R. et al v. Education, Department of, State of Hawaii
Filing
25
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER. Signed by JUDGE DERRICK K. WATSON on 2/4/2015. ~ The Administrative Hearings Officer's March 7, 2014 decision is hereby AFFIRMED. (ecs, )< hr>CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
In the Matter of
CIVIL NO. 14-00165 DKW-RLP
KIMI R., by and through her Parent,
MALIA V.,
ORDER AFFIRMING THE
DECISION OF THE
ADMINISTRATIVE HEARINGS
OFFICER
Plaintiffs,
vs.
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
Defendant.
ORDER AFFIRMING THE DECISION OF THE
ADMINISTRATIVE HEARINGS OFFICER
This appeal concerns the administrative hearings officer’s (“AHO”)
determination of Kimi R. (“Student”) and Malia V’s (“Parent”) request for due
process following the issuance of Student’s March 15, 2013 Individualized
Education Program (“IEP”) for the 2013-14 school year. Because Parent has not
shown by a preponderance of the evidence that the AHO’s March 7, 2014 decision
should be reversed, the Court affirms that decision. The IEP team possessed and
utilized data and information related to Student’s then-current performance and
program at ABC School and sufficiently evaluated Student. Parent has failed to
show that this information was inaccurate or led to an inappropriate program in the
IEP to address Student’s condition and needs. Further, Parent has provided
insufficient evidence to controvert that the IEP addressed Student’s present
achievement level and needs and set appropriate goals and objectives.
BACKGROUND
Parent previously requested an impartial due process hearing for the IEPs
drafted in April of 2009, 2010, and 2011. The AHO concluded that the IEPs for
those years denied Student a Free and Appropriate Public Education (“FAPE”).
The present appeal does not include those earlier IEPs or the AHO’s earlier
decisions; instead, this appeal involves only the decision of the AHO reviewing a
separate due process request made by Parent relating to the March 15, 2013 IEP.
Student was 13 years old at the time of the AHO’s March 7, 2014 decision.
She has been eligible to receive special education and related services pursuant to
the IDEA because she has Rett’s syndrome. Student attended Mililani Middle
School (the “home school”) for most of her sixth grade year in 2011–2012, when
Parent moved Student to ABC School, a private school. March 7, 2014 Decision
(“Decision”) at 4.
The March 15, 2013 IEP, which was prepared prior to Student’s eighth
grade year, provided Student with special education, occupational therapy, speech
and language therapy, transportation, and a variety of other supplementary aids and
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services, program modifications, and supports. The IEP also provided Student
with an extended school year (“ESY”) that included special education services
only (e.g., no occupational therapy or speech/language therapy) for any breaks
longer than 4 calendar days. Pet. Ex. 3 (IEP) at 023. In terms of placement, the
IEP provided that:
[Student] will receive specialized instruction in the special education
setting for math, language arts, science, social studies, and advisory
due to her difficulties in reading, writing, and math. [Student] will
receive specialized support in the general education setting for her
wheel classes, her elective classes, field trips, lunch, recess, and any
other non-academic activities. [Student] will receive specially
designed instruction in the public school.
Pet. Ex. 3 (IEP) at 025.
On July 22, 2013, Parent filed her request for due process hearing to review
the March 15, 2013 IEP. After hearings on December 9–12, 2013, the AHO issued
a decision on March 7, 2014, concluding that:
Petitioners have not shown that procedurally and substantively, the
March 15, 2013 IEP denied Student a FAPE. Specifically, Petitioners
have not shown that:
- Student’s March 15, 2013 IEP PLEPs were inaccurate, and the
DOE did not have adequate information when developing the
IEP;
- The goals and objectives in the IEP were not measurable and
inappropriate;
- That the program and placement offered was not appropriate to
meet Student’s needs;
- That parental participation was denied; and
- That the ESY services offered were inappropriate.
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Decision at 28.
Parent’s appeal of the AHO’s decision is presently before the Court.
STANDARD OF REVIEW
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. 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
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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 omitted).
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).
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II.
Standard of District Court 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
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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 twofold:
First, has the State complied with the procedures set forth in the Act?
And second, is the individualized educational program developed
through the Act’s procedures reasonably calculated to enable the child
to receive educational benefits? [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
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
Parent asserts that the AHO was incorrect in concluding that the March 15,
2013 IEP did not deny Student a FAPE. Specifically, Parent contends that: (1) the
DOE failed to conduct or obtain current evaluations to address Student’s needs,
particularly in addressing her Rett’s syndrome and her speech needs; and (2) the
Present Levels of Educational Performance (“PLEPS”) section of the IEP was
inappropriate, resulting in goals and objectives that did not address Student’s
needs. The Court concludes that Parent has not satisfied her burden of showing
that the decision should be reversed for either of the aforementioned reasons and
affirms the decision. Each of Parent’s contentions on appeal is discussed in turn
below.
I.
Evaluation of Student
Parent contends that the DOE “failed to conduct or obtain current
evaluations for Kimi’s needs, including for Rett Syndrome, speech,
communication or behavioral needs consistent with her disability.”
Opening Br. at 7. On this issue, the AHO determined that:
[T]he evidence showed that the March 15, 2013 IEP was
developed through 2 meetings, on February 26, 2013 and March 15,
2013. At the February 26, 2013 meeting, Student’s PLEPS were
discussed. As noted above, the autism coach testified that the DOE
had a Rett specialist, the district educational specialist, at the IEP
meetings to assist the IEP team. According to the autism coach, the
interventions for both students with autism and with Rett’s go handin-hand; that is, they are the same.
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It is also noted that Student did not have behavioral issues that
had to be addressed in her IEP. In fact, it is noted that Student’s
desire to be social is her strength.
Further, as Respondent argues in its closing brief, Petitioners
have not proven that the DOE required more current assessment
information in its programming for Student. Petitioners did not put
forth any speech or occupational therapy personnel to challenge the
appropriateness of the PLEPS or the goals and objectives in these
areas.
The Hearings Officer concludes that Petitioners have not shown
that the DOE failed to evaluate, appropriately, all areas of suspected
disability. Further, Petitioners have not shown that the PLEPs in the
March 15, 2013 IEP were inaccurate or relied upon old information.
Rather, in developing the March 15, 2013 IEP, the IEP team
considered both Student’s performance in the past as well as her
current performance at the private school.
Decision at 17–18. The Court agrees with the AHO that Parent has not shown that
the DOE’s evaluation of Student was insufficient.
Parent relies heavily on an earlier AHO decision for the 2009, 2010, and
2011 IEPs which concluded that the DOE denied Student a FAPE. While that
decision is instructive of Student’s history, it does not dictate a determination in
the present case. As noted by the AHO, the March 15, 2013 IEP was developed
based on information obtained from ABC School and also information obtained
from Student’s time spent at Mililani Middle School, prior to transferring to ABC
School. None of these evaluations, observations, or other data from either ABC or
Mililani Middle, played any part in the challenges to the 2009, 2010, and 2011
IEPs.
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Although Parent argues that Student needed to be comprehensively
evaluated to identify all of her needs and that the DOE failed to do that, counsel for
Parent argued at the hearing that Parent was not seeking a medical diagnosis or
medical evaluation of Student. This leaves only evaluations related to Student’s
recent performance, skills, and needs. Parent has simply failed to show that all of
the information that the IEP team was provided with, by both ABC School and by
the individuals who worked with Student at Mililani Middle School the year prior,
did not contain the type of evaluative information to inform the IEP team to plan
services to meet Student’s needs.1
The Court agrees with Parent that more specific information as to Student’s
stage of Rett Syndrome would provide an additional guidance to the IEP team for
planning Student’s services.2 But simply pointing to the lack of that specific
1
Parent argues extensively that Dr. Lasco was not an “expert” in Rett Syndrome and that he only
observed Student once. While it would always be better to have more information (e.g.,
extensive observations and consultations with other providers) and opinions from the most
knowledgeable experts on a particular condition, the record establishes that Dr. Lasco was
sufficiently experienced with Rett Syndrome, that he observed Student, and that he provided
information to the IEP team specific to Student’s condition. As the AHO noted, Dr. Lasco
testified that the program for Student was based on her needs, and not directly associated with
her diagnosis alone. Decision at 14. The Court concludes that Dr. Lasco was sufficiently
familiar with Rett Syndrome and educational programming for Rett Syndrome students.
2
In the decision addressing the 2009, 2010, and 2011 IEPs, the AHO determined that this type of
specific assessment of stage in Rett Syndrome, as well as an autism assessment, would have been
“useful.” March 13, 2012 Decision at 38. The Court agrees that such a specific assessment (i.e.,
identifying what stage of Rett Syndrome Student is presently functioning in) would be useful.
However, given the posture of this case on appeal, and Parent’s burden as the appealing party to
show that the AHO’s decision must be reversed, the Court cannot reverse the decision based
simply on the lack of this specific evaluation, in light of all the information that was at the IEP
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information does not satisfy Parent’s burden to show that the March 15, 2013 IEP
was in fact inappropriate to meet Student’s needs. In other words, even if more
specific Rett Syndrome data for Student was available, there is no evidence to
suggest that Student’s IEP would look any different. Accordingly, the Court
concludes that the evaluations and assessments utilized by the IEP team were
sufficiently current in that they incorporated data from Student’s current
performance at ABC School and Student’s prior year at Mililani Middle School.
Additionally, Parent has not satisfied her burden of showing that these assessments
did not adequately address Student’s needs. The Court agrees with the AHO when
he made the following determination:
The Hearings Officer concludes that Petitioners have not shown that
the program and placement offered by the DOE through the March 15,
2013 IEP was inappropriate to address Student’s needs. Although
Petitioners allege that the DOE failed to offer a Rett specific program,
an appropriate behavioral program, and an appropriate communication
program, the evidence showed that Rett’s syndrome presents like
autism. Therefore, the educational programming for children with
Rett’s syndrome is similar to that of children with autism. As testified
by the district educational specialist and the autism coach, the DOE’s
Pookela Project was specifically designed to meet the needs of
severely disabled students. Further, as testified by the district
educational specialist, educational programming is not based upon a
diagnosis, but, rather, upon the needs and strength of the student. As
testified by the autism coach and the speech-language pathologist, the
team’s disposal. Parent has provided no evidence to suggest that such an evaluation would have
resulted in an IEP substantially different from the one that was created based on the information
available, or would have resulted in information differing from that provided by the DOE
specialist familiar with Rett Syndrome.
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March 15, 2013 IEP was created to address Student’s strengths and
needs.
Decision at 24.
Even assuming that additional assessments were needed, the Court
determines that this would only amount to a procedural defect that did not result in
the loss of educational opportunity for Student. Although Parent makes a
conclusory argument that Student suffered a loss of educational opportunity
because of insufficient evaluations of Rett Syndrome and Student’s behavior, there
is no evidence to actually support any loss of educational opportunity. L.M. v.
Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009). The IEP team
was well aware of Student’s Rett Syndrome, and any accompanying issues and
behaviors. The IEP team had full input from the educators and providers at ABC
School, and the counterparts for the DOE who had worked with Student at Mililani
Middle School the prior year. The Court is not convinced that the DOE did not
sufficiently conduct the necessary assessments and consider the relevant
information to provide Student with adequate services and develop a sufficiently
appropriate IEP.
II.
PLEPS and Goals and Objectives
Parent contends that the IEP fails to specifically describe and set forth
Student’s present achievement levels, needs, and measurable goals. The DOE
counters that the PLEPS and the objectives were developed using the most current
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information, assessments, and data available on Student and provide an accurate
and thorough description of Student’s achievements, needs, and goals. 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]
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.
§ 300.320(a)(1)–(3).
The Hearings Officer correctly determined that the PLEPS in the IEP
sufficiently state Student’s present level of achievement and performance and
identify goals that were measurable and appropriate. Decision at 18–19. The
PLEPS adequately detail Student’s present levels of educational performance,
needs, and strengths in the areas of speech-language/communication, occupational
therapy, math, language arts, and behaviors. Pet. Ex. 3 (IEP) at 008–011.
For example, Parent argues at length that the PLEP for Student’s speech and
language was outdated and that her speech and language needs are not addressed
by the goals and objectives. In the information regarding Student’s therapy at
ABC School during the 2012–2013 school year, the PLEP states, in part, that:
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When [Student] arrived at private school, her requests were not
appropriate for what she was requesting. She had lots of articulation
difficulties. [Student] tended to vocalize something she wanted that
was not present. After the vocalization, she would not move to get the
item she wanted. Private school has been working on the precision of
[Student]’s requests such as having her point to the item she would
like. They are also working on requesting based on sounds, work
approximations, and whole words.
Pet. Ex. 3 (IEP) at 008. Because of the statement that Student has “lots of
articulation difficulties,” Parent contends that the IEP denied Student FAPE
because it does not provide a goal or objective to address those articulation issues.
However, at the administrative hearing, Mr. Cabra, the DOE speech-language
pathologist, gave the following explanation:
Q.
Did you work on articulation issues?
A.
We worked on articulation, yes. But we didn’t have a goal and
objective for it necessarily.
Q.
Why is that?
A.
Because her cognitive functioning is so low. She’s about a year
and a half to two years old. She has all the articulation structures that
a typical two-year old would have in place. And she actually had a
couple that were beyond that two-year mark. So, you know, to teach a
student with cognitive functioning as a two-year old, to teach them
later developing sound, it doesn’t make too much sense because
they’re not cognitively ready for those sounds yet.
Q.
So if I understand you correctly, are you saying she didn’t have
articulation issues given her level of ability?
A.
Correct, correct.
Q.
Cognitively?
A.
Correct, cognitively.
Tr. Vol. 3:474. The Court sees nothing inconsistent between the statement in the
PLEP that Student has articulation issues and Mr. Cabra’s testimony. Mr. Cabra’s
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testimony explained that although Student might manifest articulation issues, there
were precursor speech-language issues, namely cognitive issues, that Cabra opined
should be addressed. Parent has not provided any evidence to controvert Cabra’s
testimony and the Court sees no reason to question it. Further, all other key
information in the PLEP (from both ABC School and Mililani Middle School)
related to Student’s speech-language performance is appropriately addressed in the
IEP’s goals and objectives.
The IEP, together with Cabra’s testimony, show that the IEP team addressed
Student’s speech-language needs and set appropriate goals and objectives. That
the IEP team chose to adopt Cabra’s view of Student’s articulation difficulties is a
discretionary IEP team decision that the Court will not second guess. “‘[T]he
IDEA accords educators discretion to select from various methods for meeting the
individualized needs of a student, provided those practices are reasonably
calculated to provide him with educational benefit.’” S.M. v. DOE, 808 F. Supp.
2d 1269, 1279 (quoting R.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1122
(9th Cir. 2011)). The IEP addressed Student’s needs and in a way that provided
her with educational benefit.
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CONCLUSION
The Administrative Hearings Officer’s March 7, 2014 decision is hereby
AFFIRMED.
IT IS SO ORDERED.
DATED: February 4, 2015 at Honolulu, Hawai‘i.
KIMI R., et al. v. DOE; CV 14-00165 DKW-RLP; ORDER AFFIRMING THE
DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER
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