Resource Teacher (“DRT”), and
the Home School Psychologist observed Student at the Home School
(the “9/14/12 Observation”).4

[Id. at 5 (citing ROA, 3/11/13

Hrg. Trans. at 83; id., 3/12/13 Hrg. Trans. at 222, 250; id.,
Pltf.’s Exh. 26).]
Parents spent the entire school day at the Home School
to learn Student’s routine.
Hrg. Trans. at 128).]

[Decision at 6 (citing ROA, 3/11/13

Mother testified that, during the 9/14/12

Observation, Student displayed inappropriate behavior.

[Id. at

5-6 (citing ROA, 3/11/13 Hrg. Trans. at 84-86, 166; id., 3/12/13
Hrg. Trans. at 251).]

For example, Mother testified that:

(1) Student was lying on the floor and leaning on the 1:1 Adult
Support aide because Student did not want to wait for his peers
to participate in calendar activity; [ROA, 3/11/13 Hrg. Trans. at
86;] and (2) the 1:1 Adult Support aide did not facilitate social
interaction between Student and his peers, and Student did not
respond to the 1:1 Adult Support aide [id. at 166].

[Decision at

6.]

3

“The DOE ACT was qualified to testify as an expert in the
area of educational programming for children with Autism. . . .”
[Decision at 5 n.4.]
4

The Court notes that these individuals appear to have made
independent observations of Student on September 14, 2012.
3

Prior to the 9/14/12 Observation, the DOE ACT had also
observed Student on September 4 and 13, 2012.

The DOE ACT

testified that, when she observed Student on September 4,
“Student was having difficulty with attention to task and
compliance.”
248, 268).]

[Id. at 5 n.4 (citing ROA, 3/12/13 Hrg. Trans. at
On September 14, 2012, the DOE ACT began observing

Student just before the lunch period, but did not observe Student
engaging in inappropriate behavior during lunch, recess, or the
time Student spent in the general education setting.
(citing ROA, 3/12/13 Hrg. Trans. at 262-63).]

[Id. at 6-7

Parents told the

DOE ACT that Student needed more opportunities for socialization.
The DOE ACT assured Parents that the Home School would target the
socialization area for Student.

[Id. at 6 (citing ROA, 3/12/13

Hrg. Trans. at 251).]
II.

October 12, 2012 Meeting
A.

Individualized Education Program Discussion

Although Student’s annual Individualized Education
Program (“IEP”) meeting was to be held in April 2013, a revision
IEP meeting was also convened on October 12, 2012 (“the 10/12/12
Meeting”).5
Meeting:

The following individuals attended the 10/12/12

Parents, the DOE ACT, the Home School Principal, two

DOE special education teachers, the DOE Student Services
5

Revision meetings for Student’s IEP were also held on
August 31, 2012 and September 21, 2012. [Decision at 5 n.3.]
These meetings, however, are not at issue in the instant action.
4

Coordinator (“SSC”), a DOE speech pathologist, and a certified
occupational therapy assistant.6

The DOE Behavioral Health

Specialist testified that she was also present at the 10/12/12
Meeting, although her name does not appear on the DOE’s list of
attendees.7

[Id. (citing ROA, Pltf.’s Exh. 5 at 38; id., 3/12/13

Hrg. Trans. at 201-02).]
Mother testified that, at the 10/12/12 Meeting, Parents
sought a discussion regarding the kind of support Student needed
to be successful in the classroom, based in part on their 9/14/12
Observation.

Parents’ concerns included, inter alia, “Student’s

challenging behaviors, his disengagement in the curriculum, the
appropriateness of the lessons or tasks given to Student, and the
lack of social interaction and/or facilitated opportunities for
social interaction.”

[Decision at 7-8 (quotation marks omitted)

(citing ROA, 3/11/13 Hrg. Trans. at 82-83, 166).]

Mother

testified that the DOE members told her that Student’s
challenging behaviors could be discussed later at a Behavior
Support Team (“BSP”) meeting.

[Id. at 8 (citing ROA, 3/11/13

Hrg. Trans. at 90).]

6

The Court notes that, although it unclear from the ROA,
the certified occupational therapy assistant appears to be a DOE
employee.
7

The individuals at the 10/12/12 Meeting are collectively
referred to as “the IEP team.” All members of the IEP team
except Parents are referred to as “the DOE members.”
5

Upon learning that the DOE ACT had also observed
Student prior to the 9/14/12 Observation, Mother asked the DOE
ACT to share what she had observed so that the IEP team could
discuss Student’s needs.

Mother testified that the DOE members

did not want to discuss this matter, and that the DOE ACT
informed her that “interventions for Student’s inappropriate
behaviors” could be discussed at a “team meeting,” instead of an
IEP meeting.

[Id. (citing ROA, 3/11/13 Hrg. Trans. at 89, 116).]

Mother testified that she just wanted to discuss Student’s needs
and how the IEP team could provide support to help him be
successful.

Mother wanted to talk about Student’s observed

behaviors, particularly those that the DOE employees had observed
because they interacted with Student at school on a daily basis.
[Id. (citing ROA, 3/11/13 Hrg. Trans. at 117).]
The Decision states:
According to the DOE ACT, during a “team meeting,”
the DOE members of a child’s IEP team (including
the teacher and all of the child’s direct services
providers; a school administrator need not be
present) and the child’s parents discuss the
child’s progress – specifically what parts of the
child’s program is [sic] working for the child and
what parts of the program are not working for the
child. If a strategy or intervention is not
working for a child, why is the strategy or
intervention not working? The team meeting
provides a forum to discuss the child’s program
and educate the parents about the necessary
supports and strategies used to support the
child’s communication, social and behavioral
needs.
[Id. at 21 n.14 (citing ROA, 3/12/11 Hrg. Trans. at 282).]
6

The

Home School Principal believes that the “primary goal for an IEP
meeting is to discuss the Present Levels of Educational
Performance (‘PLEP’), IEP goals and objectives, services, and the
Least Restrictive Environment (‘LRE’) for a child.”

[Id. at 11

(citing, ROA 3/12/13 Hrg. Trans. at 295-96).]
The DOE ACT testified that Parents’ concerns at the
10/12/12 Meeting were: (1) Student’s behavior; (2) the
qualifications of his 1:1 Adult Support aide; and (3) that
Student should spend more time in the general education setting.
[Id. (citing ROA, 3/12/13 Hrg. Trans. at 256).]

The Home School

Principal testified that the 10/12/12 Meeting was designed to
address Parents’ concerns, and that Parents wanted to discuss
interventions and methodologies for Student.

Although the DOE

members were open to discussing interventions at any meeting,
they offered to discuss specific interventions at a team meeting.
The Home School Principal agreed that interventions may be
considered services, depending on the type of interventions being
discussed.

[Id. at 10-11 & n.6 (citing, ROA 3/12/13 Hrg. Trans.

at 295-96).]
The DOE ACT agreed that, at the 10/12/12 Meeting,
Parents wanted to discuss the interventions Student needed in
order to be successful in the classroom.
3/12/13 Hrg. Trans. at 272-73).]

[Id. at 8 (citing ROA,

The Decision states:

The DOE ACT testified “. . . that it’s very
necessary, it’s essential for the team to know
7

about the child’s behaviors in the classroom, how
he orients himself, his attention, his intraverbal
abilities, whether he is functioning in close
proximity to his peers, whether he can make
requests, the kind of accommodations that are
provided to him that will benefit [him.]”
[Id. at 8-9 (citing ROA, 3/12/13 Hrg. Trans. at 273).]

The DOE

ACT also testified that, despite the above points being necessary
to design a child’s program, the IEP team did not discuss any of
these points at the 10/12/12 Meeting.

[Id. at 9 (citing ROA,

3/12/13 Hrg. Trans. at 273).]
Mother further testified that, at the 10/12/12 Meeting,
she asked questions regarding how the Home School Principal was
going to implement his plan to have Student participate more in
the general education setting.

Mother wanted details as to how

the IEP team was going to work together to help Student succeed,
and that the IEP team concluded that they were going to follow
Student’s existing IEP.

Mother, however, was unable to

participate in the discussion and receive answers to the
questions she wanted to ask.

[Id. (citing ROA, 3/11/13 Hrg.

Trans. at 118).]
Mother testified that she had also observed Student
during his after-school private tutoring sessions,8 and had
requested video tapes of these sessions.

8

Mother testified that

“When Student attended the [Home School], Parents provided
him with after school tutoring from the Private Tutoring
Service.” [Decision at 15 (citing ROA, 3/11/13 Hrg. Trans. at
105).]
8

the video tapes of Student’s tutoring sessions contained
information regarding his challenging behaviors and food training
issues.

Because Parents were concerned that Student was not

eating at the Home School and was exhibiting challenging
behaviors, Parents wanted to discuss these issues at the 10/12/12
Meeting for purposes of consistency in addressing Student’s
issues throughout the day.
Hrg. Trans. at 120-21).]

[Id. at 9-10 (citing ROA, 3/11/13

When Mother tried to discuss Student’s

needs at the 10/12/12 Meeting, the DOE members informed her that
such issues were not at the Home School, and that Parents would
need to bring the issues up at a team meeting or a BSP meeting.
[Id. at 10 (citing ROA, 3/11/13 Hrg. Trans. at 121).]
B.

Extended School Year Services Discussion
Mother testified that, at the 10/12/12 Meeting, Parents

were also concerned about whether Student would be placed with
non-disabled peers during his extended school year (“ESY”)
services.

After the 9/14/12 Observation, Parents wanted Student

to have as much interaction with his typically developing peers
as possible so that Student could observe how typical children
interact and develop his own verbal skills.

Student did not have

such opportunities for interaction in the special education
resource room.

[Id. (citing ROA, 3/11/13 Hrg. Trans. at 93-94).]

At the 10/12/12 Meeting, the Home School Principal
informed Mother that no regular education students attended ESY,

9

but that the YMCA or Extended Learning Opportunities (“ELO”)
might be available for Student.

“Mother testified that the [Home

School] Principal was unable to provide her with information
about a program during ESY where Student would be integrated with
his regular education peers.”
Hrg. Trans. at 130-31).]
weeks later.

[Id. at 11-12 (citing ROA, 3/11/13

Another IEP meeting was to follow two

[Id. at 12 (citing ROA, 3/11/13 Hrg. Trans. at

133).]
The Home School Principal testified that Parents had
asked about ESY services at the 10/12/12 Meeting, and that
Student would receive summer ESY services.

Because the Home

School Principal was not sure as to what Student’s summer ESY
program entailed, he told Parents that he would look into it.
The Home School Principal also testified that ESY services are
traditionally provided for children with special needs, and not
for general education students.
do not attend ESY services.

Thus, general education students

[Id. (citing ROA, 3/12/13 Hrg.

Trans. at 291; id., 3/11/13 Hrg. Trans. at 1-10).]
The Home School Principal testified that the Home
School is affiliated with the YMCA, and that he was willing to
try and work something out for Student’s summer ESY program.
[Decision at 12 (citing ROA, 3/12/13 Hrg. Trans. at 266, 292).]
According to the DOE ACT, at the 10/12/12 Meeting, there was no
discussion as to “whether it would be appropriate for Student to

10

be involved with regular education students during ESY of whether
Student would benefit from being included in an ESY program with
regular education students. [Id. (citing ROA, 3/12/13 Hrg. Trans.
at 271-72).]
C.

Student’s October 12, 2012 IEP
The October 12, 2012 IEP provided Student with the

following services:
(a) 1830 minutes/week of special education;
(b) 540 minutes/quarter of speech-language
therapy; (c) 120 minutes/quarter of occupational
therapy; (d) daily transportation; (e) Extended
School Year (“ESY”) services after breaks from
school that are longer than three weeks; and (f)
Supplementary Aids and Services, Program
Modifications and Supports for School Personnel speech consultation/observation (60
minutes/quarter); 1:1 Adult Support (1830
minutes/week); Repeated Directions (daily); Parent
Training (2 hours for the 1st month; 1 hour for
each additional month); Sensory Strategies as
needed (daily); Autism Consultation from 10/8/1212/17/12 (12 hours/month); and Autism Consultation
from 1/2/13-4/24/13 (4 hours/month). . . .
. . . .
(a) From April 25, 2012 to July 19, 2012,
Student will participate with general education
peers for recess, morning exercise, lunch,
assemblies, P.E., Fine Arts, Library, Hawaiian
Studies, and appropriate field trips; and
(b) From July 30, 2012 to April 24, 2013,
Student will participate with his general
education peers for recess, morning exercise,
lunch, assemblies, P.E., Fine Arts, Library,
Hawaiian Studies, appropriate field trips,
Science, and Social Studies. Student will not
participate with his general education peers for
Language Arts and Math. For those two classes,
Student will be placed in a small group setting.

11

[Id. at 7 (citing ROA, Pltf.’s Exh. 5 at 35-37).]
III. Parents’ Letters to the Home School Principal
Parents wrote the Home School Principal a letter, dated
October 18, 2012, regarding their concerns from the 10/12/12
Meeting and reiterating their request for: (1) a discussions of
interventions for Student to be successful in the classroom; and
(2) a discussion about whether Student would be with regular
education students during his summer ESY program (“Parents’
10/18/12 Letter”).
11).9]

[Id. at 13 (citing ROA, Defs.’ Exh. 2 at

In his response, dated October 31, 2012, the Home School

Principal told Parents that conversations with respect to the
issue of specific interventions and teaching methodology can be
held during team meetings, and that the Home School was willing
to hold team meetings to discuss Parents’ concerns.
(citing ROA, Pltf.’s Exh. 32 at 149).]

[Id. at 13

The Home School Principal

also told Parents that IEP meetings are for reviewing and
revising the PLEP, goals and objectives, services, and LRE.

With

respect to the ESY issue, the Home School Principal informed
Parents that ESY is designed for special education students who
demonstrate a need for ESY services.

Because general education

students do not qualify, they do not receive ESY services.

9

[Id.

Defendant’s Exhibit 2 consists of multiple letters between
Parents and the Home School Principal that are not consecutively
paginated. The page numbers in this Court’s citations to
Defendants’ Exhibit 2 refer to the pages as they appears in the
cm/ecf system.
12

(citing ROA, Defs.’ Exh. 2 at 16;10 id., Pltf.’s Exh. 32 at
149).]
Parents wrote the Home School Principal another letter,
dated November 13, 2012, stating that Parents disagreed that:
(1) Student did not require changes to his PLEP, goals and
objectives, services, or LRE; and (2) specific interventions and
teaching methodology can be discussed during team meetings.

The

Home School Principal responded to Parents again, restating that
IEP meetings are meant to address Student’s program and
placement.

Strategies, interventions, and methodologies,

however, are not IEP issues, and that is why he previously
offered to hold a team meeting.

[Id. at 13-14.]

the Home School on November 9, 2012.

Student left

[Id. at 14 (citing ROA,

3/11/13 Hrg. Trans. at 135-36).]
IV.

The Private School
Parents enrolled student in a small private school for

typically developing students from kindergarten through twelfth
grade (“the Private School”).

“Mother testified that the Private

School was one of the few schools open to Student and his
disability, and allowed the Private Tutoring Service’s tutors to
accompany Student to school.”

[Id. (footnote omitted) (citing

ROA, 3/11/13 Hrg. Trans. at 97-98 & n.9).]

10

Before Student began

The Court notes that Defendant’s Exhibit 2 consists of
only ten pages.
13

attending the Private School, Parents, Student’s Private School
teacher, and the Private Tutoring Service tutor discussed what
Student would need to be successful in school.
Student attends class with typically developing peers.
When Parents observed Student at the Private School, Student
approached another peer to ask a question.

At the time, the

Private Tutoring Service’s tutor was standing behind the peer,
holding a cue card for Student to read.
interact with the peer.

This helped Student to

Parents have also observed that Student

is slowly opening up to other children, including his nondisabled sibling.

[Id. at 14-15 (citing ROA, 3/11/13 Hrg. Trans.

at 99-101).]
The Private Psychologist, who is the director of the
Private Tutoring Service,11 is responsible for designing applied
behavioral analysis (“ABA”) programs and overseeing their
implementation.

She also generates educational programs.

at 15-16 (citing ROA, 3/11/13 Hrg. Trans. at 19-23).]

[Id.

“Student’s

present program includes attending the Private School for the
entire school day with 1:1 Adult Support service provided by
Private Tutoring Service tutors; private occupational therapy
lessons three times a week; and an after-school ABA program

11

The Private Psychologist is a Board Certified Behavioral
Analyst (“BCBA”), and was qualified to testify as an expert in
the area of the design and management of autism behavior
programs. [Decision at 15 n.10.]
14

provided by Private Tutoring Service tutors and overseen by a
BCBA.”

[Id. at 16 (citing ROA, Defs.’ Exh. 13).]
At first, Student required full prompting from his

tutor for all instructions and had difficulty staying on task.
“Now, when presented with a worksheet, Student requires only
minor prompts and may finish a worksheet semi-independently.

In

spite of transitioning from a half-day of school to a full day of
school in January 2013, Student’s challenging behaviors have
decreased, not increased.”
at 29-30).]

[Id. (citing ROA, 3/11/13 Hrg. Trans.

The Private Psychologist testified that, although

Student initially received most of the instruction from his
Private Tutoring Service Tutor, in February 2013, Student began
receiving instructions from the Private School teacher with the
rest of the class.

“Student is making progress in the area of

academic, social communication, and behavioral skills at the
Private School and in his after-school program with the Private
Tutoring Service.”

[Id. at 17 (citing ROA, Defs.’ Exh. 3, Exh.

4).]
V.

Impartial Due Process Hearing
On November 23, 2012, Defendants filed a request for an

impartial hearing (“RIH”).

The RIH originally alleged that the

DOE denied Student a FAPE for the following reasons:
a.
[Father] requested a discussion about
his child’s needs in the classroom. He was
seeking to discuss what classroom interventions
his child needed to be successful. He wanted this
15

discussion because simply stating that his child
would have “adult support” was not allowing him to
address what actual modifications and supports his
child needed. If he could discuss the needs and
supports his child would benefit from, he could
then determine whether the designation “adult
support” was a sufficient label to ensure that his
child’s needs would be met, or if that label,
“adult support” needed to be further specified.
The DOE prevented this discussion.
b.
[Father] requested a discussion about
extended school year services and how and whether
his child would be provided inclusion
opportunities; time with non-disabled peers. He
wanted inclusion opportunities for his child. The
DOE would not discuss whether his child should be
provided inclusion opportunities.
c.
[Father] discovered that his child’s IEP
was not being implemented regarding the least
restrictive environment portion of the IEP. The
DOE stated that his child’s behaviors were
interfering with the implementation of the IEP.
Parent was not informed of these problems with the
implementation of the IEP. If there were
behavioral problems preventing the implementation
of student’s IEP, the DOE should have informed
parent and held an IEP meeting to address these
problems.
[ROA at 4-5.]

At the 3/11/13 Hearing, Parents withdrew the third

issue listed in the RIH, as well as Defendants’ proposed Exhibits
8 and 13.

[Decision at 3 n.1 (citing ROA, 3/11/13 Hrg. Trans. at

6, 15-17).]
The Hearings Officer ultimately concluded that “by not
discussing Student’s needs at the October 12, 2012 IEP meeting,
[the DOE] significantly impeded Student’s right to a FAPE and
significantly impeded Parents’ opportunity and ability to
participate in the decision-making process regarding the
16

provision of a FAPE to Student.”

[Id. at 23.]

Further, the

Hearings Officer found Student’s program, consisting of the
Private School, the Private Tutoring Service, and the private
occupational therapy lessons, are appropriate.

Thus, the

Hearings Officer ordered the DOE to reimburse Parents for
Student’s Private School tuition and other instructional and
related expenses, including occupational therapy and services
provided by the Private Tutoring Service, from November 11, 2012
through the end of the 2012-2013 school year, including ESY 2013.
[Id. at 24.]

The instant appeal followed.
STANDARDS

I.

IDEA Overview
“The IDEA is a comprehensive educational scheme,

conferring on disabled students a substantive right to public
education and providing financial assistance to enable states to
meet their educational needs.”

Hoeft ex rel. Hoeft v. Tuscon

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 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).

17

The IDEA defines a free appropriate public education
(“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
individualized education program (“IEP”).
U.S.C. § 1414.

See generally 20

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).
Compliance with the IDEA does not require school
districts to provide the “absolutely best” or “potentialmaximizing” education.

J.W. ex rel. J.E.W. v. Fresno Unified

Sch. Dist., 626 F.3d 431, 439 (9th Cir. 2010) (citation and
internal quotation marks omitted).
18

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).
If a parent disagrees with the contents of an IEP, the
parent may challenge the contents thereof by demanding an
administrative due process hearing to be conducted by the local
or state educational agency.

See 20 U.S.C. § 1415(b)(6),

(f)(1)(A).
II.

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.

L.M. v.

Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009)
19

(some citations omitted) (quoting Rowley, 458 U.S. at 206, 102 S.
Ct. 3034, 73 L. Ed. 2d 690).

The district court, however, has

the discretion to determine the amount of deference it will
accord the administrative ruling.

J.W., 626 F.3d at 438 (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.’”

L.M. v. 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[s] officer would not receive ‘due weight,’ and would
be largely wasted.”

Wartenberg, 59 F.3d at 891.

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)

20

(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).
DISCUSSION

As an initial matter, after careful consideration of
the administrative record and the Hearings Officer’s Decision,
the Court finds that the May 30, 2013 Decision, in general, is
sufficiently thorough and careful.

Where a decision contains

some findings that are “thorough and careful,” and others that
are not, however, the court can give deference to the thorough
and careful findings independently.

See R.B., ex rel. F.B. v.

Napa Valley Unified School Dist., 496 F.3d 932, 943 (9th Cir.
2007) (“[W]e accord particular deference to the [hearings
officer’s] ‘thorough and careful’ findings . . . although we
independently review the testimony in the record that [he] failed
to consider.”).

Accordingly, the Court finds that the Hearings

Officer’s findings and conclusions are entitled to increased
deference, with some exceptions noted below.
at 908.

See L.M., 556 F.3d

The Court now turns to the merits of the case.
The DOE argues that the Hearings Officer erred in

making several findings in the Decision, including her ultimate
finding that Parents are entitled to reimbursement from the DOE.
The Court first sets forth the applicable standards with respect
to reimbursement for private placement.

21

The Court then

addresses: (1) whether the Hearings Officer erred in finding that
the DOE denied Student a FAPE; (2) whether the Hearings Officer
erred in finding that the Private School was an appropriate
placement for reimbursement purposes.
I.

Legal Framework
The DOE argues that the Hearings Officer erred in

awarding reimbursement to Parents.

[Opening Br. at 19, 35.]

In

determining whether a qualified disabled student is entitled to
reimbursement for a private placement from the State under the
IDEA, this district court has set forth a three-step analysis:
First, the court asks whether the school
district violated the IDEA, either “procedurally”
or “substantively.” Rowley, 458 U.S. at 206-07,
102 S. Ct. 3034. A school district may violate
the IDEA’s statutory or regulatory procedures in
creating or implementing (or failing to create or
implement) an IEP. Id. Or a school district may
violate the IDEA substantively by offering an IEP
that is not reasonably calculated to enable the
child to receive educational benefit. Id. The
school district must provide the student with a
FAPE that is “appropriately designed and
implemented so as to convey” to the student a
“meaningful” benefit. J.W. v. Fresno Unified Sch.
Dist., 626 F.3d 431, 433 (9th Cir. 2010) (quoting
Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir.
1999)).
Second, if the IDEA’s procedures are
violated, the next question is whether that
violation denied that student a FAPE–for not all
procedural violations are actionable. See, e.g.,
L.M. v. Capistrano v. Unified Sch. Dist., 556 F.3d
900, 909 (9th Cir. 2009); 20 U.S.C.

22

§ 1415(f)(3)(E)(ii).[12] The procedural violation
must result in the “loss of [an] educational
opportunity, or seriously infringe the parents’
opportunity to participate in the IEP formulation
process.” Id. (quoting W.G. v. Bd. of Trs. of
Target Range Sch. Dist., 960 F.2d 1479, 1484 (9th
Cir. 1992)). That is, “where a procedural
violation does not result in a lost education
opportunity for the student, the violation is
‘harmless error’ because it does not deny the
student a FAPE.” R.B. v. Napa Valley Unified Sch.
Dist., 496 F.3d 932, 938 n.4 (9th Cir. 2007)
(quoting M.L. v. Fed. Way Sch. Dist., 394 F.3d
634, 651-52 (9th Cir. 2005) (Gould, J.
concurring)).
The third stage is the remedy-and this stage
itself includes several steps. If an IDEA
violation results in denial of a FAPE, a district
court has discretion to “grant such relief as the
court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C)(iii). Such relief could include
reimbursement for a private placement. See 20
U.S.C. § 1412(a)(10)(C)(ii); Sch. Comm. of
Burlington v. Dep’t of Ed. Of Mass., 471 U.S. 359,
370, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985). It
can also include compensatory education as
“appropriate equitable relief.” Park v. Anaheim

12

Section 1415(f)(3)(E)(ii) provides:
In matters alleging a procedural violation, a
hearing officer may find that a child did not
receive a free appropriate public education only
if the procedural inadequacies–
(i) impeded the child’s right to a free
appropriate public education;
(ii) significantly impeded the parents’
opportunity to participate in the
decisionmaking process regarding the
provision of a free appropriate public
education to the parents’ child; or
(iii) caused a deprivation of educational
befits.
23

Union High Sch. Dist., 464 F.3d 1025, 1033 (9th
Cir. 2006). The parent or guardian, however must
also establish that the particular private
placement is itself “appropriate.” See, e.g.,
Ashland Sch. Dist. v. Parents of Student E.H., 587
F.3d 1175, 1183 (9th Cir. 2009). That is, “where
Parents seek reimbursement for private school
expenses, they ‘are entitled to reimbursement only
if a federal court concludes both that the public
placement violated the IDEA and that the private
school placement was proper under the Act.’” Id.
(quoting Florence Cnty. Sch. Dist. Four v. Carter
ex rel. Carter, 510 U.S. 7, 15, 114 S. Ct. 361,
126 L. Ed. 2d 284 (1993)). “The latter
requirement [(the appropriateness of private
placement)] is essential to ensuring that
reimbursement awards are granted only when such
relief further the purposes of the [IDEA].”
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,
242, 129 S. Ct. 2484, 2493 n.9, 174 L. Ed. 2d 168
(2009).
Dep’t of Educ., State of Haw. v. M.F. ex rel. R.F., 840 F. Supp.
2d 1214, 1226-27 (D. Hawai`i 2011) (some alterations in original)
(emphasis in original) (some footnotes omitted).
II.

Denial of FAPE
In the Decision, the Hearings Officer concluded that

“by not discussing Student’s needs at the October 12, 2012 IEP
meeting, [the DOE] significantly impeded Student’s right to a
FAPE and significantly impeded Parents’ opportunity and ability
to participate in the decision-making process regarding the
provision of a FAPE to Student.”

[Decision at 23.]

The Hearings

Officer also found that “[t]he October 12, 2012 IEP was not
appropriate[.]”

[Id. at 24.]

Insofar as the Hearings Officer

appears to have concluded that the DOE committed both procedural

24

and substantive violations of the IDEA, the Court will review
both findings.
A.

Procedural Violation
The DOE argues that the Hearings Officer erred in

finding that the DOE committed a procedural violation of the
IDEA, and therefore denied Student a FAPE.

[Opening Br. at 24,

33 (citing Decision at 23).]
The Hearings Officer notes, and the DOE actually
emphasizes, that the October 12, 2012 Meeting was an IEP revision
meeting, and not Student’s annual IEP meeting.
n.3; Opening Br. at 27 n.8.]

[Decision at 5

In conducting an IEP revision

meeting, the IDEA requires the IEP team to review existing
evaluation data.

Section 1414(c)(1) states, in pertinent part:

Review of existing evaluation data
As part of any initial evaluation (if appropriate)
and as part of any reevaluation under this
section, the IEP Team and other qualified
professionals, as appropriate, shall–(A) review existing evaluation data on the
child, including–(i) evaluations and information provided
by the parents of the child;
(ii) current classroom-based, local, or
State assessments, and classroom-based
observations; and
(iii) observations by teachers and
related services providers; and
(B) on the basis of that review, and input
25

from the child’s parents, identify what
additional data, if any, are needed to
determine–(i) whether the child is a child with a
disability as defined in section 1401(3)
of this title, and the educational needs
of the child, or, in the case of a
reevaluation of a child, whether the
child continues to have such a
disability and such educational needs;
(ii) the present levels of academic
achievement and related developmental
needs of the child;
(iii) whether the child needs special
education and related services, or in
the case of a reevaluation of a child,
whether the child continues to need
special education and related services;
and
(iv) whether any additional
modifications to the special education
and related services are needed to
enable to the child to meet measurable
annual goals set out in the
individualized education program of the
child and to participate, as
appropriate, in the general education
curriculum.
(Emphases added.)

“‘The Act imposes upon the school district the

duty to conduct a meaningful meeting with the appropriate
parties.’”

N.B. v. Hellgate Elementary Sch. Dist., ex rel. Bd.

of Dirs., Missoula Cnty., Mont., 541 F.3d 1202, 1209 (9th Cir.
2008) (quoting W.G. v. Bd. of Trs. of Target Range Sch. Dist. No.
23, 960 F.2d 1479, 1485 (9th Cir. 1992)).

The Ninth Circuit has

emphasized that a school district cannot abdicate its affirmative
duties under the IDEA.

Id. at 1209.
26

The Hearings Officer concluded that, by preventing
Parents from discussing Student’s needs at the 10/12/12 Meeting,
the DOE “significantly impeded Parents’ opportunity and ability
to participate in the decision-making process regarding a
provision of a FAPE to Student.”

[Decision at 23.]

The Court

finds that the Hearings Officer’s Decision with respect to this
issue is thorough and careful.

The Hearings Officer’s Decision

notes several occasions where Mother testified that, when Parents
attempted to address Students’ challenging behaviors and
classroom needs, the DOE members prevented such discussion.
at 8-10.]

[Id.

Mother also had information about Student’s behavior

that she had obtained during observations of Student at the
Private Tutoring Service, and requested a discussion regarding
Student’s behavior.

[Id. at 9.]

Instead, the DOE members

rebuffed Mother’s request, and told Parents that such discussion
topics were more appropriate for a team meeting or a BSP meeting.
[Id. at 8-10.]

Mother also testified that she wanted the DOE ACT

to share her observations from the 9/13/12 Observation and have
the IEP team discuss Student’s needs, but the IEP team did not
want to discuss this subject either.
1.

[Id. at 8.]

IEP Discussion

According to the DOE, despite Mother’s testimony that
she wanted to discuss certain topics at the 10/12/12 Meeting, she
was unable to state the specific ways in which she communicated

27

her desires for discussion to the IEP team.

[Opening Br. at 29

(citing ROA, 3/11/13 Hrg. Trans. at 116-17, 119-23).]

The DOE

asserts that, at the 10/12/12 Meeting, Mother merely said, “[n]ot
a satisfactory response, but let’s move on.”

[Id. at 30 (citing

ROA, Defs.’ Exh. 8; id., 3/12/13 Hrg. Trans. at 269-70).]

The

DOE argues that, insofar as Parents did not ask follow-up
questions at the 10/12/12 Meeting, the DOE members could not have
been expected to know that Parents wanted more discussion.
[Opening Br. at 33.]

The Court notes, however, that in

conducting a reevaluation of Student at the 10/12/12 Meeting, the
IEP team had a duty under the IDEA to review existing data,
including information provided by Parents and the DOE ACT.
See 20 U.S.C. § 1414(c)(1)(A)(i), (iii).

The DOE also had a duty

to allow for Parents’ meaningful participation in the 10/12/12
Meeting.

See W.G., 960 F.2d at 1485.

duties that the DOE cannot abdicate.
10.

These are affirmative
See N.G., 541 F.3d at 1209-

Thus, the Court emphasizes that, when Parents indicated that

the DOE members’ responses were “not satisfactory,” the DOE’s
duties under the IDEA required the DOE members to inquire further
as to why Parents believed the DOE’s responses to be
unsatisfactory.

The DOE members’ failure to do so significantly

infringed on Parents’ right to participate in the IEP process.
The Court therefore AFFIRMS the Hearings Officer’s finding that
Student was denied a FAPE.

28

2.

ESY Discussion

The Court notes that the Hearings Officer did not make
an express finding that the DOE also committed a procedural
violation by impeding on Parents’ opportunity to participate in
the discussion regarding ESY at the 10/12/12 Meeting.

The

Decision states: “Whether or not Student would be mainstreamed
with non-disabled children during the summer ESY session was not
discussed because the [Home School] Principal did not have
sufficient information regarding the summer ESY session during
Fall 2012.”

[Decision at 22.]

Furthermore, the Hearings Officer

found that the topics Parents wanted to discuss generally at the
10/12/12 Meeting may have been beneficial to determining
Student’s ESY summer program.

The DOE argues that, contrary to

the Hearings Officer’s conclusion, the evidence suggests that the
ESY issue was raised, Parents provided input, and Parents
received an adequate response.

[Opening Br. at 29.]

After reviewing the administrative record, the Court
concludes that the conduct of the DOE members with respect to the
ESY discussion at the 10/12/12 Meeting did not amount to a
violation of the IDEA.

Although the Hearings Officer found that

the IEP team did not discuss whether Student should be
mainstreamed during ESY, the evidence indicate that the Home
School Principal addressed Parents’ concerns for ESY.

The

Decision notes that the Home School Principal testified that,

29

because ESY is generally only provided to qualifying disabled
students, he was unsure as to the availability of ESY programs
with inclusion opportunities.

[Decision at 11-12 (citing ROA,

3/11/13 Hrg. Trans. at 130-31).]

The Home School Principal

further testified that he told Parents that he would look into
ESY program options for Student, including ones at the Home
School, and that another IEP meeting was scheduled two weeks
after the 10/12/12 Meeting.
Trans. at 291-92.]

[Id. at 12 (citing ROA, 3/12/13 Hrg.

The DOE ACT also testified that the Home

School Principal told Parents that “‘we could work something out’
with regard to Student’s ESY Program.”

[Id. (quoting ROA,

3/12/13 Hrg. Trans. at 266).]
This district court has stated:
The IDEA requires that “to the maximum extent
appropriate” students with disabilities
are educated with children who are not
disabled, and special classes, separate
schooling, or other removal of children with
disabilities from the regular educational
environment occurs only when the nature or
severity of the disability of a child is such
that education in regular classes with the
use of supplementary aids and services cannot
be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). Known as
“mainstreaming” or the “least restrictive
environment” (“LRE”), this provision is designed
to indicate a strong preference within the IDEA
for educating handicapped with nonhandicapped
children as much as possible. See Board of
Education v. Rowley, 458 U.S. 176, 181 n.4
(1982); id. at 202 (“The Act requires
participating States to educate handicapped
30

children with nonhandicapped children whenever
possible.”).
C.P. v. Hawaii, CV. No. 09-00393 DAE-BMK, 2010 WL 1962944, at *7
(D. Hawai`i May 17, 2010); see also Park ex rel. Park v. Anaheim
Union High Sch. Dist., 464 F.3d 1025, 1034-35 (9th Cir. 2006)
(recognizing that the district court affirmed the hearings
officer’s grant of relief to the student for the district’s
failure to provide an ESY program in the LRE).

In T.M. ex rel.

A.M. v. Cornwall Central School District, the court stated:
Courts in other circuits have held that a district
that does not operate a mainstream educational
program during the summer is not obligated to
create one simply to satisfy the LRE requirements
of the IDEA. See T.R. v. Kingwood Township Bd. of
Educ., 205 F.3d 572, 579 (3d Cir. 2000) (“a
district that does not operate a regular . . .
program is not required to initiate one simply in
order to create an LRE opportunity for a disabled
child,” but should assess mainstream classroom
options “within a reasonable distance”); Travis G.
v. New Hope-Solebury Sch. Dist., 544 F. Supp. 2d
435, 443 (E.D. Pa. 2008); Reusch v. Fountain, 872
F. Supp. 1421, 1448 (D. Md. 1994) (“the Court does
not read the IDEA to mandate indifference to
legitimate practical considerations or
interference with other school programming to
create artificial LRE settings during the summer
months.”).
900 F. Supp. 2d 344, 352-53 (S.D.N.Y. 2012).
The Hearings Officer’s findings reflect that, like
T.M., this is not a case where the DOE failed to offer Student an
LRE with respect to his ESY summer program, but one where the
issue is whether least-restrictive placement options even exist.
See id. at 353 (citing J.G. ex rel. N.G. v. Kiryas Joel Union
31

Free Sch. Dist., 777 F. Supp. 2d 606, 655 (S.D.N.Y. 2011)).

The

Hearings Officer notes the Home School Principal’s testimony
that, at the time of the 10/12/12 Meeting, he was unsure as to
whether inclusion opportunities were available through the Home
School.

[Decision at 12.]

The Court finds that the lack of

discussion regarding whether Student would receive inclusion
opportunities during his ESY program, before the IEP team had
sufficient information that such programs even exist, did not
amount to a procedural violation of the IDEA.

Thus, to the

extent that the Hearings Officer’s conclusion that Student was
denied a FAPE is based on her finding that the 10/12/12 Meeting
lacked a discussion regarding inclusion opportunities for Student
in his ESY program, the Decision is HEREBY REVERSED.
B.

Substantive Violation
The DOE argues that the Hearings Officer erred in

finding that the lack of discussion at the 10/12/12 Meeting
amounted to a substantive violation of the IDEA, and denied
Student a FAPE.

[Opening Br. at 19.]

The Court finds that the Hearings Officer’s decision is
not sufficiently thorough and careful with respect to this
finding, and therefore accords it less deference.

Nothing in the

administrative record or the Hearings Officer’s Decision
indicates that Parents claimed that Student’s October 12, 2012
IEP was inadequate or inappropriate.

32

Thus, the Court concludes

that the Hearings Officer exceeded the scope of her jurisdiction
in making such a determination.

See Hawai`i Dep’t of Educ. v.

D.K. ex rel. N.K., Civ No. 05-00560 ACK/LEK, 2006 WL 1646093, at
*4 (D. Hawai`i June 6, 2006) (“[A] hearings officer should limit
the issues he considers in reaching his determination to those
that were raised prior to the hearing.”); see also Dep’t of
Educ., Hawai`i v. C.B. ex. rel. Donna B., Civil No. 11-000567
SOM/RLP, 2012 WL 1537454, at *8 (D. Hawai`i May 16, 2013)
(holding that the hearings officer erred by considering issues
that petitioners had not raised in their due process complaint).
The Court HEREBY REVERSES the Hearings Officer’s Decision with
respect to the finding that the October 12, 2012 IEP was not
appropriate.
In summary, the Court finds that the DOE failed to
prove by a preponderance of the evidence that there were no IDEA
violations.

The Court HEREBY AFFIRMS the Hearings Officer’s

finding that the DOE procedurally violated the IDEA in preventing
Parents from participating in the 10/12/12 Meeting, and denied
Student a FAPE.

Insofar as the Court upholds the Hearings

Officer’s finding as to this issue, the Court next considers
whether the Private School was an appropriate placement for
student for reimbursement purposes.

33

III. Appropriateness of the Private School
The DOE argues that the Hearings Officer made no
findings of fact to support her conclusion that the Private
School was appropriate for reimbursement purposes.
at 33.]

[Opening Br.

The DOE asserts that, without any evidence that the

Private School provided specialized instruction to meet Student’s
needs, the Hearings Officer erred in awarding reimbursement to
Parents.

[Id. at 35.]
The Ninth Circuit has stated:
Even if a parent prevails on an IDEA claim,
however, reimbursement is not automatic and the
Supreme Court has repeatedly cautioned that
“parents who unilaterally change their child’s
placement during the pendency of review
proceedings, without the consent of state or local
school officials, do so at their own financial
risk.” Sch. Comm. of Burlington v. Dep’t of Educ.
of Mass., 471 U.S. 359, 373–74, 105 S. Ct. 1996,
85 L. Ed. 2d 385 (1985).

Anchorage School Dist. v. M.P., 689 F.3d 1047, 1058-59 (9th Cir.
2012).
Under 34 C.F.R. § 300.148(c), reimbursement for private
school expenditures is available
[i]f the parents of a child with a
disability, who previously received special
education and related services under the
authority of a public agency, enroll the
child in a private preschool, elementary
school, or secondary school without the
consent of or referral by the public agency,
a court or a hearing officer may require the
agency to reimburse the parents for the cost
of that enrollment if the court or hearing
officer finds that the agency had not made
34

FAPE available to the child in a timely
manner prior to that enrollment and that the
private placement is appropriate.
34 C.F.R. § 300.148(c).
The Ninth Circuit adopted the following standard in
determining what constitutes a “proper” placement within the
meaning of the IDEA:
To qualify for reimbursement under the IDEA,
parents need not show that a private placement
furnishes every special service necessary to
maximize their child’s potential. They need only
demonstrate that the placement 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. ex rel. Baquerizo v. Garden Grove Unified Sch. Dist., 635
F.3d 1155, 1159 (9th Cir. 2011) (emphasis omitted) (some
citations omitted) (quoting Frank G. v. Bd. of Educ., 459 F.3d
356, 365 (2d Cir. 2006)).
With respect to this issue, the Court finds that the
Hearings Officer’s Decision is not sufficiently thorough or
careful to warrant more than minimal deference.
First, the Court notes that the Hearings Officer did
not make an express finding as to whether Parents provided
adequate notice to the DOE before removing Student from the Home
School for reimbursement purposes.

35

See 20 C.F.R.

§ 300.148(d)(1)(i)-(ii).13

Parents’ 10/18/12 Letter expresses

their belief that the Home School failed to offer Student a FAPE,
and their intention of removing Student from the Home School and
to seek reimbursement for private placement.
32 at 148.]

[ROA, Pltf.’s Exh.

Parents removed Student from the Home School on

November 9, 2012.

[Id., 3/11/13 Hrg. Trans. at 135-36.]

The

Court therefore finds that Parents provided adequate notice to
the DOE for reimbursement purposes.
Second, the Court also finds that there is insufficient
evidence to support a finding that the Private School provided

13

20 C.F.R. § 300.148(d)(1)(i) and (ii) provide:
The cost of reimbursement described in paragraph
(c) of this section may be reduce or denied–(1) If–(i) At the most recent IEP Team meeting
that the parents attended prior to
removal of the child from the public
school, the parents did not inform the
IEP team that they were rejecting the
placement proposed by the public agency
to provide FAPE to their child,
including stating their concerns and
their intent to enroll their child in a
private school at public expense; or
(ii) At least ten (10) business days
(including any holidays that occur on a
business day) prior to the removal of
the child from the public school, the
parents did not give written notice to
the public agency of the information
described in paragraph (d)(1)(i) of this
section[.]
36

educational instruction specially designed to meet Student’s
unique needs.

Mother testified that, before Student began

attending the Private School, Parents, Student’s Private School
teacher, and the Private Tutoring Service tutor discussed what
Student would need to be successful in school.
Hrg. Trans. at 98.]

[ROA, 3/11/13

Even if this discussion identified, and gave

thoughtful consideration to, all of Student’s unique needs, it
does not necessarily follow that the Private School provided
educational instruction to meet all of Student’s needs.

The

Private Psychologist testified that there are no special
education teachers at the Private School to work with Student,
and that Student receives instruction from the Private School
teacher with other students.

[Id. at 55.]

The Private Tutoring

Service then provides additional, individualized education and
prompts to Student.

[Id.]

Although the Private Psychologist

testified that the Private School teacher was receptive to
feedback from the Private Tutoring Service regarding Student, her
testimony does not reflect the quality of educational instruction
that the Private School provides Student.

The evidence in the

administrative record indicates that Student has made progress
since Parents enrolled him in the Private School.

A discussion

of Student’s needs and indications of his progress, however, do
not support a conclusion that the Private School is appropriate
for reimbursement purposes.

At most, the Private Psychologist’s

37

testimony establishes that the Private School’s educational
instruction is supported by services necessary to permit Student
to benefit from instruction.

See C.B., 635 F.3d at 1159.

Furthermore, in reviewing the administrative record,
the services that Student receives from the Private Tutoring
Service appears to be independent from the Private School’s
program.

In fact, the evidence shows that Parents had already

been sending Student to the Private Tutoring Service while he was
attending the Home School.
Hrg. Trans. at 120-21).]

[Decision at 9 (citing ROA, 3/11/13

Mother’s testimony shows that Parents’

decision to enroll Student in the Private School was based, at
least in part, on its willingness to allow the Private Tutoring
Service’s tutor to accompany Student to school.

[Id. at 14

(citing ROA, 3/11/13 Hrg. Trans. at 97-98).]
The Court emphasizes that, despite being prevented from
discussing their desired topics at the 10/12/12 Meeting, Parents’
unilateral decision to remove Student from the Home School and to
place him in the Private School was at their own financial risk.
See Anchorage Sch. Dist., 689 F.3d 1058-59.

While the Court

finds that the DOE failed to provide Student with a FAPE, it
cannot determine with certainty the appropriateness of his
placement at the Private School.

Thus, the Court HEREBY REVERSES

the Hearings Officer’s Decision with respect to her findings that
the Private School was appropriate, and that Parents are entitled

38

to reimbursement from the DOE.

The Court therefore REMANDS this

case to the Hearings Officer for the limited purpose of
conducting further proceedings on the issue whether Student’s
private placement was appropriate.
CONCLUSION
On the basis of the foregoing, the Court HEREBY AFFIRMS
IN PART AND REVERSES IN PART the Hearings Officer’s Findings of
Fact, Conclusions of Law and Decision of May 30, 2013.

The Court

REVERSES the Hearings Officer’s Decision to the extent that:
1) the Court concludes that the lack of discussion as to whether
Student would receive inclusion opportunities during his ESY
summer program at the 10/12/12 Meeting did not violate the
IDEA;
2) the Court concludes that the Hearings Officer exceeded her
jurisdiction in finding that the October 12, 2012 IEP was
inappropriate; and
3) the Court concludes that the administrative record does not
support a finding that the Private School was an appropriate
placement for Student for reimbursement purposes.
The Court therefore REMANDS the Findings of Fact, Conclusions of
Law and Decision of May 30, 2013 for further proceedings as to
the issue of the appropriateness of Student’s private school
placement for the purpose of reimbursement.
the Decision in all other respects.
//
//

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The Court AFFIRMS

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 27, 2013.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

DEPARTMENT OF EDUCATION, STATE OF HAWAII VS. Z.Y., BY AND THROUGH
HIS PARENTS R.Y; CIVIL 13-00322 LEK-RLP; ORDER AFFIRMING IN PART
AND REVERSING AND REMANDING IN PART THE HEARINGS OFFICER’S
MAY 30, 2013 DECISION

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