G. v. Department of Education of the State of Hawaii, The

Filing 32

ORDER AFFIRMING THE APRIL 17, 2014 DECISION OF THE ADMINISTRATIVE HEARINGS OFFICER. Signed by JUDGE DERRICK K. WATSON on 06/19/2015. Plaintiffs seek reimbursement for Students private tutoring expenses. This remedy, howe ver, is only permissible if the Court concludes that there was a denial of FAPE. "Parents 'are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was pro per under the Act.'" Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (quoting Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993)) (emphasis in original). Because the Court concludes that there was no deni al of FAPE, Plaintiffs are not entitled to reimbursement. (eps )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

A.G., individually and on behalf of her
minor child, M.G.,
Plaintiffs-Appellants,
vs.

CIVIL NO. 14-00234 DKW-RLP
ORDER AFFIRMING THE
APRIL 17, 2014 DECISION OF THE
ADMINISTRATIVE HEARINGS
OFFICER

STATE OF HAWAII, DEPARTMENT
OF EDUCATION and KATHRYN
MATAYOSHI, in her official capacity
as Superintendent of the Hawaii Public
Schools,
Defendants-Appellees.

ORDER AFFIRMING THE APRIL 17, 2014 DECISION
OF THE ADMINISTRATIVE HEARINGS OFFICER
This appeal concerns the administrative hearings officer’s (“AHO”)
determination of M.G. (“Student”) and A.G.’s (“Parent”) request for due process
following the issuance of Student’s October 29, 2013 Individualized Education
Program (“IEP”) for the 2013-14 school year. Because Plaintiffs have not shown
by a preponderance of the evidence that the AHO’s April 17, 2014 decision should
be reversed, the Court affirms that decision.

1

BACKGROUND
During the relevant time period, Student was 14 years old, attending Maui
High School (“MHS”), and was eligible for special education services under the
category of intellectual disability. Prior to attending MHS (“Home School”) in
August 2013, Student attended Lokelani Intermediate School (“Former Home
School”), and received special education services under the category of specific
learning disability. Plaintiffs did not challenge Student’s May 1, 2013 IEP, which
was the last one developed by his Former Home School. Decision at 4-5.1
The meeting to develop Student’s May 1, 2013 IEP addressed Student’s
transition from intermediate to high school. At that meeting, the IEP team
discussed with Student’s parents, Student’s placement in the high school workplace
readiness program, and explained the difference between that certificate program
and the diploma programs at the Home School. Decision at 5-6. The workplace
readiness program is a certificate track program solely for disabled students;
participants do not receive a diploma and there is no physical education (“PE”)
requirement. Decision at 7-8. Pursuant to the May 1, 2013 IEP, Student was to be
placed in special education classes for all academic subjects at the Home School
because of his below-grade level abilities in nearly all areas. The May 1, 2013 IEP

1

The April 17, 2014 decision is located in the Record on Appeal (“ROA”) at pages 221-246.

2

set out Student’s placement with his non-disabled peers for recess, lunch, lunch
recess, school-wide assemblies, and other school-sponsored events. Decision at
5-6.
Parent requested that Student be re-evaluated in July 2013. The Home
School scheduled an evaluation conference and IEP meeting for August 13, 2013,
which Parent attended. The IEP resulting from this August 13, 2013 meeting
included the same placement in the Home School’s workplace readiness program,
and explained that those who participate in this self-contained certificate program do
not participate in the general education classroom curriculum. Decision at 7.
School Psychologist Jared Kono attended the August meeting and prepared a
Psychoeducational Evaluation, dated September 11, 2013. Kono concluded that
Student should be eligible for services under the intellectual disability category, due
to his below-average cognitive ability in conjunction with adaptive skills. Both of
Student’s parents attended an October 24, 2013 conference to discuss the evaluation
and determine Student’s eligibility category. Student’s parents indicated that they
needed more time to review the evaluation, and a follow-up conference convened on
October 29, 2013. At that meeting, parents were provided with a draft IEP prepared
by John Van Plantinga, the Home School Special Education Teacher. Decision at
8-9.

3

The AHO characterized the October 29, 2013 draft IEP as a “working
document that the IEP team would discuss to see if it needed to be changed, altered,
expanded, or contracted before it becomes the final working document.” Decision
at 9. At the October 29, 2013 meeting, the draft IEP was read aloud in its entirety
by the teachers responsible for drafting each section. Decision at 9. Based upon
parental feedback at that meeting, the IEP team decided to provide formal progress
notes to Parent in the speech-language area. At the October 29, 2013 meeting,
speech language objectives were agreed upon and incorporated into the final IEP.
Decision at 9-10.
The October 29, 2013 IEP meeting included specific discussion of Student’s
placement in the workplace readiness program in response to parental concerns that
Student be placed with non-disabled peers for part of the day, and their desire that
Student go to college. The IEP team explained why it felt the workplace readiness
program was appropriate given Student’s current evaluation. Decision at 10. The
record does not reflect any specific discussion of Student’s participation in PE with
non-disabled peers at this meeting. Decision at 11.
The October 2013 meeting also included specific discussion of Student’s
eligibility for Extended School Year services (“ESY”) in response to parental
concerns and desire that Student receive ESY. The IEP team explained that Student

4

had not shown regression in speech and language during school breaks or otherwise
demonstrated a need for ESY. Decision at 10.
Following the October 2013 IEP meeting, the Special Education Teacher
emailed Parent to determine whether the most recently developed IEP should be
labeled a “revision” IEP, valid until the annual renewal date of May 1, 2014, or
labeled an “annual” IEP, meaning that the next scheduled IEP meeting would be in
October 2014. The teacher indicated that the IEP would be considered a “revision”
IEP if he did not hear back that day. Parent did not respond until November 15,
2013, at which point she indicated that the IEP should be considered “annual.”
Decision at 11-12.
Student’s final October 29, 2013 IEP included placement in the workplace
readiness program, and stated that Student did not meet the standard for ESY
services. Decision at 12. During the Home School’s winter break in December
2013, Plaintiffs retained a private tutor who worked with Student four days a week
for two weeks. Decision at 12.
In their Request for Due Process Hearing below, Plaintiffs alleged that the
October 2013 IEP was flawed because:
1.

Student was improperly denied extended school year services.

2.

Student was denied speech/language services that appropriately
addressed his needs.
5

3

Student was denied supplementary [aids] and services to support
him in a general education setting.

4.

The [Department of Education (“DOE”)] failed to consider the
least restrictive environment for implementation of Student’s
program when his placement was predetermined before the
completion of the development of that program and when the
placement failed to consider the appropriate factors.

5.

Student’s least restrictive environment should have included
physical education and non-academic classes with non-disabled
peers.

Decision at 13.
The AHO held a due process hearing on February 24 and 25, 2014, and issued
his decision on April 17, 2014. The decision concluded that Plaintiffs failed to
meet their burden to establish that the DOE denied Student a free appropriate public
education (“FAPE”) and dismissed their complaint. Plaintiffs’ appeal of the April
17, 2014 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

6

U.S. 305, 310 (1988)). It ensures that “all children with disabilities have available
to them a free appropriate public education [(“FAPE”)] that emphasizes special
education and related services designed to meet their unique needs and prepare them
for further education, employment, and independent living[.]” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA defines FAPE as special education and related
services that -(A) have been provided at public expense, under public supervision
and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary
school education in the State involved; and
(D) are provided in conformity with the individualized education
program required under section 1414(d) of this title.
20 U.S.C. § 1401(9). To provide a FAPE in compliance with the IDEA, a state
educational agency receiving federal funds must evaluate a student, determine
whether that student is eligible for special education, and formulate and implement
an IEP. 20 U.S.C. § 1414. The IEP is to be developed by an “IEP Team”
composed of, inter alia, school officials, parents, teachers and other persons
knowledgeable about the child. 20 U.S.C. § 1414(d)(1)(B).
“Procedural flaws in the IEP process do not always amount to the denial of a
FAPE.” L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009)
(citations omitted). Once a procedural violation of the IDEA is identified, the court

7

“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).
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

8

(iii) basing its decision on the preponderance of the evidence,
shall grant such relief as the court determines is appropriate.
This standard requires that the district court give “‘due weight’” to the
administrative proceedings. Capistrano, 556 F.3d at 908 (quoting Rowley, 458
U.S. at 206) (some citations omitted). The district court, however, has the
discretion to determine the amount of deference it will accord the administrative
ruling. J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 438 (9th Cir.
2010) (citing Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1311 (9th Cir.
1987)). In reaching that determination, the court should consider the thoroughness
of the hearings officer’s findings, increasing the degree of deference where said
findings are “‘thorough and careful.’” Capistrano, 556 F.3d at 908 (quoting
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)).
The district court should give “substantial weight” to the hearings officer’s
decision when the decision “evinces his careful, impartial consideration of all the
evidence and demonstrates his sensitivity to the complexity of the issues presented.”
Cnty. of San Diego v. Cal. Special Educ. Hearing Office, 93 F.3d 1458, 1466–67
(9th Cir. 1996) (citation and quotation marks omitted). Such deference is
appropriate because “if the district court tried the case anew, the work of the hearing
officer would not receive ‘due weight,’ and would be largely wasted.” Wartenberg,
59 F.3d at 891. “[T]he ultimate determination of whether an IEP was appropriate,”
9

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).
DISCUSSION
Plaintiffs assert that the October 29, 2013 IEP denied Student a FAPE for both
procedural and substantive reasons. Some of their claims, however, are
unsupported and conclusory. Plaintiffs, for instance, present nothing regarding the
alleged inadequacy of Student’s speech language services or supplementary aids and

10

services for this Court to review.2 Accordingly, the Court affirms the AHO’s
conclusions that Plaintiffs failed to sustain their burden of proof on these issues.
See Decision at 25-26; see also Dept. of Educ. v. M.F. ex rel. R.F., 2012 WL 639141,
at *2 (D. Haw. February 28, 2012) (citing Warren G. ex rel. Tom G. v. Cumberland
County Sch. Dist., 190 F.3d 80, 84 (3rd Cir. 1999) (issue is waived unless a party
raises it in its opening brief) and Blanchard v. Morton Sch. Dist, 509 F.3d 934, 938
(9th Cir. 2007) (student abandoned claim by failing to raise in in brief on appeal)).
Plaintiffs’ remaining contentions are addressed below.
I.

Plaintiffs Fail to Establish Procedural Violations
A.

Predetermination of Placement

Plaintiffs contend that Student was improperly placed in the workplace
readiness certificate program, as set forth in the October 29, 2013 draft IEP. They
further contend that because this placement continued into Student’s final IEP of the
same date, his placement must have been predetermined. Opening Br. at 2-4.
They argue that “placement cannot be determined until all other parts of the IEP
have been discussed and determined.” Id. at 3; see e.g., K.D. v. Dep’t of Educ., 665
F.3d 1110, 1123 (9th Cir. 2011) (“A school district violates the IDEA if it

2

In fact, because their sole brief on appeal does not address these issues that were asserted as part
of their administrative due process request, it appears that Plaintiffs may have intended to simply
abandon these arguments. See Opening Br., Dkt. No. 24.

11

predetermines placement for a student before the IEP is developed or steers the IEP
to the predetermined placement . . . . because the Act requires that the placement be
based on the IEP, and not vice versa.”) (citations omitted).
Plaintiffs’ timing-based arguments do not capture the complete picture.
Student was first placed into the workplace readiness certificate program as part of
this May 1, 2013 IEP completed at the Former Home School. Plaintiffs neither
objected to the placement at that time, nor did they otherwise challenge the May 1,
2013 IEP. Plaintiffs also did not object to the same placement during the course of
the August 13, 2013 IEP meeting at the Home School, which occurred at the start of
the school year. It is difficult to imagine a predetermination of placement claim
where a student is placed in a program under a previous IEP to which the parents did
not object, and is then placed in that same program during the next IEP cycle. In
any event, Plaintiffs acknowledge that they were heard on this subject at the October
29, 2013 IEP meeting, that they had the opportunity to ask questions, and that they
provided their feedback about placement in the program at that time. See Decision
at 19.
The education of a disabled child should take place in the least restrictive
environment. See 20 U.S.C. § 1412(a)(5)(A) (“To the maximum extent
appropriate, children with disabilities . . . are [to be] educated with children who are

12

not disabled . . . .”). “While every effort is to be made to place a student in the least
restrictive environment, it must be the least restrictive environment which also
meets the child’s IEP goals.” County of San Diego v. Cal. Special Educ. Hearing
Office, 93 F.3d 1458, 1468 (9th Cir. 1996). In determining the least restrictive
environment, this Court considers the following four factors: “(1) the educational
benefits of placement full-time in a regular class; (2) the non-academic benefits of
such placement; (3) the effect [Student] had on the teacher and children in the
regular class; and (4) the costs of mainstreaming [Student].” Sacramento City
Unified Sch. Dist. v. Rachel H., 14 F. 3d 1398, 1404 (9th Cir. 1994). Although the
Rachel H. factors were not specifically discussed at the October 29, 2013 IEP
meeting, Plaintiffs must show prejudice from this failure. See Decision at 18.
They did not do so during the due process proceedings below nor have they done so
on appeal. Plaintiffs have also failed to demonstrate how any procedural
inadequacies have resulted in the loss of educational opportunity or infringement on
their ability to participate in the formulation of the IEP. See L.M. v. Capistrano
Unified Sch. Dist., 556 F.3d 900, 909 (9th Cir. 2009).
Here, there is no dispute that the IEP team discussed placement in the
workplace readiness program and attempted to address parental concerns at the
October 29, 2013 meeting. Plaintiffs simply disagree with Student’s placement in

13

all special education classes for academic subjects, without rebutting any of the
DOE’s assessments of Students’ cognitive functioning, adaptive skills, and
academic skills. For example, the September 11, 2013 Psychoeducational
Evaluation showed Student’s cognitive function was in the one percentile ranking.
See DOE’s Exh. 2 at 37-44; id at 39 (general level of intellectual functioning well
below average range compared to peers). Student’s Educational Evaluation, based
on August 2013 testing, showed academic skills in the very low range across all
areas, including broad reading, basic reading skills, reading comprehension, brief
reading, broad mathematics, math calculation skills, math reasoning, brief
mathematics, broad written language, written expression, and brief writing. See
DOE’s Exh. 2 at 53; id. at 58 (reading at second grade level); id. at 59 (cognitive
intelligence assessed at FCI-67, well below average); id. at 63 (noting Student’s
achievement delay and learning difficulty primarily due to mental retardation).
Based upon the most current evaluations, the IEP team concluded that Student met
the eligibility criteria for the intellectual disability category, and that his continued
placement in the workplace readiness program was appropriate. See DOE’s Exh. 2
at 44 (Concluding that the “current placement in the Workplace Readiness Program
appears to be the most appropriate where he is able to learn functional academics
and develop work skills.”); DOE’s Exh. 6 at 117 (“His educational needs will be best

14

met in the workplace readiness program. His continued course of study will
include functional academics, independent life skills and employment related
skills.”); id. at 131 (“The least restrictive environment for [Student] will be the
certificate program setting. Due to [Student’s] low cognitive ability with his
designation of Intellectual Disability, [Student] will make progress in a smaller
environment with a specialized curriculum.”).
“[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. State of
Hawaii, Dept. of Educ. 808 F. Supp. 2d 1269, 1279 (D. Haw. 2011) (quoting R.P. v.
Prescott Unified Sch. Dist., 631 F.3d 1117, 1122 (9th Cir. 2011)). Under the
circumstances, the AHO properly concluded that the “fact that the DOE did not
agree with [Plaintiffs] and that the DOE felt the workplace readiness program was
the best place for Student at that time does not amount to such prejudice because the
DOE was not obligated to agree with [Plaintiffs].” Decision at 19. Further, the
AHO appropriately reasoned that “the existence of a draft IEP is not, in itself,
conclusive evidence of predetermination. . . . The evidence demonstrated that it
was a working document, that Parents were able to discuss the sections that were of
concern to them, and that the DOE listened to their concerns.” Decision at 19.

15

Plaintiffs present no evidence or argument on appeal to disturb the AHO’s sound
conclusion that they failed to establish a predetermination claim, or any other denial
of a FAPE based upon Student’s placement in the workplace readiness program.
B.

Denial of ESY Services

Plaintiffs next assert that Student “was not afforded an appropriate discussion
as [sic] the eligibility for extended school year.” Opening Br. at 4. This is because
“the DOE stated that the student needed to use the new IEP goals and objectives so
that the team could determine if he regressed and how long it took him to recoup.”
Id.
The record, however, shows that ESY eligibility was specifically discussed
and that there was no data to support the present need for ESY. For example,
Plaintiffs expressed a desire for ESY services as part of the discussion of the draft
IEP at the October 29, 2013 meeting. See 2/24/14 Tr. at 99; 2/25/15 Tr. at 349-50.
Therefore, the AHO correctly found that “Parents did have an opportunity to discuss
ESY at the October 29, 2013 IEP meeting, so they weren’t foreclosed from
participation in that regard. The question comes down then to whether the denial of
ESY services resulted in a loss of educational opportunity. As to this point,
[Plaintiffs] introduced no evidence that it did.” Decision at 20.

16

It is well-settled that issues regarding “ESY eligibility criteria and
methodology are classic examples of technical questions of educational policy.”
Virginia S. ex rel. Rachael M. v. Dep’t of Educ., Hawaii, 2007 WL 80814, at *12 (D.
Haw. Jan. 8, 2007). Courts are not educators and are not “to substitute [our] own
notions of sound educational policy for those of the school authorities which [we]
review.” Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1107–08 (9th Cir.
2007) (citations omitted) (alterations in original); Van Duyn v. Baker Sch. Dist., 502
F.3d 811, 817 (9th Cir.2007) (same). Here, the IEP team concluded that Student
was not eligible for ESY services, and without more, the Court will not
second-guess that conclusion. See DOE’s Exh. 6 at 132 (“Due to [Student’s] rate of
regression, recoupment and the nature and severity of his disability, [Student] will
not receive ESY special education services.”); id. at 128 (noting that Student does
not meet the standard for ESY eligibility); 2/25/14 Tr. at 347 (lack of data
demonstrating need for ESY).
The burden is on Plaintiffs to establish that ESY services are necessary. See
Virginia S., 2007 WL 80814, at *12; Kenton County Sch. Dist. v. Hunt, 384 F.3d
269, 279 (6th Cir. 2004) (holding that parents seeking ESY bore the burden of proof
with respect to necessity of ESY to avoid something more than adequately
recoupable regression and to permit student to benefit from instruction). Plaintiffs

17

have provided the Court with no evidence to support their claims that Student was
entitled to ESY. As a result, they have not met their burden, and the denial of ESY
services was not a denial of FAPE.
II.

Plaintiffs Fail to Establish Substantive Violations
Finally, Plaintiffs argue that Student should have received PE in the general

education program, and was therefore denied the least restrictive placement. The
April 17, 2014 decision addressed the same arguments Plaintiffs make on appeal,
noting that Plaintiffs’ only evidence on this issue was that “Student is not a behavior
problem and that Student is a fast runner compared to other students in his eight
student workplace readiness program class.” Decision at 24. The AHO explained
that:
There is no evidence as to Student’s capabilities versus what is
expected of students in a physical education class for
non-disabled students, no evidence as to what accommodations
might be needed to be made to allow Student to benefit from
attendance at such a class, no evidence as to whether those
accommodations are reasonable and/or achievable, and no
evidence as to the potential cost of integrating Student into such
a class.
Decision at 24-25. Nor is such evidence presented on appeal. In fact, Plaintiffs’
argument is limited to a single paragraph in their Opening Brief, which asserts that
Student “did not have a physical disability and he was not a behavior problem. The
law is clear that this is not permitted. Therefore, he was denied the least restrictive
18

placement as alleged in the hearing complaint.” Opening Br. at 5. On this record,
Plaintiffs fail to demonstrate that they raised this issue with the Home School during
the development of the IEP or to establish a denial of FAPE.
As discussed above, there is a preference for mainstreaming in the least
restrictive environment, but placement must also meet the specific needs of each
child. See 20 U.S.C. § 1412(a)(5)(A); County of San Diego v. Cal. Special Educ.
Hearing Office, 93 F.3d 1458, 1468 (9th Cir. 1996). The decision below
specifically addressed the Rachel H. factors in considering the appropriate class
placement. See Decision at 24.
Here, Student’s past performance evidenced a need for placement in special
education courses, and Plaintiffs failed to raise the issue of PE placement with the
Home School. Notably, there is no evidence that Plaintiffs raised any concerns
about PE or requested that Student take PE at the October 29, 2013 IEP meeting.
As the AHO explained, if Plaintiffs “worked with the IEP team and [t]ried to lay the
proper groundwork for determining whether, and/or how, to have Student attend
physical education classes with non-disabled students, Home School indicated it
would be considered.” Decision at 25. Plaintiffs, however, failed to do so, and
cannot now claim a substantive denial of a FAPE, under the circumstances. In sum,

19

the Court determines that the IEP placed student in the least restrictive environment
to meet his IEP goals, and the DOE did not deny Student a FAPE.
III.

Plaintiffs’ Request for Reimbursement is Denied
Plaintiffs seek reimbursement for Student’s private tutoring expenses. This

remedy, however, is only permissible if the Court concludes that there was a denial
of FAPE. “Parents ‘are entitled to reimbursement only if a federal court concludes
both that the public placement violated IDEA and the private school placement was
proper under the Act.’” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009)
(quoting Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993)) (emphasis
in original). Because the Court concludes that there was no denial of FAPE,
Plaintiffs are not entitled to reimbursement.
CONCLUSION
For the foregoing reasons, the April 17, 2014 decision is hereby AFFIRMED.
IT IS SO ORDERED.
DATED: June 19, 2015 at Honolulu, Hawai‘i.

__________________________________________________________________
AG, individually and on behalf of her minor child, M.G. v. State of Hawaii, Department of Education, et al.;
Civil No. 14-00234 DKW-RLP; ORDER AFFIRMING THE APRIL 17, 2014 DECISION OF THE
ADMINISTRATIVE HEARINGS OFFICER

20