B. v. Education, Department of, State of Hawaii et al
Filing
26
ORDER DENYING PLAINTIFFS' APPEAL OF THE ADMINISTRATIVE HEARINGS OFFICER'S AUGUST 2, 2013 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on 7/21/2014. (afc)CERTIFICATE OF SER VICEParticipants 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
N.B., individually and or
behalf of his minor child,
Z.B.,
)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT
OF EDUCATION AND KATHRYN
)
)
MATAYOSHI, IN HER OFFICIAL
CAPACITY AS SUPERINTENDENT OF )
)
THE HAWAII PUBLIC SCHOOLS,
)
)
Defendant.
_____________________________ )
CIVIL 13-00439 LEK-BMK
ORDER DENYING PLAINTIFFS’ APPEAL OF THE
ADMINISTRATIVE HEARINGS OFFICER’S AUGUST 2, 2013
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
Before the Court is an appeal pursuant to the
Individuals with Disabilities Act (“IDEA”) by Plaintiff N.B.
(“Father”), individually and on behalf of his minor child, Z.B.
(“Student,” collectively “Plaintiffs”), of the Administrative
Hearings Officer’s (“Hearings Officer”) August 2, 2013 Findings
of Fact, Conclusions of Law and Decision (“Decision”).1
On
March 31, 2014, Plaintiffs filed their Opening Briefing and, on
May 16, 2014, Defendants Department of Education, State of
Hawai`i, and Kathryn Matayoshi, in her official capacity as
Acting Superintendent of the Hawai`i Public Schools (collectively
1
The Decision is located in the Administrative Record on
Appeal (“ROA”) at 79-89.
“the DOE”), filed an Answering Brief.
[Dkt. nos. 20, 23.]
The
Court finds this matter suitable for disposition without a
hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
(“Local Rules”).
After careful consideration of the appeal, the
opening and answering briefs, and the relevant legal authority,
Plaintiffs’ appeal of the Hearings Officer’s Decision is HEREBY
DENIED for the reasons set forth below.
BACKGROUND
Student is a seven-year-old boy diagnosed with Autism,
who lived in Texas prior to moving to Maui on February 27, 2013.
[Decision at 3-4.]
Student was enrolled in school in Texas until
February 26, 2013, and had a Texas Individualized Education
Program (“IEP”) valid from April 19, 2012 to April 18, 2013.
[Id..]
On or about January 1, 2013, Father moved alone to Maui
to begin a new job, while Student, his sister, and his mother,
C.B. (“Mother”), remained in Texas.
[Decision at 3.]
After two unsuccessful calls to the local public school
in Maui (“the Home School”), Father spoke with the Student
Services Coordinator (“SSC”) for seven minutes, on February 20,
2013, starting at 1:06 p.m. (“the Phone Call”).
4.]
[Decision at 3-
He told the SSC that: he lived in Kihei; his family was
relocating from Texas; and his son had an IEP.
2
He asked the SSC
what services the Home School could provide for Student.
[Decision at 4.]
According to Father, the SSC told him that he
was welcome to bring the IEP to the Home School, but Student
would need to be enrolled and, after enrollment, the Home School
would “conduct their own assessments to determine whether or not
[S]tudent was still eligible for a program and services under the
IDEA.”
[Id.]
Father testified that it “really bothered him” that the
post-enrollment assessment period could take up to sixty days,
since a break in Student’s program would be detrimental to
Student.
[Id.]
However, neither Father nor Mother ever visited
Home School or provided it with the IEP, and they never enrolled
Student there.
[Id. at 4-5.]
Instead, Father located a private
program for Student, and enrolled him in it starting in March
2013.
[Id. at 5.]
The Home School has no record of the Phone
Call and the SSC testified that he had no recollection of it.
[Id. at 5 & n.2.]
On May 1, 2013, Student, by and through Father, filed a
Request for Impartial Hearing (“RIH”), and the hearing took place
on June 25, 2013 and July 15, 2013.
[Id. at 2-3.]
The Hearings
Officer issued her Decision on August 2, 2013,2 finding that the
DOE had no jurisdiction over Student, and thus had no obligation
2
Plaintiffs moved to reconsider the Decision on August 12,
2013, [ROA at 90-97,] and the Hearings Officer denied the motion
on August 21, 2013 [id. at 98-104].
3
to provide Student with a Free Appropriate Public Education
(“FAPE”).
[Id. at 8.]
The DOE would have had an obligation to
provide a FAPE only if Student had enrolled in a DOE school, and
had notified the DOE that Student had a valid Texas IEP.
[Id.]
Father filed the instant action on August 30, 2013
(“Complaint”), challenging the Decision under the IDEA, 34 C.F.R.
§ 300.1, et seq., and Section 504 of the Rehabilitation Act of
1973.
He generally disputes the findings of fact “[r]egarding
the information and assertions during the August [sic] 20, 2013
telephone conversation between ‘Father’ and the ‘SSC’,”
[Complaint at ¶ 4.A.,] and specifically disputes the following
purported conclusions of law: Father’s only contact with the DOE
was the Phone Call; the DOE did not have jurisdiction over
Student until his arrival on Maui; and the DOE was not required
to provide a FAPE before enrollment and notification [id. at
¶¶ 6.A.-C.].
Father claims that the DOE denied Student a FAPE
“because [Father] was informed that his son would not receive
special education services for a minimum of 60-days, if he
enrolled in public school.”
[Id. at pg. 4.]
Father requests the following relief: reversal of the
Decision; an award of funding for private educational and related
expenses until the start of the 2015-2016 school year; attorneys’
fees and costs; and any additional appropriate relief.
pgs. 4-5.]
4
[Id. at
STANDARD
“The IDEA is a comprehensive educational scheme,
conferring on disabled students a substantive right to public
education.”
J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist.,
626 F.3d 431, 432 (9th Cir. 2010) (quoting Hoeft v. Tucson
Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir. 1992) (citing
Honig v. Doe, 484 U.S. 305, 310, 108 S. Ct. 592, 98 L. Ed. 2d 686
(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).
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.
Id. at § 1401(9).
To provide FAPE in compliance with the IDEA, a
state educational agency receiving federal funds must evaluate a
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student, determine whether that student is eligible for special
education, and formulate and implement an IEP.
See generally 20
U.S.C. § 1414.
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 “due weight” be given to the
administrative proceedings.
L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 908 (9th Cir. 2009) (some citations omitted)
(quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 73 L. Ed. 2d 690
(1982)).
The amount of deference accorded is subject to the
court’s discretion.
J.W., 626 F.3d at 438 (citation omitted).
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., 556 F.3d at 908 (quoting Capistrano Unified Sch.
6
Dist. v. Wartenberg ex rel. Wartenberg, 59 F.3d 884, 892 (9th
Cir. 1995)).
“Substantial weight” should be given to the
hearings officer’s decision when it “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 hearings officer would not
receive ‘due weight,’ and would be largely wasted.”
Wartenberg,
59 F.3d at 891.
“Harmless procedural errors do not constitute a denial
of FAPE.
However, procedural inadequacies that result in the
loss of educational opportunity . . . clearly result in denial of
FAPE.”
Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1043 (9th
Cir. 2013) (citations and internal quotation marks omitted).
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).
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DISCUSSION
Father has Student’s best interests in mind.
It is
entirely understandable that Father was concerned that the Home
School’s assessment would result in a break in Student’s program,
which could be detrimental to Student and his educational
progress.
However, in order for this Court to reverse the
Decision, it must find that the Hearings Officer made a legal or
factual error.
But neither the Complaint nor the Opening Brief
identify how the Hearings Officer erred, and whether the error
was factual or legal.
While this Court has jurisdiction to hear
Plaintiffs’ appeal, see 20 U.S.C. § 1415(i)(2)(c), Plaintiffs
must demonstrate that the Decision was erroneous and should be
reversed.
See J.W., 626 F.3d at 438.
The Court cannot conclude
that there is any evidence that the Hearings Officer made a
contrary finding of fact, or any legal support showing that she
misapplied the law.
Instead, it appears that Plaintiffs disagree with the
Decision and the effects of the Decision.
See, e.g., Opening
Brief at 4 (“This was not an acceptable process to father.”).
They appear to argue for an extension of the law, requiring
public schools to commit to providing a FAPE based on general
inquiries from prospective students’ parents.
See id. at 6 (“The
DOE failed to inform parents that they could implement the Texas
IEP and in so doing denied Student a FAPE.”).
8
While it is
understandable why Plaintiffs feel the law should be so, it is
not what the law provides.
Plaintiffs are correct that IEPs “follow special
education students when they move to another state.”
See, e.g.,
A.F. v. Hamamoto, No. CV 07-00278 JMS KSC, 2007 WL 2684133, at *6
(D. Hawai`i Sept. 7, 2007).
But it is enrollment, and not a
phone inquiry, that triggers a FAPE, and implementation of the
IEP in the new school district:
IEPs for children who transfer from another
State. If a child with a disability (who had an
IEP that was in effect in a previous public agency
in another State) transfers to a public agency in
a new State, and enrolls in a new school within
the same school year, the new public agency (in
consultation with the parents) must provide the
child with FAPE (including services comparable to
those described in the child’s IEP from the
previous public agency), until the new public
agency –
(1) Conducts an evaluation pursuant to
§§ 300.304 through 300.306 (if determined to
be necessary by the new public agency); and
(2) Develops, adopts, and implements a new
IEP, if appropriate, that meets the
applicable requirements in §§ 300.320 through
300.324.
34 C.F.R. § 300.323(f) (emphases added).
Plaintiffs quote this
Regulation and argue that “[t]he law is clear[.]”
at 2-3.
Opening Brief
However, this Regulation does not support that the
Hearings Officer erred; nor does it confer on the SSC a duty to
provide a FAPE to Student before he transferred and enrolled in a
DOE school.
This regulation provides the opposite: that the DOE
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did not owe Student a FAPE at the time of the Phone Call.
Since there is no showing that the Hearings Officer
erred in applying the facts or the law, the Court must DENY
Plaintiffs’ appeal.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ appeal of
the Hearings Officer’s Decision, filed August 30, 2013, is HEREBY
DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 21, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
N.B. VS. STATE OF HAWAI`I, ET AL.; CIVIL 13-00439 LEK-BMK; ORDER
DENYING PLAINTIFFS’ APPEAL OF THE ADMINISTRATIVE HEARINGS
OFFICER’S AUGUST 2, 2013 FINDINGS OF FACT, CONCLUSIONS OF LAW AND
DECISION
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