Department of Education, State of Hawai'i v. W. et al

Filing 27

ORDER VACATING IN PART, REVERSING IN PART, AND AFFIRMING IN PART THE HEARINGS OFFICERS FEBRUARY 10, 2016 FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION. Signed by JUDGE LESLIE E. KOBAYASHI on 12/29/2016. - The Court HEREBY VACATES IN PART, REVERSES IN PART, AND AFFIRMS IN PART the Hearings Offices February 10, 2016 Findings of Fact, Conclusions of Law and Decision. The Court GRANTS the DOEs appeal insofar as the Court: VACATES the portion of the Decision addressing th e Child Find issue; REVERSES the portion of the Decision ruling that the DOE's failure "to conduct needed behavioral assessments" denied Student a FAPE; and REVERSES the reimbursement award. This Court DENIES Petitioners' cross-a ppeal and AFFIRMS the Decision in all other respects. There being no remaining issues in this case, the Court DIRECTS the Clerk's Office to close this case and enter judgment in favor of the DOE on January 19, 2017, unless one of th e parties files a motion for reconsideration of this Order by January 17, 2017. (ecs, )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 HAWAII
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,

)
)
)
)
Plaintiff,
)
vs.
)
)
LEO W., by and through his
)
)
Parent VERONICA W.,
)
)
Defendants.
_____________________________ )

CIVIL 16-00106 LEK-BMK

ORDER VACATING IN PART, REVERSING IN PART, AND AFFIRMING
IN PART THE HEARINGS OFFICER’S FEBRUARY 10, 2016
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
On March 9, 2016, Plaintiff Department of Education,
State of Hawai`i (“Plaintiff,” “the DOE” or “Respondent”), filed
an appeal of the Administrative Hearings Officer’s (“Hearings
Officer”) February 10, 2016 Findings of Fact, Conclusions of Law
and Decision (“Decision”).1

[Complaint (dkt. no. 1).]

filed its Opening Brief on July 8, 2016.

Plaintiff

[Dkt. no. 14.]

Defendants Leo W. (“Student”), by and through his Parent,
Veronica W. (“Mother,” collectively “Defendants” or
“Petitioners”), filed their Answering Brief on August 8, 2016,
and the DOE filed its Reply Brief on August 23, 2016.
nos. 16, 18.]

The Court heard oral argument in this matter on

October 31, 2016.

1

[Dkt.

After careful consideration of the briefs,

The Decision is part of the Administrative Record on
Appeal, transmitted on October 12, 2015 (“AR”), at 117-47.

record, arguments of counsel, and relevant legal authority, this
Court HEREBY VACATES the portion of the Decision addressing Child
Find, REVERSES the Hearings Officer’s ruling that the DOE’s
failure “to conduct needed behavioral assessments” denied Student
a free appropriate public education (“FAPE”), REVERSES the
reimbursement award, and AFFIRMS the Decision in all other
respects.
BACKGROUND
At the time of the Decision, Student was six years old
and was eligible for special education and related services under
the category of developmental delay.

He has also been diagnosed

with Autism Spectrum Disorder (“ASD”) and attention-deficit/
hyperactivity disorder (“ADHD”).
I.

[Decision at 2-3, 18.]

Attendance at the Home School
Student began attending the Home School in June 2013,

when he was approximately three-and-a-half years old.

He was

enrolled in the school’s Head Start preschool program.

Head

Start includes students from economically disadvantaged families.
At the Home School, ten percent of the students in its Head Start
program are special education students.

Head Start is an

inclusion program in a fully self-contained classroom.

[Id. at

3, 18.]
Student attended the Home School’s preschool for the
2013-14 and 2014-15 school years.
2

His first individualized

education program (“IEP”) was developed in the 2013-14 school
year.

[Id. at 18.]

Student’s special education teacher for that

year (“2013-14 SPED Teacher”) did not testify before the Hearings
Officer.

During that school year, the 2013-14 SPED Teacher

created a behavioral support plan (“BSP”) for Student.

Thus, the

Hearings Officer found that Student’s January 14, 2014 IEP
(“1/14/14 IEP”) and April 4, 2014 IEP (“4/4/14 IEP”) “had a BSP
as a supplemental aid when appropriate.”2

[Id. at 3.]

Student’s

classroom for the 2013-14 school year was a fully self-contained
classroom, and Mother testified that Student did well in the
class between February and May 2014.

[Id.]

Student’s May 22, 2014 IEP (“5/22/14 IEP”) did not
include a BSP, but it did offer Student extended school year
(“ESY”) services during Summer 2014.

At the due process hearing,

the principal of the Private School,3 testified that the 5/22/14

2

The 1/14/14 IEP lists a BSP as a supplementary aid from
February 18, 2014 to November 18, 2014 “when appropriate.” [AR,
Respondent’s Exh. 6 at 74.] However, it also states that a BSP
“may be developed with the support of the counselor upon parental
consent and classroom observation.” [Id.] The 4/4/14 IEP
includes the same language. [AR, Respondent’s Exh. 7 at 87.]
3

The Court will refer to the facility that Student attended
after the Home School as “the Private School” for the sake of
simplicity. However, the Court notes the Hearings Officer found
that, at the time of the Decision, the facility was “not licensed
as a school, but [was] in the process of obtaining a license and
accreditation.” [Decision at 10.]
The Private School Principal was the owner of the facility
until it became a nonprofit organization. There is now a board
(continued...)
3

IEP’s present levels of education performance (“PLEPs”) section
regarding Student’s social and emotional skills was consistent
with the Private School’s current observations of Student.
at 4.]

[Id.

The Parent Concerns section of the 5/22/14 IEP stated

that Student: lacked social skills, including playing
appropriately with other children; had “depressive spells” that
could last over a week; had violent tantrums at home and had a
hard time calming himself down.

[Id. at 5.]

It also noted that

the family was receiving parent-child therapy, which seemed to be
helping, and that Mother had noticed that Student’s behavior and
attitude had improved since he started school.

[Id.]

Student’s

last IEP before the May 18, 2015 IEP (“5/18/15 IEP”) – which is
at issue in this case – was the October 21, 2014 IEP (“10/21/14
IEP”).

The 10/21/14 IEP did not include a BSP, but did provide

for ESY services.

[Id.]

Student’s special education teacher during the 2014-15
school year (“2014-15 SPED Teacher”) testified at the due process
hearing.

Student’s preschool classroom during the 2014-15 school

year had eighteen students, with Student being one of four SPED
students.

The 2014-15 SPED Teacher testified that the class was

highly structured and that the students were expected to follow

3

(...continued)
of directors that “make[s] the overall decisions” for the school,
while the principal makes decisions regarding daily operations.
[AR, Trans. of 12/16/15 Proceedings (“12/16/15 Trans.”) at 1011.]
4

class rules and schedules, and to perform academic and
developmentally appropriate activities.

The 2014-15 SPED Teacher

testified that, by the end of the year, Student was at the same
level, academically, as the general education students, and he
was ready for kindergarten.

She also testified that he had made

progress in his interactions with peers, and his play was
appropriate.

According to the 2014-15 SPED Teacher, Student’s

behaviors were typical for a five-year-old.
but he did not have tantrums.

He did throw things,

[Id. at 5-6.]

The DOE district

preschool resource teacher (“DRT”) testified that Student’s
behavior at the Home School was typical of other preschool
children and that Student was not aggressive.

However, the DRT

last observed Student in the classroom in October 2014 and on the
playground in 2015.

Further, the DRT was there to observe the

class in general, not specifically to observe Student.

[Id. at

6-7.]
II.

5/18/15 IEP
Student’s 5/18/15 IEP provided the following: 1765

minutes per week of special education from May 20, 2015 to
July 28, 2015 in a general/special education setting; 300 minutes
per week from July 29, 2015 to May 14, 2016 in a general
education setting; 180 minutes per quarter of speech-language
therapy; daily transportation services; and preferential seating
as a supplemental aid.

[Id. at 12-13.]

5

The 300 minutes of

special education services that Student was to receive in an
inclusion setting during kindergarten was for language arts and
math.

The 2014-15 SPED Teacher testified that this was

appropriate based on Student’s level of functioning.
13.]

[Id. at

The 5/18/15 IEP provided that Student would be with general

education peers from 8:00 a.m. to 2:00 p.m. every day except
Wednesday, when it would be from 8:00 a.m. to 1:00 p.m.

He would

be with only special education peers during the other times
during the school day.

[Id. at 16.]

According to the Decision, Mother asked the IEP team
why the BSP was being removed, and she testified that the 2014-15
SPED Teacher told her that a BSP was not necessary because
Student would be in an inclusion classroom.

The 2014-15 SPED

Teacher testified that behavioral modifications were done for the
entire class.

[Id. at 13.]

Mother testified that she expressed

her concerns that the 5/18/15 IEP did not include any behavioral
goals and that Student needed a behavioral assessment.

According

to Mother, the team heard her concerns, but did not act upon
them.

[Id. at 16.]
The 5/18/15 IEP stated that Student did not qualify for

ESY services.

The IEP team considered four factors in deciding

that he was not eligible: “the nature and severity of the
disabling condition, Student’s ability to be self-sufficient,
regression, and recoupment.”

[Id. at 13.]

6

The 2014-15 SPED

Teacher told the IEP team that her data about Student did not
show that ESY services were necessary because he was performing
at his grade level and did not show any problems with recoupment
or regression.

For example, she testified that, after a three-

week break during the 2014-15 year, Student returned to school
ready to learn, but she did not address whether he had regressed.
According to the 2014-15 SPED Teacher, Mother did not oppose the
finding that Student was ineligible for ESY services.

The Home

School Vice-Principal testified that the entire team agreed that
Student did not need ESY services, but Mother testified that she
did express her concern that Student would regress without ESY
services.

[Id. at 13-14.]
In the 5/18/15 IEP, the social-emotional section of the

PLEPs stated, inter alia, that Student was comfortable in the
classroom, dealt with transitions well, followed class rules and
routines, participated in activities that he did not choose, and
got along well with his peers.
emotional needs at the time.

It stated that he had no social-

[Id. at 14-15.]

The 5/18/15 IEP

did not identify any social or behavioral goals.

[Id. at 16.]

Mother testified that she disagreed with the PLEPs at
the May 18, 2015 IEP team meeting, and she told the team that
Student’s behaviors had gotten worse during the 2014-15 school
year.

The DOE representatives on the team responded that the

problematic behaviors were only occurring at home, not at school.

7

Mother also disagreed with the lack of behavioral goals, and she
asked for a behavioral assessment, but the team did not act on
her concerns and requests, other than mentioning the concerns in
the Family/Medical section of the 5/18/15 IEP.

[Id. at 15-16.]

At the due process hearing, the Private School Principal
disagreed with the social-emotional PLEPs in the 5/18/15 IEP.
Mother testified that Student did misbehave at the Home School
and needed redirection, but she admitted that he needed constant
supervision at home.

[Id. at 15.]

The 2014-15 SPED Teacher

confirmed that Mother had previously reported “Student was
defiant, aggressive, not listening, and depressive at home.”
[Id.]

The 2014-15 SPED Teacher also testified that Student’s in-

school behaviors discussed at the May 18, 2015 IEP team meeting
were typical of a student his age.

According to the 2014-15 SPED

Teacher, Mother saw a draft of the 5/18/15 IEP before the team
meeting, but Mother did not question the social-emotional PLEPs
at the meeting.

[Id. at 16.]

The Hearings Officer found that the social-emotional
PLEPs in the 5/18/15 IEP were inconsistent with the testimony of

8

DOE district psychologist Abby Royston, Ph.D.,4 and J.F.’s
report.5

[Id.]
The May 18, 2015 prior written notice (“5/18/15 PWN”)

stated that the DOE proposed to modify Student’s program such
that Student would remain in his inclusion preschool classroom
for the remainder of the school year and move to a general
education kindergarten classroom for the 2015-16 school year.
The 5/18/15 PWN stated that the specialized instruction that
Student needed could be provided in the general education
setting.

[Id. at 16-17.]

III. Move from the Home School to the Private School
Student last attended the Home School in May or
June 2015.

Mother disagreed that Student had the skills the DOE

representatives attributed to him when he left the Home School.
According to Mother, Student was only happy at the Home School
because they “did not make him do anything, and let Student be in

4

Dr. Royston is the lead DOE psychologist for the Windward
District. [AR, Trans. of 12/17/15 Proceedings (“12/17/15
Trans.”) at 337.]
5

The Hearings Officer’s reference to “the report by
psychologist J.F. regarding Student’s emotional and social
behaviors” presumably refers to Janet Fitzgerald, Ph.D.
[Decision at 16.] Dr. Fitzgerald was one of Petitioners’
witnesses at the due process hearing, but there is no report by
Dr. Fitzgerald among Petitioners’ exhibits. The Hearings Officer
may have been referring to Dr. Fitzgerald’s testimony or to a
one-page letter by Dr. Fitzgerald, dated October 22, 2015, that
was among Petitioners’ exhibits. [AR, Petitioners’ Exh. 1 at
78.]
9

control.”

[Id. at 6.]

For example, if Student was upset, the

2014-15 SPED Teacher allowed him to withdraw from the activity he
did not want to do.

Mother also testified that the goals the

Home School set for Student were not challenging enough for him.
[Id.]

The Hearings Officer found that Mother pulled Student out

of the Home School “as he was not being provided proper
supports.”

[Id. at 9.]

The Private School Principal testified

that Student needed more than 300 minutes per week of special
education services and that Student needed ESY services.

[Id. at

14.]
Because the 5/18/15 IEP denied Student ESY services,
Mother placed him in the Summer Fun program, at the DOE’s
suggestion.

[Id.]

The Hearings Officer found that, “[a]ccording

to Mother, the Summer Fun program was administered by college
students who were not trained.
and Student was isolated.”

The program was not structured,

[Id. at 9.]

In July 2015, Mother applied to enroll Student at the
Private School, and he began attending the Private School on
August 24, 2015.

The Hearings Officer found that the Private

School had approximately twenty-five students, from age five to
age seventeen.

The other students in Student’s age group were: a

five-year-old, a seven-year-old, two eight-year-olds, and a nineyear-old.

[Id. at 10.]

The Private School “is located in

several different rooms within a shopping center,” but “there is

10

a grassy area and a nearby park that the [Private School]
students use at times during the daily recess.”

[Id. at 11.]

The Hearings Officer found that “[m]ost of the students
[at the Private School] do not have as much behavioral problems
as Student.”

[Id. at 10.]

The Private School had Student’s

parents hire a board-certified behavior analyst (“BCBA”) to help
the school deal with his behavior.
the due process hearing.

The BCBA did not testify at

The Private School has a Functional

Behavioral Assessment/Behavioral Support Plan (“FBA/BSP”) for
Student that was created by the BCBA.

The Private School does

not keep data regarding Student’s behaviors.

The Private School

Principal testified that she spoke often with Student’s BCBA and
that the BCBA provided on-going training to other Private School
staff who worked with Student.

[Id.]

At the Private School, Student would throw heavy and
sharp objects, “wreck” a game if he was losing, had to be
restrained, knocked over desks, kicked things, kicked his
teacher, damaged property, and would sometimes lie on the floor
to avoid work.

[Id. at 11.]

Student would scare the other

students and, although he always had a 1:1 aide, sometimes he
needed two aides.

At the time of the Decision, Student left the

Private School after lunch every day because that was all he
could handle.

The Private School Principal testified that

Student was “okay with preferred activities, but . . . not okay

11

with non-preferred activities.”

[Id.]

According to Mother, when

the Private School started trying to use applied behavioral
analysis techniques, Student had to be restrained more.

However,

the Private School Principal testified that Student’s behavior
had improved within the last two months prior to the hearing.
[Id.]

According to the Private School Principal, in late July or

early August 2015, she spoke to a DOE office worker – whom the
Private School Principal could not identify – who said Student
had behavioral problems in the Home School.

The Private School

Principal testified that this was contrary to the Home School’s
reports.

[Id.]

Mother admitted that the Private School

struggled with Student’s behaviors and that sometimes the school
had to isolate him.
IV.

[Id. at 11-12.]

Relevant Assessments
A.

Tyson Report
Mother asked the DOE in August and September 2013 to

perform a comprehensive assessment of Student.

The DOE did so

around that time, but the Hearings Officer noted that there was
no evidence of a more recent comprehensive assessment.

Mother

later asked private psychologist Karen Tyson, Psy.D., to perform
the assessment.

[Id. at 7.]

Dr. Tyson assessed Student in March

and April 2015 and prepared a Neuropsychological Evaluation dated
June 1, 2015 (“Tyson Report”).

Relying heavily on the

observations of Student’s parents, Dr. Tyson “diagnosed Student
12

with ASD, without intellectual impairment, without language
impairment requiring level 1 support,” and made recommendations,
including “a structured academic environment, social skills
groups, consistent routine, reminders, extended time, monitored
emotions, and re-evaluation.”
Exh. 18 at 185-86).]

[Id. (citing AR, Respondent’s

Dr. Tyson acknowledged that, while Mother’s

autism spectrum rating scales strongly supported a diagnosis of
ASD, the 2014-15 SPED Teacher’s reports were inconsistent with
Mother’s ratings.

The Hearings Officer acknowledged that

Dr. Tyson did not testify at the due process hearing and that the
IEP team did not have the Tyson Report when it formulated the
5/18/15 IEP.

[Id. at 7-8.]

After Mother received the Tyson Report, she requested
an IEP team meeting to discuss it.

A meeting was held, but the

IEP team did not discuss all of the Tyson Report, and the DOE
declined to change the 5/18/15 IEP.

The DOE issued a June 16,

2015 prior written notice (“6/16/15 PWN”) which stated that the
DOE would conduct an observation but, although the DOE considered
the issue, it determined that an adaptive behavior assessment was
not necessary because Student was “‘independent in self-care
skills.’”

[Id. at 17 (quoting AR, Respondent’s Exh. 2, at 31).]

Mother testified that she wanted the adaptive behavior assessment
because of Student’s past social and behavioral problems.

At

some point thereafter, Mother asked for another IEP team meeting

13

because she felt Student needed additional supports.
was held on December 10, 2015.

A meeting

Mother testified that Student was

scheduled to return to the Home School on January 6, 2016.

[Id.

at 17-18.]
B.

Dr. Royston’s Testimony
Dr. Royston testified at the due process hearing as an

expert in clinical psychology and school psychology.

Dr. Royston

was one of the co-signors on Student’s October 22, 2013 Adaptive
and Emotional/Behavioral Assessment, which found that Student met
the criteria for ADHD, with a predominantly hyperactive/impulsive
presentation, mild to moderate severity.

At the time of this

assessment, Student was three years and ten months old, and he
exhibited behaviors that were not consistent with an ASD
diagnosis.

However, Dr. Royston acknowledged that Student’s

autism test results may have been skewed by the fact that he was
given a version of the test that was not age-appropriate.
Dr. Royston testified that, ultimately, the diagnosis does not
matter as much as the child’s skill levels and observed behaviors
that impact his education.

Prior to the due process hearing,

Dr. Royston reviewed Student’s records, including the Tyson
Report.

According to Dr. Royston, Dr. Tyson ignored the fact

that the inconsistency between Mother’s ratings and the 2014-15
SPED Teacher’s reports may have indicated that Student behaved
differently at home than he did at school.

14

[Id. at 8-9.]

Dr. Royston observed Student at the Private School on
October 2 and 28, 2015.

However, because of the other students’

privacy, Dr. Royston had to conduct the observations through
cameras and a tablet.

Dr. Royston “opined that, based on

Student’s destructive conduct, the [Private School] was a harmful
environment and not appropriate for Student.”
C.

[Id. at 9.]

Other Testimony and Reports
Student started working with private psychologist

Janet Fitzgerald, Psy.D., in late August 2015.

According to

Dr. Fitzgerald, Student is “a high-functioning child with
autism,” and Student is “a perfectionist” with “an intense
negativity.”

[Id. at 12.]

This leads to self-esteem problems,

undesired behaviors, and refusal to do things that he is afraid
he will fail at.

Dr. Fitzgerald endorsed Dr. Tyson’s

recommendations, and Dr. Fitzgerald testified that Student’s
emotional and social issues impair his academic progress.
(citing AR, Petitioners’ Exh. 1, at page 78).]

[Id.

Student’s primary

care physician – who Student began seeing in January 2015 – did
not testify at the due process hearing, but submitted a
November 3, 2015 letter supporting Dr. Tyson’s diagnoses and
recommendations.

[Id. (citing AR, Petitioners’ Exh. 1, at page

68).]

15

V.

The Decision
Petitioners filed their Complaint before the State of

Hawai`i Office of Administrative Hearings, Department of Commerce
and Consumer Affairs (“Due Process Complaint”), on July 24, 2015.
[AR at 2-8.]

The Hearings Officer summarized the issues raised

in the Due Process Complaint as follows:
A.

Whether the DOE failed to complete and
consider needed assessments, and whether
Student needed a behavioral evaluation;

B.

Whether the DOE denied Student a FAPE by
failing to provide Student with ESY services;
whether the IEP team failed to
discuss/consider ESY eligibility
appropriately; and whether Student was placed
in the (least restrictive environment) during
summer 2015 ESY;

C.

Whether Student’s May 18, 2015 IEP denied
Student a FAPE by failing to offer Student
appropriate special education services, or
supplemental aids or modification to address
Student’s needs, including Student’s social
deficits; and

D.

Whether Student’s May 18, 2015 IEP denied
Student a FAPE by failing to allow parents
meaningful participation.

[Decision at 18-19.]

Petitioners requested, inter alia,

payment/reimbursement for Student’s educational services at the
Private School, and other related services.

Thus, the

appropriateness of the placement at the Private School was also
at issue.

[Id. at 19.]
The Hearings Officer concluded that Petitioners’ claim

that the DOE failed to conduct necessary assessments required
16

consideration of the IDEA’s “Child Find” provision, 20 U.S.C.
§ 1412(a)(3)(A).

[Id.]

The Hearings Officer found that the DOE

failed to conduct necessary behavioral assessments, and concluded
that the 5/18/15 IEP failed to offer Student a FAPE.
22.]

[Id. at

Based on the same analysis as the Child Find issue, the

Hearings Officer concluded that, because the 5/18/15 IEP failed
to provide for the necessary evaluation of Student’s behavioral,
social, and emotional deficits, the IEP failed to offer Student a
FAPE because it did not include the services, supplemental aides,
program modifications, goals, and objectives that were
appropriate in light of his need in those areas.

[Id. at 25-29.]

However, the Hearings Officer rejected Petitioners’ argument that
the 5/18/15 IEP should have provided Student with more than 300
minutes per week of special education.

The Hearings Officer

concluded that this amount was appropriate in light of Student’s
intelligence, level of functioning, and abilities.

[Id. at 29.]

The Hearings Officer concluded that the IEP team did
not deny Student a FAPE when it decided that he was not eligible
for ESY services during the summer of 2015.

[Id. at 22-24.]

The

Hearings Officer also rejected Petitioners’ argument that
Student’s parents were denied meaningful participation in the
formulation of the 5/18/15 IEP.

[Id. at 30.]

Finally, the Hearings Officer concluded that Student’s
placement at the Private School was appropriate and awarded

17

Petitioners payment/reimbursement of Student’s educational and
related services at the Private School from August 24, 2015 to
Student’s return to the Home School in January 2016.

[Id. at 32-

33.]
VI.

The Instant Case
This appeal followed.

March 9, 2016.

The DOE filed its Complaint on

The DOE alleges that: 1) the Hearings Officer did

not have jurisdiction over the Child Find issue because
Petitioners did not raise it in the Due Process Complaint;
2) even if the Hearings Officer properly considered the issue,
the DOE has satisfied its Child Find obligations in this case;
3) the Hearings Officer erred when he concluded that the DOE’s
failure to address Student’s behavioral and social issues denied
Student a FAPE because the Hearings Officer failed to evaluate
the 5/18/15 IEP based on the information that was available at
the time the IEP was created; 4) the DOE was not required to
conduct a behavioral assessment in this case because Student’s
behavioral problems at home were not affecting his educational
progress at the Home School; and 5) even if this Court affirms
the Hearings Officer’s conclusion that the 5/18/15 IEP failed to
offer Student a FAPE, it should vacate the award of reimbursement
because the Private School is not an appropriate placement for
reimbursement purposes.

18

Petitioners filed an Answer and Counterclaim on
April 8, 2016, and the DOE filed an answer to the Counterclaim on
April 15, 2016.

[Dkt. nos. 8, 9.]

Petitioners’ Counterclaim

alleges, in pertinent part:
The hearings officer found that Defendants
did not show that the May 18, 2015 IEP
inappropriately denied Student ESY services;
failed to discuss/consider ESY eligibility
appropriately; failed to offer Student appropriate
special education services, as the 300 minutes per
week of special education services offered were
sufficient, and failed to allow parent meaningful
participation in the development of Student’s IEP.
These findings and or conclusions were in error
and Defendant’s [sic] were aggrieved by same.
[Answer and Counterclaim at ¶ 9.]

Because this Court construes

the DOE’s Complaint as a notice of appeal, see I.T. ex rel.
Renee T. v. Dep’t of Educ., Civil No. 11-00676 LEK-KSC, 2013 WL
3872787, at *2 (D. Hawai`i July 24, 2013), it construes
Petitioners’ Counterclaim as a notice of cross-appeal.
STANDARD
This Court has examined what constitutes a FAPE, and
what is required in reviewing an administrative decision under
the IDEA:
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;
19

(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 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. 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)).[6] The amount of
deference accorded is subject to the court’s
discretion. J.W. [ex rel. J.E.W. v. Fresno

6

Rowley was superseded by statute on other grounds, as
recognized in N.B. v. Hellgate Elementary School District, 541
F.3d 1202, 1213 n.3 (9th Cir. 2008).
20

Unified Sch. Dist.], 626 F.3d [431,] 438 [(9th
Cir. 2010)] (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. 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)) [sic]. 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.
N.B. v. Hawai`i, Civil No. 13-00439 LEK-BMK, 2014 WL 3663452, at
*2-3 (D. Hawai`i July 21, 2014) (some alterations in N.B.).
Ninth Circuit has stated:
When analyzing whether an agency provided a
student a FAPE, we conduct a two-part inquiry.
First, we consider whether “the State complied
with the procedures set forth in the Act.”
Amanda J. [ex rel. Annette J. v. Clark Cty. Sch.
Dist.], 267 F.3d [877,] 890 [(9th Cir. 2001)]
(quoting [Bd. of Educ. v.] Rowley, 458 U.S. [176,]
206-07, 102 S. Ct. 3034) (internal quotation marks
omitted). Second, we must determine whether the
IEP is “rationally calculated to enable the child
to receive educational benefits.” Id. A state
must meet both requirements to comply with the
obligations of the IDEA. Rowley, 458 U.S. at 207,
102 S. Ct. 3034.
Harmless procedural errors do not constitute
a denial of FAPE. L.M. v. Capistrano Unified Sch.
Dist., 556 F.3d 900, 910 (9th Cir. 2008).
“‘However, procedural inadequacies that result in
the loss of educational opportunity, or seriously
21

The

infringe the parents’ opportunity to participate
in the IEP formulation process, clearly result in
the denial of FAPE.’” Shapiro [ex rel. Shapiro v.
Paradise Valley Unified Sch. Dist.], 317 F.3d
[1072,] 1079 [(9th Cir. 2003)] (quoting W.G. v.
Bd. of Trs. of Target Range Sch. Dist. No. 23, 960
F.2d 1479, 1484 (9th Cir. 1992)).[7] Where a
court identifies a procedural violation that
denied a student a FAPE, the court need not
address the second prong. Id.
Doug C. v. Haw. Dep’t of Educ., 720 F.3d 1038, 1043 (9th Cir.
2013) (footnote omitted).8

As to the second part of the inquiry,

the Ninth Circuit has stated:
The School District must offer the Student a
placement that is tailored to the Student’s unique
needs. See Gregory K. [v. Longview Sch. Dist.],

7

Shapiro and W.G. were superseded by statute on other
grounds, as recognized in M.L. v. Federal Way School District,
394 F.3d 634, 653 (9th Cir. 2005).
8

The Ninth Circuit noted:
Hawaii has fully implemented the purposes,
guarantees, and protections of the IDEA into its
own regulatory structure. See Haw. Code R. §§ 860-1 to 8-60-84; see also § 8-60-1(b) (“This
chapter shall be construed as supplemental to, and
in the context of, the Individuals with
Disabilities Education Act . . . and other federal
laws and regulations relating to the provision of
a free appropriate public education to a student
with a disability.”). Hawaii’s regulations mirror
the language in the IDEA regarding the IDEA’s
purposes, the guarantee of a FAPE, and the
requirement of parent participation. Compare Haw.
[Admin.] R. § 8-60-1 (purposes), with 34 C.F.R.
§ 300.1 (same); Haw. [Admin.] R. § 8-60-3
(guarantee of FAPE), with 34 C.F.R. § 300.101
(same); Haw. [Admin.] R. § 8-60-46 (parent
participation), with 34 C.F.R. § 300.322 (same).

Doug C., 720 F.3d at 1043 n.4 (alterations in Doug C.).
22

811 F.2d [1307,] 1314 [(9th Cir. 1987)].
Additionally, the placement must be in the least
restrictive environment — in other words, the
Student must be placed with non-disabled peers “to
the maximum extent appropriate.” 34 C.F.R.
§ 300.114; 20 U.S.C. § 1412(a)(5)(A). . . .
A.R. ex rel. Reese v. Santa Monica Malibu Sch. Dist., 636 F.
App’x 385, 386 (9th Cir. 2016).
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).
N.B. v. Hawai`i, 2014 WL 3663452, at *3.

“However, the ultimate

determination of whether an IEP was appropriate 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).
DISCUSSION
I.

Preliminary Issues
A.

Scope of Review
At the outset, this Court must address the DOE’s

argument that it should disregard Petitioners’ cross-appeal
because they failed to file a timely opening brief in support of
the cross-appeal.

On May 9, 2016, the magistrate judge issued

the following briefing deadlines: “Opening Brief” – July 8, 2016;
“Opposition” – August 8, 2016; and “Reply” – August 23, 2016.
23

[Minutes, filed 5/9/16 (dkt. no. 12).]

Although not expressly

stated in the magistrate judge’s minutes, insofar as the
magistrate judge did not give separate deadlines for the DOE’s
appeal and Petitioners’ cross-appeal, the deadlines for both were
the same.

The DOE’s opening brief in support of their appeal and

Petitioners’ opening brief in support of their cross-appeal were
both due by July 8, 2016.
Petitioners did not file an opening brief in support of
their cross-appeal.

Instead, they presented arguments in support

of their cross-appeal within their Answering Brief, which they
filed on August 8, 2016.

To the extent that Petitioners’

Answering Brief also purports to be their opening brief in
support of their cross-appeal, Petitioners’ “opening brief” was
untimely.

Although it is within this Court’s discretion to

strike Petitioners’ “opening brief,” in the interests of justice,
this Court will consider it.

Accord Minutes, filed 10/12/16

(dkt. no. 25) (concluding that a brief continuance of the oral
argument because of the late transmittal of the administrative
record was in the interests of justice).
However, this Court will not consider Petitioners’
argument that Student requires certain aids, services, and/or
modifications that were not included in the 5/18/15 IEP.
Answering Brief at 7–9.

See

Petitioners’ Due Process Complaint did

argue:

24

Student needed the all [sic] or any of the
following supplemental aids and/or services and/or
modifications to this program, but did not get
them in his IEP:
structured socialization opportunities; parent
training; structured classroom environment; short
instructional periods with breaks; transition
supports; visual schedule; assistive technology fo
communication; FBA/BSP; Extra time for assignments
regarding in-class and/or homework; check for
understanding; repeat instructions; modified
testing environment; preferential seating;
chucking [sic] of assignments; multi-modality
instruction.
[AR at 4.]

But, Petitioners’ Counterclaim/cross-appeal did not

address this issue.

See Counterclaim at ¶ 9 (challenging the

Hearings Officer’s ruling that they did not show that the 5/18/15
IEP “failed to offer Student appropriate special education
services, as the 300 minutes per week of special education
services offered were sufficient”).

Thus, as to the specific

services, supports, aids, and modifications contained in the
5/18/15 IEP, the only issue properly before this Court in the
cross-appeal is Petitioners’ challenge to the amount of weekly
special education services.

This Court expresses no opinion

regarding the other items mentioned in that portion of Due
Process Complaint.
B.

Level of Deference
This Court has considered the Decision as a whole and

FINDS that there are portions of the Decision that do not
“evince[ a] careful, impartial consideration of all the evidence”

25

and do not “demonstrate[ a] sensitivity to the complexity of the
issues presented.”

See Cty. of San Diego, 93 F.3d at 1466.

In

particular, the Decision includes legal errors in the Child Find
analysis, and the Decision’s analysis of the need for a
behavioral reevaluation glosses over considerable factual
testimony that contradicts the Hearings Officer’s findings,
without a sufficient explanation.

These are significant factors

that undermine the Court’s confidence in the administrative
findings in those sections of the Decision.

The Court therefore

gives minimal deference to those sections of the Decision.

See

Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d 1004,
1009 (9th Cir. 2009) (“The court is free to determine
independently how much weight to give the state hearing officer’s
determinations.” (citations omitted)).

However, this Court has

recognized that:
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. See L.M., 556 F.3d at 908. . . .
Dep’t of Educ., Hawaii v. Z.Y. ex rel. R.Y., Civil No. 13-00322
LEK-RLP, 2013 WL 6210637, at *9 (D. Hawai`i Nov. 27, 2013) (some
26

alterations in Z.Y.).

With the exception of the two portions of

the Decision noted supra, the Decision is thorough and careful,
and this Court gives increased deference to the remainder of the
Decision.
This Court now turns to the merits of the appeals
before it.
II.

Child Find
The Hearings Officer stated that Petitioners’

allegation that the DOE failed to conduct necessary behavioral
evaluations required consideration of the IDEA’s Child Find
provisions.

[Decision at 19.]

The DOE argues that the Hearings

Officer erred in addressing the Child Find issue because
Petitioners did not raise it in their Due Process Complaint, i.e.
they did not exhaust their administrative remedies at to that
issue.

This Court has stated:
As a general rule, arguments not raised at an
administrative hearing cannot be raised for the
first time on appeal to the district court. The
Ninth Circuit applied this rule to IDEA appeals in
Robb v. Bethel School District No. 403, where it
held that, “when a plaintiff has alleged injuries
that could be redressed to any degree by the
IDEA’s administrative procedures and remedies,
exhaustion of those remedies is required.” 308
F.3d 1047, 1048 (9th Cir. 2002).[9] Exhaustion

9

Robb was overruled by Payne v. Peninsula School District,
653 F.3d 863 (9th Cir. 2011), which was overruled on other
grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).
However, in Payne the Ninth Circuit merely “‘clarified that the
IDEA’s exhaustion provision applies only in cases where the
(continued...)
27

may be avoided, however, if “it would be futile or
offer inadequate relief, or if the agency has
adopted a policy or pursued a practice of general
applicability that is contrary to the law.” N.D.
v. Hawaii Dep’t of Educ., 600 F.3d 1104, 1110 (9th
Cir. 2010) (citations and internal quotation marks
omitted). None of these exceptions apply in this
case.
The Ninth Circuit has also held that review
in IDEA cases is specifically limited to the
issues raised in the administrative complaint.
Cnty. of San Diego v. Cal. Special Educ. Hearing
Office, 93 F.3d 1458, 1465 (9th Cir. 1996) (“The
scope of the administrative hearing mandated by
[former] section 1415(b)(2) is limited to the
‘complaint’ raised to obtain the hearing.”). 20
U.S.C. § 1415 codified this holding, providing
that “[t]he party requesting the due process
hearing shall not be allowed to raise issues at
the due process hearing that were not raised in
the notice filed under subsection (b)(7), unless
the other party agrees otherwise.”
§ 1415(f)(3)(B).
James M. ex rel. Sherry M. v. Hawai`i, 803 F. Supp. 2d 1150,
1164–65 (D. Haw. 2011) (alterations in James M.) (footnote
omitted); see also J.W., 626 F.3d at 451 (“This Court lacks
subject matter jurisdiction over claims Student failed to raise
in the relevant administrative procedure.”).
In the instant case, Petitioners’ Due Process Complaint
did not argue that the DOE violated its Child Find obligations.
See AR at 2-8.

In addition, there is no evidence in the record

that the parties agreed that scope of the due process hearing

9

(...continued)
relief sought is available under the IDEA.’” M.M. v. Lafayette
Sch. Dist., 767 F.3d 842, 861 (9th Cir. 2014) (quoting Payne, 653
F.3d at 871).
28

would include a Child Find violation, in spite of the lack of
such an allegation in the Due Process Complaint.

The Hearings

Officer’s review was limited to the issues raised in the Due
Process Complaint, and therefore the Hearings Officer erred in
addressing the Child Find issue.

Because Petitioners failed to

raise the Child Find issue in the administrative proceedings,
this Court CONCLUDES that the Hearings Officer lacked
jurisdiction over the Child Find issue.
For the sake of completeness, even if Petitioners’ Due
Process Complaint could be construed as raising a Child Find
argument, this Court would reject it on the merits.

The IDEA

“Child Find” obligation is set forth in 20 U.S.C.
§ 1412(a)(3)(A), which states:
All children with disabilities residing in the
State, including children with disabilities who
are homeless children or are wards of the State
and children with disabilities attending private
schools, regardless of the severity of their
disabilities, and who are in need of special
education and related services, are identified,
located, and evaluated and a practical method is
developed and implemented to determine which
children with disabilities are currently receiving
needed special education and related services.
See also 34 C.F.R. § 300.111(a)(1), (c)(1).

The Ninth Circuit

has stated: “Child-find requires school districts to develop a
method to identify, locate, and evaluate students with
disabilities who are in need of special education services.”

29

Beauchamp v. Anaheim Union High Sch. Dist., 816 F.3d 1216, 1221
(9th Cir. 2016) (citing 20 U.S.C. § 1412(a)(3)(A)).
Haw. Admin. R. § 8-60-10 contains a similar
requirement.

It states, in pertinent part:

(a) General. The department shall annually
identify, locate, and evaluate, all students with
disabilities residing in the State, including
students with disabilities who are homeless
students or are wards of the State, and students
with disabilities attending private schools,
regardless of the severity of their disability,
and who are in need of special education and
related services.
. . . .
(d)

Referral.
(1) All referrals for the evaluation of a
student to determine eligibility as a student
with a disability under this chapter shall be
documented and shall be in accordance with
this section[.]

§ 8-60-10 (emphases added).
This district court has stated that “the child-find
duty is triggered when the state or [local educational agency]
has reason to suspect a disability, and reason to suspect that
special education services may be needed to address that
disability.”

Dep’t of Educ., State of Haw. v. Cari Rae S., 158

F. Supp. 2d 1190, 1194 (D. Hawai`i 2001) (internal quotation
marks and some alterations omitted).

However, the Ninth Circuit

has neither adopted this test nor articulated its own.

30

See G.M.

ex rel. G.M. v. Saddleback Valley Unified Sch. Dist., 583 F.
App’x 702, 704 n.1 (9th Cir. 2014) (discussing Cari Rae S.).
This district court has also rejected the argument that
the DOE’s child-find obligation extends to the recognition of
additional disabilities in a student who is already receiving
special education services.
[The mother] argues that DOE should have known
about [the student]’s mental status. She points
to 20 U.S.C. § 1412 and Department of Education,
State of Hawaii v. Cari Rae S., 158 F. Supp. 2d
1190 (D. Haw. 2001), for the proposition that the
DOE has an independent obligation to evaluate its
students. This argument is without merit. The
“Child Find” provision of § 1412 (which provides
in relevant part that “[a]ll children with
disabilities residing in the State, . . . and who
are in need of special education and related
services, are identified, located, and evaluated”)
requires the DOE to identify and evaluate those
students with disabilities, and Cari Rae S.
affirms the basic principle that the DOE has an
affirmative obligation to identify and evaluate
these students. [The student] has already been
identified and evaluated as a special education
student, however, and neither § 1412 nor
Cari Rae S. requires anything more from the DOE.
B.V. v. Dep’t of Educ., State of Haw., 451 F. Supp. 2d 1113, 1128
n.23 (D. Hawai`i 2005), aff’d sub nom. 514 F.3d 1384 (9th Cir.
2008).

This Court agrees with the reasoning in B.V. and, for the

same reasons, concludes that Petitioners’ allegation that the DOE
failed to conduct necessary behavioral assessments does not
allege a violation of the DOE’s Child Find obligations.
Thus, because of Petitioners’ failure to raise the
Child Find argument in their Due Process Complaint, this Court
31

GRANTS the DOE’s appeal as to the Child Find issue and VACATES
the Hearings Officer’s Decision as to that issue.
III. Failure to Perform Behavioral Assessment
Apart from the purported Child Find violation, the
Hearings Officer concluded that the 5/18/15 IEP failed to offer
Student a FAPE because: 1) the DOE should have conducted a
behavioral assessment prior to the development of the 5/18/15
IEP; and 2) because of the lack of a behavioral assessment, the
IEP does not address Student’s behavioral, social, and emotional
needs.

The DOE argues that these findings were erroneous and

should be reversed.
This Court’s analysis begins with the issue of whether
the DOE violated the IDEA by failing to reevaluate Student’s
behavioral needs.

Section 1414 states, in pertinent part:

(a) Evaluations, parental consent, and
reevaluations
. . . .
(2)

Reevaluations
(A)

In general

A local educational agency shall
ensure that a reevaluation of each
child with a disability is
conducted in accordance with
subsections (b) and (c)—
(i) if the local educational
agency determines that the
educational or related
services needs, including
improved academic achievement
32

and functional performance, of
the child warrant a
reevaluation; or
(ii) if the child’s parents or
teacher requests a reevaluation.
. . . .
(b)

Evaluation procedures
. . . .
(3)

Additional requirements

Each local educational agency shall ensure
that—
. . . .
(B) the child is assessed in all areas
of suspected disability[.]
20 U.S.C. § 1414(a), (b).

Pursuant to § 1414(a)(2)(A)(ii), the

DOE was required to conduct a reevaluation of Student’s
behavioral needs because Mother requested a reevaluation.
However, at both the May 18, 2015 IEP team meeting and the June
2015 meeting to discuss the Tyson Report, the DOE determined that
a reevaluation was not necessary.
The failure to conduct a reevaluation to ensure that a
student has been assessed in all areas of suspected disability
can constitute a procedural denial of FAPE.

Aaron P. v. Dep’t of

Educ., Hawaii, Civil. No. 10-00574 LEK-KSC, 2011 WL 5320994, at
*27 (D. Hawai`i Oct. 31, 2011).

The DOE’s failure to conduct a

behavioral reevaluation upon Mother’s request was a procedural

33

violation of the IDEA.

The issue before this Court is whether

the procedural violation resulted in a denial of FAPE.
Although not expressly stated in the Decision, the
Hearings Officer effectively concluded that the procedural
violation: 1) affected Student’s substantive rights – resulting
in a denial of FAPE – because the failure to conduct necessary
behavioral assessments resulted in the failure to offer him the
services and supports that his behavioral needs required; and
2) did not affect Mother’s substantive rights because there was
no infringement upon Mother’s opportunity to participate in the
IEP development process.

The DOE’s appeal challenges the first

ruling, and Petitioners’ cross-appeal challenges the second.
A.

Student’s Substantive Rights
The Hearings Officer found that a behavioral assessment

– i.e., a reevaluation of Student’s behavioral needs – was
necessary because Student had social and behavioral issues that
raised concerns when the team developed the 5/18/15 IEP.

In

making this finding, the Hearings Officer relied upon: the PLEPs
and the BSP included in Student’s IEPs for the 2013-14 school
year; the behavioral and social goals in the 10/21/14 IEP;
Mother’s testimony about Student’s behavior during the 2014-15
school year; Mother’s testimony and the Private School
Principal’s testimony about Student’s behavioral issues at the
Private School; and the Tyson Report.

34

[Decision at 19-22.]

1.

Snapshot Rule

First, an IEP must be evaluated in light of the
“snapshot” rule, “which instructs us to judge an IEP not in
hindsight, but instead based on the information that was
reasonably available to the parties at the time of the IEP.”

See

Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1187
(9th Cir. 2016).10

The snapshot rule “is not retrospective.”

J.W., 626 F.3d at 439.
Instead of asking whether the [IEP] was adequate
in light of the [Student’s] progress, the district
court should have asked the more pertinent
question of whether the [IEP] was appropriately
designed and implemented so as to convey [Student]
with a meaningful benefit. We do not judge an
[IEP] in hindsight; rather, we look to the [IEP’s]
goals and goal achieving methods at the time the
plan was implemented and ask whether these methods
were reasonably calculated to confer [Student]
with a meaningful benefit . . . In striving for
“appropriateness,” an IEP must take into account
what was, and what was not, objectively reasonable
when the snapshot was taken, that is at the time
the IEP was drafted.
Id. (alterations in J.W.) (citation omitted).

10

Baquerizo stated that the Ninth Circuit employs the
snapshot rule in evaluating whether a proposed educational
placement is appropriate. 826 F.3d at 1179. However, the
snapshot rule is not limited to challenges to placement. See,
e.g., L.J. v. Pittsburg Unified Sch. Dist., 835 F.3d 1168, 1175
(9th Cir. 2016) (applying the snapshot rule to a review of the
“appropriateness of a student’s eligibility”); B.M. ex rel. R.M.
v. Encinitas Union Sch. Dist., Civil No. 08cv412-L(JMA), 2013 WL
593417, at *6 (S.D. Cal. Feb. 14, 2013) (“Based on the ‘snapshot’
rule, it was not error for the ALJ, to find the postIEP [sic]
assessments and testimony of plaintiff’s experts to be irrelevant
in determining whether the IEP offer of services and placement
for plaintiff . . . was appropriate.”).
35

Thus, pursuant to the snapshot rule, this Court
CONCLUDES that the Hearings Officer erred in considering
Student’s behavioral issues at the Private School because that
information was not reasonably available to the IEP team when it
developed the 5/18/15 IEP.

Although the IEP team did not have

the Tyson Report at the time it developed the 5/18/15 IEP, the
team reconvened in June 2015 to discuss the Tyson Report and had
the opportunity to make adjustments to the IEP, but ultimately
decided not to make any changes.

Because the IEP team received

the Tyson Report and had the opportunity to decide whether to
make changes the 5/18/15 IEP in light of the report, this Court
FINDS that the Tyson Report is part of the snapshot of
information that was reasonably available to the IEP team.
2.

Evidence Properly Before the Hearings Officer

The Hearings Officer stated:
During th[e 2013-2014] school year, Student
exhibited behavioral issues, as evidenced by the
PLEPs, and the fact that the 2013-2014 special
education teacher had developed a BSP for Student.
Student’s January 14, 2014 and April 4, 2014 IEPs
provided Student with a BSP.
Although the subsequent IEPs show that a BSP
was not listed as a supplemental aid and support,
under the statutory language listed above, the DOE
has the duty to evaluate all students with
disabilities, regardless of the severity of their
disability.
[Decision at 19-20.]

The Hearings Officer also noted that “the

PLEPs in the January 14, 2014 and April 4, 2014 IEPs, written by

36

the DOE, show that Student had social and behavioral issues.”
[Id. at 20.]

The Hearings Officer also relied upon: Mother’s

testimony about Student’s behavioral and social problems during
the 2014-2015 school year, which the Hearings Officer found were
confirmed by the Tyson Report, the PLEPs in the 5/22/14 IEP, and
the Parent Concerns section in the 5/22/14 IEP; [id. at 21-22;]
and the fact that the behavioral and social goals in the 10/21/14
IEP “show[] that behaviors and social skills were areas of
concern,” [id. at 22].

Thus, the Hearings Officer concluded

that, because the DOE had a duty “to annually evaluate all
students with disabilities, regardless of the severity of their
disability,” the DOE’s “fail[ure] to conduct needed behavioral
assessments” was “denial of FAPE.”

[Id.]

Although not clearly stated, the Hearings Officer
apparently concluded that, because a behavioral reassessment was
“needed,” the DOE’s procedural violation in failing to conduct
the requested reevaluation affected Student’s substantive rights.
This Court must therefore determine whether the evidence that was
properly before the Hearings Officer supported the finding that a
behavioral assessment was necessary.
a.

BSP

Although Student’s 2013-14 SPED Teacher prepared a BSP
for him, both the 1/14/14 IEP and the 4/4/14 IEP stated that it
was to be used “when appropriate,” as opposed to other aids,

37

services, modifications, and supports which were to be employed
“[d]aily.”

[AR, Respondent’s Exh. 6 (1/14/14 IEP) at 74, Exh. 7

(4/4/14 IEP) at 87.]

Further, both the 1/14/14 IEP and the

4/4/14 IEP indicated that the BSP was optional, not a
requirement.

[AR, Respondent’s Exh. 6 at 74 (stating that a BSP

“may be developed with the support of the counselor upon parental
consent and classroom observation”); id., Exh. 7 at 87 (same).]
Further, neither Student’s 5/22/14 IEP nor his 10/21/14
IEP included a BSP.

[AR, Respondent’s Exh. 8 (5/22/14 IEP) at

100, Exh. 9 (10/21/14 IEP) at 115.]

The October 27, 2014 PWN

that followed the 10/21/14 IEP noted that Parent raised concerns
about Student’s behavior at home, and Parent requested a BSP.
The DOE rejected the request because “[c]urrently [Student] is
not displaying any of the behaviors of concern at school.”
Respondent’s Exh. 9 at 118.]

[AR,

Mother acknowledged that, during

the entire 2014-15 school year, Student did not have a BSP.
Student’s 2014-15 SPED Teacher and the Head Start Teacher told
her that a BSP was not necessary because all of the elements in
the BSP were provided to all students in the class.
Trans. at 133-34, 193.]

[12/16/15

Student’s 2014-15 SPED Teacher confirmed

that the IEP team determined the BSP which the 2013-14 SPED
Teacher created was not necessary for the 2014-15 school year.
[AR, Trans. of 12/18/15 Proceedings (“12/18/15 Trans.”) at 434.]
Thus, this Court CONCLUDES that the Hearings Officer erred in

38

finding that the existence of Student’s BSP for the 2013-14
school year was evidence that a behavioral reevaluation was
necessary at the time the IEP team developed the 5/18/15 IEP.
b.

PLEPs and Parental Concerns in Prior IEPs

The adaptive, emotional, and behavioral PLEPs in the
1/14/14 IEP stated:
Rating scales completed by mother and preschool
teacher indicate that [Student]’s performance of
the day-to-day activities necessary to take care
of himself and get along with others (adaptive
behaviors) is well below age expectations.
Behavior rating scales also indicated elevated
levels of concern compared to other children his
age in the areas of inattention/hyperactivity,
defiance, social functioning, mood
regulation/emotional control, and anxiety at home.
[Student] also has trouble interacting with his
peers. Although he initiates interactions
appropriately with adults, he has difficulty
transferring these skills to interactions with his
peers. . . .
[AR, Respondent’s Exh. 6 at 67-68.]
PLEPs as the 1/14/14 IEP.

The 4/4/14 IEP had the same

[AR, Respondent’s Exh. 7 at 80

(stating that the PLEPs section was “Updated 1/14/14”).]
The “Parent input” section of the 1/14/14 IEP stated:
(12/6/13) [Student] is more introverted. He likes
to be around other children but lacks social
skills (e.g., does not know how to approach
another child and request play appropriately). He
relates well to adults. She also notes that he
goes through “depressive spells” that can last a
week or more. . . .
[AR, Respondent’s Exh. 6 at 69.]

The 4/4/14 IEP had an identical

note in the “Parent input” section.
39

[AR, Respondent’s Exh. 7 at

82.]

It is undisputed that Student had

adaptive/emotional/behavioral issues during the 2013-14 school
year.

However, the presence of those issues alone does not prove

that a behavioral reevaluation was necessary for the development
of the 5/18/15 IEP.
The PLEPs section of the 5/22/14 IEP stated:
SOCIO-EMOTIONAL SKILLS
-engages in pretend play for 15 minutes
-likes to help with classroom jobs
-relates well with adults
-follows routines; anticipates next activity
-curious, explores materials in learning centers
-immature interactions with peers (baby talks,
silliness, making faces, copy-cat behavior)
-may “sabotage” peer’s play (hides toys, dumps
blocks where peers are playing)
-intentionally doesn’t clean up/put toys away
-prefers to play by himself or with an adult
-pouts, withdraws, seeks alone time
-sometimes refuses to comply with given directives
-intentionally acts out to get adult attention
NEEDS:
-manage his own feelings
-follow limits and expectations
-interact successfully with peers
-improve social problem-solving
[AR, Respondent’s Exh. 8 at 92.]

The PLEPs section of the

10/21/14 IEP had the same socio-emotional skills and needs.
Respondent’s Exh. 9 at 107.]
The “Parent Concerns” section of the 5/22/14 IEP
stated:
[Student] likes to be around other children but
lacks social skills. He doesn’t know how to
initiate play with another child or how to play
appropriately. He relates well to adults.
40

[AR,

[Student] goes through “depressive spells” that
can last a week or more. He has tantrums at home
that can include hitting, kicking, whining and
screaming and has difficulty calming himself down.
The family is receiving Parent Child Therapy to
help with behavior issues at home, which has
helped. Parent has noticed improvement in his
behavior and attitude since he began school. . . .
[AR, Respondent’s Exh. 8 at 92.]

The “Parent Concerns” section

of the 10/21/14 IEP was identical.

[AR, Respondent’s Exh. 9 at

107.]
The PLEPs section of the 5/18/15 IEP stated:
Social-Emotional:
-Happy and cheerful child, willing to try new
things
-Seems to be very comfortable in the classroom
-No separation problem
-Greets peers and adults
-Says “please” and “thank you”
-Curious and eager to explore in the classroom
-Likes being a helper
-Manages transition well
-Uses classroom toys/material carefully and puts
toys away
-Follows classroom rules and routine
-Tries out a variety of activities
-Willing to come and participate in activities not
of his choosing
-Learns well in both small/large setting
-Able to focus and complete tasks
-Participates actively in large/small group
activities such as circle/story/music time
and remains focused
-Gets along well with peers and plays
cooperatively
-Joins group games like Mr. Wolf and London bridge
-At times shows empathy by caring for friends
-Starting to show leadership
-Shares and takes turns most of the time
-Able to use words to express own feelings

41

-Participates in second step lessons, learning
about using calm down and problem solving
skills
Needs: None at this time
[AR, Respondent’s Exh. 10 at 121-22.]

It also stated:

Mother has expressed concern about [Student’s
behavior at home.
Below are the concerns:
Acting out physically
Defiant behavior
Very irritable
Doesn’t know what to do with his body and
emotions[.]
[Id. at 122.]
Nothing in the PLEPs or parental concerns sections of
these IEPs shows that Student’s behavioral needs required
reevaluation in order to develop the 5/18/15 IEP.

In fact, the

IEPs show that Student was making progress in his adaptive,
social, emotional, and behavioral skills at school, although he
was still experiencing issues at home.
The IDEA and Ninth Circuit case law only required the
DOE to address Student’s behavioral issues outside of school if
the issues were affecting his academic progress.

San Rafael

Elem. Sch. Dist. v. Cal. Special Educ. Hearing Office, 482 F.
Supp. 2d 1152, 1161 (N.D. Cal. 2007) (“[N]ot every need of a
particular child is the legal responsibility of the District.”).
Similarly, in Noah D. v. Department of Education, this district
court rejected the DOE’s argument that the court could not
42

consider the student’s educational progress – or lack thereof –
in the home because, in that case, the student’s IEP required the
DOE to provide certain in-home services.

Civil No. 12-00459 DKW-

RLP, 2013 WL 5944367, at *2 (D. Hawai`i Nov. 5, 2013) (citing San
Rafael Elem.).
This Court agrees with the analysis in San Rafael
Elementary, and, having reviewed the relevant IEPs, FINDS that
the IEPs do not show that Student’s behavioral issues at home
were affecting his educational progress.

Further, although

Student’s IEPs noted that his family was receiving therapy to
address his behavioral issues at home, see, e.g., AR,
Respondent’s Exh. 8 (5/22/14 IEP) at 92, there is no indication
that the DOE was providing the therapy as part of his IEPs.

This

Court FINDS that there is no evidence in the record that Student
was receiving special educational services or supports at home.
This Court therefore CONCLUDES that, because the PLEPs
and parental concerns sections only show continued behavioral
issues at home, those portions of the 5/22/14 IEP, 10/21/14 IEP
and 5/18/15 IEP do not support a finding that a behavioral
reevaluation was necessary to develop the 5/18/15 IEP.
c.

Other Information Available at the Meeting

The DOE’s failure to conduct the requested behavioral
reevaluation would only affect Student’s substantive rights if
the other information that was reasonably available to the IEP

43

team when it developed the 5/18/15 IEP established that:
1) Student was experiencing behavioral issues at school that were
not reflected in the 5/18/15 IEP; or 2) the behavioral issues
that Student was experiencing at home affected his educational
progress.
The 5/18/15 IEP identified positive social/emotional
behaviors and did not identify any needs.

Mother disagreed.

She

testified:
Q.
Did you see from your perspective the
cessation of all social and emotional problems
during that one school year, 2014-2015?
A.

No.

Q.
In fact, have his problems gotten worse as
far as you can tell over the years?
A.

Yes.

[12/16/15 Trans. at 161.]

Mother noted that the adaptive and

emotional/behavioral assessment summary in 4/4/14 IEP stated
that: Student’s “getting along with others, and his ability to
take care of himself, [were] well below age expectations”; and
“[i]nattention, hyperactivity, defian[ce], social functioning,
mood regulation, emotional control, and anxieties at home” showed
“elevated levels of concern compared to other children his age.”
[Id. at 149-50.]

Mother believed that Student still had these

deficits in June 2015.

[Id. at 150.]

First, although it was clear that, at the time of her
testimony during the due process hearing, Mother disagreed with
44

the Home School’s description of Student’s in-school behaviors,
it appears that her primary focus at the May 18, 2015 IEP team
meeting was on his at-home behavior.

As noted, supra, the

“Family/Medical” section of the 5/18/15 IEP noted that Mother
expressed concerns about Student’s at-home behavior.
Respondent’s Exh. 10 at 122.]

[AR,

At the due process hearing, Mother

was asked if that section was the totality of what she told the
team.

She responded: “That’s a fair bit.

there was anything else.”

I do not recall if

[12/16/15 Trans. at 129; id. at 207

(confirming that she could not recall if she had other concerns
beyond those reflected in the 5/18/15 IEP).]

However, even if

this Court assumes that Mother did assert at the 5/18/15 IEP team
meeting that Student’s in-school behaviors were more serious than
what was reflected in the draft of the IEP, the evidence in the
record – including Mother’s testimony – does not show either that
Student’s in-school behaviors were as problematic as his reported
at-home behaviors or that his in-school behaviors otherwise
warranted a behavioral reevaluation.
When asked whether it was possible that the behaviors
that the Home School teachers saw in May 2015 were different than
what she saw at home, Mother responded that she “never was with
him during the school day,” with the exception of a May Day
activity.

[Id. at 176-77.]

Mother testified that there was a

boxcar race in which the children wore cardboard boxes.

45

Student

needed multiple redirections so that he did not “wander off and
do his own thing and play bumper cars and try to crash into other
kids.”

[Id. at 177-78.]

Mother saw Student bump people and she

saw multiple redirections.

[Id. at 178.]

Mother admitted that

it seemed like the Home School was able to handle the situation
with appropriate redirection.

[Id. at 179.]

In addition, there

were “several things” that she was at the Home School for during
the 2014-15 school year when she “witnessed behaviors at the
school.”

[Id. at 177.]

When asked about whether there were

incidents of violence at the Home School, she described two
incidents: one in which she saw Student throw sand at another
child’s face; and an incident report that she received about
Student spitting on another child on the school bus.

[Id. at

179-80.]
The Hearings Officer found that the Private School
Principal testified that “in late July or early August 2015, she
spoke with an unidentified DOE office worker at the home school
who noted that Student had behavioral problems at the home
school.”

[Decision at 11.]

However, what the Private School

Principal actually testified was: “this woman said oh, you’ve got
him.

And I was like yes, he’s kind of a challenge.

transitions are difficult.
else sees it.”

Those

And she said well, I’m glad someone

[12/16/15 Trans. at 21.]

The Private School

Principal also stated, “it was like, you know, at last someone is

46

getting on this.”

[Id.]

However, it is not clear whether the

“at last someone is getting on this” statement was another
statement by the Home School office worker or merely the Private
School Principal’s interpretation of the “I’m glad someone else
sees it” statement.
Based on testimony by Mother and the 2014-15 SPED
Teacher, the office worker that the Private School Principal
spoke to was a woman named “Lori.”

Lori was the mother of some

of the children in the Head Start class and, although she was not
one of the regular helpers in Student’s 2014-15 classroom, she
would come to the class on occasion to help.
155-56; 12/18/15 Trans. at 447.]
process hearing.

[12/16/15 Trans. at

Lori did not testify at the due

Because Lori’s statement(s) to the Private

School Principal are open to interpretation, she had limited
experience with Student, and she did not testify at the hearing,
the Private School Principal’s testimony about Lori’s
statement(s) has minimal – if any – probative value.
Moreover, the record reflects that the Home School
consistently took the position that the problematic behaviors
Mother reported at home did not occur at school during the 201415 school year.

For example:

-The 10/27/14 PWN stated that Student’s parents requested a BSP
and had concerns about at-home behaviors, but the request
was rejected because Student was “not displaying any of the
behaviors of concern at school.” [AR, Respondent’s Exh. 9
at 118.]

47

-Mother testified that she had Student independently assessed11
because, when she raised concerns about Student’s behaviors,
emotions, and moods at a team meeting, Dr. Royston said they
were not seeing the problems in school. [12/16/15 Trans. at
152.]
-Mother testified that she and the 2014-15 SPED Teacher used a
communication book, and when Mother “expressed concerns
about behaviors, it was brushed off and [Mother] repeatedly
was told [Student] is perfect. We wish we had 20 more of
him.” [Id. at 129.]
-Mother acknowledged that the 2014-15 SPED Teacher discussed
Student’s social/emotional needs at the May 18, 2015 IEP
team meeting and, according to the teacher: “It was all
positive. She said [Student] is good to go. He’s great.”
[Id. at 130.]
The 2014-15 SPED Teacher testified that she collected
data about her students throughout the school year.

She

collected academic, behavioral, social, and emotional data about
Student.

[12/18/15 Trans. at 425.]

As to Student’s social

skills, the 2014-15 SPED Teacher testified that, “[a]t the
beginning of school year [sic], he did do more parallel play.
But by mid-year, he was into interacting with his peers and he
looked forward to when they arrived.”

[Id. at 427.]

According

to the 2014-15 SPED Teacher, by the end of the school year,
Student “was at age level for his social skills.”

[Id. at 426.]

He still occasionally engaged in parallel play, but he “like[d]
interacting with his peers” and played appropriately with other

11

Mother contacted Dr. Tyson’s office in February 2015.
[12/16/15 Trans. at 130.]
48

children.

[Id.]

Based on her interaction with Student, she did

not believe he had any social deficits.

[Id.]

As to Student’s behavior and emotions, the 2014-15 SPED
Teacher testified that she did not recall Student hitting other
children, and she did not consider him a danger to other
children.

He did not destroy other children’s property or the

Home School’s property.

[Id. at 427-48.]

He did not throw

tantrums, and “[h]e was usually very willing to come to do
activities where there would be small group or one-on-one within
academics.”

[Id. at 428.]

needed to take breaks.

She did not recall that Student

[Id.]

She testified that there were no

red flags with respect to his classroom behavior.

[Id. at 433.]

The 2014-15 SPED Teacher testified that she attended
the May 18, 2015 IEP team meeting and the “Social-Emotional”
section of the 5/18/15 IEP was developed based on input from
observations in her classroom.

[Id. at 429.]

She confirmed that

Mother told her that, at home, Student “could be defiant and he
would could [sic] be aggressive, and he wouldn’t listen, he had
breath-holding episodes, and he has depression.”

[Id. at 430.]

However, the 2014-15 SPED Teacher testified that she did not see
any of those behaviors in the classroom.

[Id.]

For example,

during circle time, which could last up to thirty or forty
minutes, the children were expected to sit cross-legged, with
their bodies and eyes oriented to the speaker.

49

Student “sat

really nicely.”

[Id. at 431-32.]

Sometimes he wanted to shout

out answers, but he was not the only child who did so.
432.]

[Id. at

The 2014-15 SPED Teacher testified that the IEP team

discussed Student’s behaviors and “determined that those were
typical behaviors of a preschool-aged child” and “it wasn’t
anything out of the norm that we would see in our classroom.”
[Id.]

She characterized his behavior at the time of the May 18,

2015 IEP team meeting as that of “a typical five-year-old.”

[Id.

at 430.]
The 2014-15 SPED Teacher has a Bachelor of Science
degree in speech pathology and audiology and a Master’s of
Education degree in special education.

She has a certification

to teach special education and early childhood education.

At the

time of the due process hearing, she had been employed with the
DOE for twenty-four years, all of them at the Home School.

The

last twenty-two of those years were as a special education
teacher in an inclusion classroom.

[12/18/15 Trans. at 415-17.]

The 2014-15 SPED Teacher is clearly qualified, and the Hearings
Officer never made a finding that she was not credible.
Dr. Royston recognized that “[t]here are times that
teachers sugarcoat and don’t see.”

[12/17/15 Trans. at 360.]

However, Mother’s limited observations of Student’s in-school
behavior and the vague statement(s) by “Lori” do not prove that
the 2014-15 SPED Teacher’s consistent descriptions of Student’s

50

in-school behavior were sugarcoated or that the teacher did not
see problematic behavior.

Thus, even if the Hearings Officer

made an implicit finding that the 2014-15 SPED Teacher’s
testimony regarding Student’s in-school behavior, social skills,
and emotions was not credible, the adverse credibility finding is
not supported by the record.
The relevant section of the Decision contains minimal
discussion of the 2014-15 SPED Teacher’s observations and
testimony.

See Decision at 20 (“Respondent argues that Student

was not exhibiting behaviors at school and cites the special
education teacher’s testimony that Student did not exhibit
behavioral problems at school while the May 18, 2015 IEP was
being developed.”).

The Hearings Officer disregarded the 2014-15

SPED Teacher’s testimony and credited Mother’s testimony that
“Student’s behavior was worse during the 2014-2015 school year.”
[Id. at 21.]

However, what Mother actually testified to was that

Student’s problems had “gotten worse . . . over the years.”
[12/16/15 Trans. at 161.]

Mother acknowledged that she was “not

with him every single day at school” during the 2014-15 school
year, and that the concerns she expressed at the May 18, 2015 IEP
team meeting were based on what she would see at home.
207.]

[Id. at

She admitted: “It is hard for me to believe that he can

have those behaviors at home and nothing at school.

I don’t

think there’s a button, an on/off button, or they’re medicating

51

the water somehow when he goes to school because that’s not my
kid.”

[Id. at 207-08.]

Mother’s frustration is understandable,

but her assumption that Student must have been exhibiting the
same problematic behavior at school that he was exhibiting at
home is not supported by the record.
For all of these reasons, this Court CONCLUDES that the
Hearings Officer erred in disregarding the 2014-15 SPED Teacher’s
testimony.

To the extent the Decision finds that Student’s in-

school behavioral/social/emotional levels during the 2014-15
school year were worse than those reflected in the 5/18/15 IEP,
this Court CONCLUDES that the finding is not supported by the
record.

Thus, this Court FINDS that, based on the information

that was reasonably available to the IEP team at the May 18, 2015
meeting, the 5/18/15 IEP accurately describes Student’s in-school
behavioral/social/emotional levels, and the information did not
show that a behavioral reevaluation was necessary.
As to the issue of whether Student’s at-home behaviors
affected his educational progress, the 2014-15 SPED Teacher
testified that Student’s behavioral concerns at home “would have
a significance” “if it impacted his learning in school,” but the
school did not observe such an impact.

[12/18/15 Trans. at 433.]

In her classroom, Student was able to do a non-preferential task
for ten to fifteen minutes without problems.

According to the

2014-15 SPED Teacher, Student needed minimal redirection.

52

He

received the prompting, redirection, and instructional breaks
that all children in the class received.

[Id. at 471.]

Petitioners have not identified any contrary evidence which shows
that Student’s at-home behavioral issues were affecting his
educational progress.
This Court FINDS that the record does not establish
that, based on the information that was reasonably available to
the IEP team at the May 18, 2015 meeting, Student’s at-home
behavioral issues were affecting his educational progress.
Further, because they did not affect his educational progress,
this Court CONCLUDES that Student’s at-home behavioral issues did
not establish that a behavioral reevaluation was necessary.
d.

Tyson Report

After Mother received the Tyson Report, she contacted
the 2014-15 SPED Teacher to request an IEP team meeting to
discuss Dr. Tyson’s ASD diagnosis and what changes needed to be
made to the 5/18/15 IEP before Student started kindergarten.

The

Home School Principal told Mother that they would be “starting
from scratch because it changes his eligibility.”
Trans. at 130-31.]
in June 2015.

[12/16/15

Mother testified that the meeting took place

[Id. at 131.]

Mother expected that, at the

meeting, the IEP team would add things to the 5/18/15 IEP, like
agreeing to the implementation of a BSP, “so that when
kindergarten starts everything is already in place and [Student]

53

won’t have that bump at the beginning.”

[Id. at 142-43.]

Mother

testified that, at the June 2015 meeting, Dr. Royston discussed
the fact that the Tyson Report reflected vast differences in what
the 2014-15 SPED Teacher reported and what Mother reported.
Therefore, the team – except for Mother – decided that they could
not consider the Tyson Report without observing Student first.
[Id. at 135-36.]
IEP in any way.

Thus, the IEP team did not change the 5/18/15
[Id. at 131.]

The PWN for the June 2015 meeting

(“6/16/15 PWN”) stated: “Reevaluation will be done.

The

following assessment will be completed: observation.”
Respondent’s Exh. 2 at 31.]

[AR,

The 6/16/15 PWN noted that Mother

presented the Tyson Report, but that the “[s]ignificant
differences between home and school ratings indicate need for
further observation to clarify.”

[Id.]

The Hearings Officer found that the Tyson Report
confirmed Mother’s reports of Student’s behavioral problems, and
therefore the Hearings Officer concluded that the failure to
conduct the requested behavioral assessment constituted a denial
of FAPE.

[Decision at 21-22.]

The Decision recognized that

Dr. Royston testified the Tyson Report reflected that Mother
“rated Student as very elevated on the Social Responsiveness
Scale and Autism Rating Scale; while the [2014-15 SPED T]eacher
had rated Student low and within normal limits” and “this may
show that Student’s behaviors at school were different from his

54

behaviors at home.”

[Decision at 9.]

Further, the Hearings

Officer noted that Dr. Tyson recognized that the difference
between Mother’s ratings and the 2014-15 SPED Teacher’s rating
“suggested that the teacher does not view Student as struggling
with social skills in the academic environment.”

[Id. at 8.]

The Hearings Officer also noted that Dr. Royston opined that
Dr. Tyson ignored inconsistent findings.

[Id. at 9.]

The

Hearings Officer recognized that Dr. Royston testified as an
expert in clinical and school psychology, whereas Dr. Royston did
not testify at the due process hearing.

[Id. at 8.]

Again,

although he did not make a finding that Dr. Royston was not
credible, the Hearings Officer disregard her testimony about the
Tyson Report, and relied on the contents of the Tyson Report in
concluding that the failure to conduct needed behavioral
assessments was a denial of FAPE.
When Dr. Tyson recognized that the differences in the
ratings suggested that the behavioral concerns Mother observed
may not be present at the Home School, Dr. Tyson stated: “While
this is highly unusual it may suggest that [Student] works very
hard to ‘fit in’ at school’ . . . .”
15 (emphasis added).]

[AR, Petitioners’ Exh. 1 at

Although recognizing that the situation

was highly unusual, Dr. Tyson apparently did not consider the
2014-15 SPED Teacher’s ratings in making her diagnosis and
recommendations.

Dr. Royston testified that the drastically

55

different ratings reported by Mother and the 2014-15 SPED Teacher
says . . . that according to teacher and parent
reports, his behavior at school is very different
from his behavior at home. Whether that’s a
result of . . . him working to fit in or not is
speculative. It’s one of the possible reasons for
that data to be looking like that.
Q
Is that a reason to not consider the
teacher rating scores in your diagnosis of autism?
A

No.

[12/17/15 Trans. at 360.]

Dr. Royston attended the June 2015 IEP

team meeting that was convened to discuss the Tyson Report.
Dr. Royston offered to observe Student at school because she
acknowledged that:
There are times that teachers sugarcoat and don’t
see.
There are several signs that teachers might
not see that . . . could have been there. I
needed to see whether his behavior was consistent
what [sic] the teacher said or not before we could
move forward with accepting this as an accurate
diagnosis.
[Id. at 367.]

Dr. Royston also noted that it was important to

observe Student in school and examine his behavior when he is
with peers, which does not occur during an office examination,
such as the examinations Dr. Tyson conducted.

[Id. at 367-68.]

According to Dr. Royston, the team could not take action upon the
data in the Tyson Report “because there’s such inconsistencies
that Dr. Tyson completely ignored and didn’t explain.”
368.]

56

[Id. at

At the due process hearing, Dr. Royston opined that the
Tyson Report had “significantly contradictory information, which
clearly . . . needed further clarification before a conclusion of
autism spectrum disorder could be made.”

[Id. at 352-53.]

Dr. Royston described numerous concerns with the Tyson Report,
including, inter alia: Dr. Tyson’s use of an outdated
“diagnostics scale” for Asperger’s Syndrome that is merely a
screening tool; [id. at 353-54;] the limited description of the
information that Student’s parents provided on the different
reporting scales they had to complete; [id. at 354-55;]
insufficient consideration of the 2014-15 SPED Teacher’s
evaluations and/or explanation of why the data was disregarded;
[id. at 356-60, 368;] the use of an ADOS-2 Module that was not
age-appropriate because, if the module is too difficult, it will
result in an elevated score [id. at 363-65;] internal
inconsistencies in the Tyson Report; [id. at 369;] and the fact
that “poorly modulated eye contact” was noted as an indication of
autism, but it is also “very common” in people with ADHD, and it
is also common in young children in general when someone tries to
talk to them while they are engaged in an activity [id. at 37071].
Mother confirmed that, at the May 18, 2015 IEP team
meeting, Dr. Royston discussed the vast differences between what
the 2014-15 SPED Teacher reported and what Mother reported, and

57

the other IEP team members decided that they could not consider
the Tyson Report without a further observation of Student.
[12/16/15 Trans. at 135-36.]

Thus, the team discussed conducting

an observation of Student at Summer Fun and/or in the
kindergarten classroom.

[12/17/15 Trans. at 397.]

As previously noted, Dr. Tyson did not testify at the
due process hearing.

There was no evidence to contradict

Dr. Royston’s testimony that, based on the information available
to the IEP team at the June 2015 meeting and in light of the
issues with the Tyson Report, the IEP team could not act upon the
Tyson Report without conducting further observations.12

Even if

the Hearings Officer made an implicit finding that Dr. Royston’s
testimony that the Tyson Report required further confirmation was

12

Janet Fitzgerald, Psy.D., testified that she reviewed the
Tyson Report, and she agreed with the report. [12/16/15 Trans.
at 84, 91; AR, Petitioners’ Exh. 1 at 78 (letter dated 10/22/15
from Dr. Fitzgerald stating that her observations support an ASD
diagnosis).] However, because she did not start seeing Student
until August 2015, this Court will not consider her observations
in evaluating the decisions that the IEP team made in June 2015.
At the due process hearing, Petitioners presented a letter
dated November 3, 2015 from Kenneth J. Filbeck, MD, FRACGP,
Student’s primary care physician. Dr. Filbeck stated that
Student had been his patient since January 2015 and that he saw
Student six times (although the letter does not specify when).
He supported “the diagnosis of record – Autism Spectrum Disorder
without language impairment and without intellectual impairment,”
although his primary observations were that of ADHD. [AR,
Petitioners’ Exh. 1 at 68.] He supported the recommendations in
the Tyson Report “as reasonable and appropriate for [Student’s]
ongoing benefit.” [Id.] However, because the IEP team did not
have Dr. Filbeck’s letter at the June 2015 IEP team meeting, this
Court will not consider the letter in evaluating the decisions
that the team made at the meeting.
58

not credible, the adverse credibility finding is not supported by
the record.

This Court therefore CONCLUDES that it was

reasonable for the IEP team to defer further action – including
conducting a behavioral reevaluation of Student – until it
confirmed the findings of the Tyson Report through further
observation.13
Thus, this Court CONCLUDES that the Tyson Report,
standing alone, did not establish that a behavioral reevaluation
was necessary at the time of the June 2015 IEP team meeting.
e.

Summary

The DOE committed a procedural violation of the IDEA by
failing to conduct a behavioral reevaluation of Student upon
Mother’s request.

However, this Court CONCLUDES that the

procedural violation did not affect Student’s substantive rights
because, based on the information that was reasonably available
to the IEP team at the May 18, 2015 IEP team meeting and the
June 2015 meeting, a behavioral reevaluation was not necessary.
Because the procedural violation did not affect Student’s
substantive rights, it did not result in a denial of FAPE.

This

Court therefore GRANTS the DOE’s appeal insofar as this Court

13

In August 2015, during the pendency of the Due Process
Complaint, Mother gave her consent to allow Dr. Royston to
observe Student at the Private School. [AR, Respondent’s Exh. 22
at 215.]
59

REVERSES the Hearings Officer’s ruling that the DOE’s failure “to
conduct needed behavioral assessments” denied Student a FAPE.
B.

Mother’s Substantive Rights
The Hearings Officer concluded that Petitioners failed

to prove that the DOE denied Student’s parents the right to
meaningful participation in the development of the 5/18/15 IEP.
[Decision at 30.]

Although Petitioners’ cross-appeal contends

that this was error, Petitioners’ Answering Brief/opening brief
in support of the cross-appeal does not analyze this point of
error.

Even if this Court interpreted Petitioners’ brief as

pursuing this point of error, this Court would reject
Petitioners’ argument.
It is undisputed that Mother raised her concerns about
Student’s behaviors to the IEP team at the May 18, 2015 meeting,
but the rest of the team did not agree with her position and did
not take the actions she requested.

After Mother received the

Tyson Report, she requested another meeting to review it.

The

IEP team, however, declined to change the 5/18/15 IEP in light of
the Tyson Report.

The 6/16/15 PWN stated that further

observation was necessary to clarify the “significant differences
between home and school ratings” reflected in the report.
Respondent’s Exh. 2 at 31.]

[AR,

Thus, although the IEP team did not

agree with Mother’s positions, it is clear that it considered
them.

60

This Court therefore CONCLUDES that the procedural
violation of failing to conduct a behavioral reevaluation upon
Mother’s request did not affect her substantive rights because it
was not the type of violation that infringed on her right to
meaningful participation in the development of Student’s IEP.
See, e.g., Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1047
(9th Cir. 2013) (holding that “[t]he failure to include [father]
in the IEP meeting clearly infringed on his ability to
participate in the IEP formulation process”);

Amanda J. ex rel.

Annette J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 894 (9th Cir.
2001) (holding that the failure to disclose the student’s full
records upon parents’ request both prevented the IEP team from
creating an IEP that addressed her special needs and “prevented
[her parents] from participating fully, effectively, and in an
informed manner in the development of [her] IEP”).
This Court therefore rejects Petitioners’ cross-appeal
as to this argument and AFFIRMS the portion of the Decision
concluding that the procedural violation of the IDEA did not
affect Mother’s substantive rights.
IV.

ESY Services
Petitioners’ cross-appeal also argues that the Hearings

Officer erred in rejecting their claims that: the 5/18/15 IEP
failed to offer Student a FAPE because it did not include ESY

61

services; and the IEP team failed to have an appropriate
discussion of the ESY issue.
A.

Appropriate Discussion
First, as the Hearings Officer found in the Decision,

the Home School Vice Principal’s and the 2014-15 SPED Teacher’s
testimony at the due process hearing, as well as the Vice
Principal’s hand-written notes taken during the May 18, 2015 IEP
team meeting, confirm that the team discussed whether Student was
eligible for ESY.

The team discussed each of the four parts of

the DOE’s ESY standard: the nature and severity of Student’s
disability; self-sufficiency/independence; regression; and
recoupment.

[12/18/15 Trans. at 407-09, 434-35; AR, Respondent’s

Exh. 25 at 233-34.]

The Home School Vice Principal testified

that “there was a small discussion about behaviors that were
taking place at home,” but the 2014-15 SPED Teacher told the team
that “the behaviors [Mother] was seeing at home were not taking
place at school.”

[12/18/15 Trans. at 408-09.]

The discussion

of at-home behavior is confirmed in the Vice Principal’s notes,
which also reflect that Mother was concerned about the lack of a
structured program for two months.
233.]

[AR, Respondent’s Exh. 25 at

Thus, it is clear that the IEP team did discuss ESY

eligibility at the May 18, 2015 meeting, and that the discussion
included Mother’s concerns about Student’s behavior.

To the

extent that Petitioners’ cross-appeal contends that the IEP team

62

failed to consider Student’s behavioral issues in determining
whether he was eligible for ESY services, this Court rejects
their argument.

The team did consider Mother’s concerns about

his at-home behavior and, as discussed supra, he was neither
exhibiting the same problems at the Home School nor was his
educational progress being affected by his at-home behavioral
issues.
Respondent’s Exhibit 20 is Student’s “Teaching
Strategies GOLD” (“Strategies Scale”).

It has various

objectives/dimensions for the following categories – SocialEmotional, Physical, Language, Cognitive, Literacy, and
Mathematics – and “shows . . . where he falls on the scale [for
each objective/dimension] based on the rating period which would
be either fall, winter or spring.”

[12/18/15 Trans. at 437.]

The Strategies Scale was created based on data that the 2014-15
SPED Teacher kept.

[Id.]

She testified that she used the

Strategies Scale in her discussion of the ESY issue.
439.]

[Id. at

She brought it with her to the May 18, 2015 meeting, but

could not recall if it was shown to Mother.

[Id. at 466.]

In

their cross-appeal, Petitioners argue that the Strategies Scale
was not presented at the May 18, 2015 meeting, and that the
specific data within the Strategies Scale was not discussed.
[Answering Brief at 2.]

63

While the better practice would have been to provide
Mother with a copy of the Strategies Scale, the fact that it was
not shown to Mother at the meeting is not enough to establish a
denial of FAPE.

At the due process hearing, the 2014-15 SPED

Teacher testified that the Strategies Scale shows that, for each
category, Student was at levels expected for his age by the end
of the 2014-15 school year.

[12/18/15 Trans. at 438-39.]

Petitioners did not present any evidence that the 2014-15 SPED
Teacher’s reading of the Strategies Scale was incorrect or that
there were errors in the creation of the document.

Thus, even

assuming, arguendo, that the failure to provide Mother with a
copy of the Strategies Scale was a procedural error at or prior
to the May 18, 2015 IEP team meeting, the error was harmless.
Petitioners also emphasize that the 5/18/15 PWN states:
“‘e) Team will use data available during the 2015-16 school year
to determine if (Student) needs extended school year (ESY) during
summer intersession.’”

[Answering Brief at 3 (emphasis

Petitioners’) (quoting AR, Respondent’s Exh. 10 at 131).]
Petitioners argue that this “attests that the team based the
denial of ESY services on the unavailability of data at the
meeting,” i.e. that the team intended to use data collected
during the 2015-16 school year to justify the failure to provide
ESY services for Summer 2015.

[Id.]

64

Petitioners misinterpret the 5/18/15 PWN and take that
statement out of context.

The 5/18/15 PWN states, in pertinent

part:
3.

Description of other options considered:
. . . .

d)
Extended school year during shorter
breaks for 2015-16 school year (i.e. October
break, winter break, spring break)
e)
Extended school year for kindergarten
year (2015-16 school year) during summer
intercession
. . . .
4.

Reasons these options were rejected:
. . . .

d)
Team will use data available during the
2015-16 school year to determine if [Student]
needs extended school year (ESY) during shorter
breaks (i.e. October break, winter break, spring
break)
e)
Team will use data available during the
2015-16 school year to determine if [Student]
needs extended school year (ESY) during summer
intercession
. . . .
[AR, Respondent’s Exh. 10 at 130-31.]

Reading the 5/18/15 PWN as

a whole, it is clear that item 4.e refers to the use of data
obtained during the 2015-16 school year to determine whether
Student needed ESY services during Summer 2016, not to justify
the previous decision that he was not eligible for ESY services
during Summer 2015.
65

This Court therefore rejects Petitioners’ argument that
the IEP team failed to conduct an appropriate discussion of the
ESY issue at the May 18, 2015 IEP team meeting.

To the extent

that the Hearings Officer concluded that the there was no
procedural violation of the IDEA in the discussion of the ESY
issue, the Decision is AFFIRMED.
B.

Failure to Provide ESY Services
Petitioners argue that the Hearings Officer erred when

he concluded that the failure to offer Student ESY services for
Summer 2016 was a denial of FAPE.
This district court has recognized that: “‘A school
must provide [ESY] services . . . only if the child’s IEP team
determines that such services are necessary for the provision of
FAPE to the child.’”

K.K. ex rel. K.S.K. v. Hawaii, CIV. NO. 14-

00358 JMS-RLP, 2015 WL 4611947, at *20 (D. Hawai`i July 30, 2015)
(alterations in K.K.) (quoting N.B. v. Hellgate Elementary Sch.
Dist., 541 F.3d 1202, 1211 (9th Cir. 2008)).

Further,

“[A] claimant seeking an ESY must satisfy an even
stricter test, because ‘providing an ESY is the
exception and not the rule under the regulatory
scheme.’” [N.B. v. Hellgate, 541 F.3d at 1211]
(quoting Bd. of Educ. of Fayette Cnty. v. L.M.,
478 F.3d 307, 315 (6th Cir. [2007])). “ESY
Services are only necessary to a FAPE when the
benefits a disabled child gains during a regular
school year will be significantly jeopardized if
he is not provided with an educational program
during the summer months.” Id. (quoting MM ex
rel. DM v. Sch. Dist. of Greenville Cnty., 303
F.3d 523, 537–38 (4th Cir. 2002)). “If the child
benefits meaningfully within his potential from
66

instruction under a proper IEP over a regular
school year, then ESY service may not be required
under the Act unless the benefits accrued to the
child during the regular school year will be
significantly jeopardized if he is not provided an
[ESY].” Id. at 1212 (quoting Cordrey v. Euckert,
917 F.2d 1460, 1473 (6th Cir. 1990)).
Id. (some alterations in K.K.).

In N.B. v. Hellgate, the Ninth

Circuit noted: “The federal regulation does not specify the
factors to be considered in determining entitlement to ESY
services.”

541 F.3d at 1210 (discussing 34 C.F.R.

§ 300.309(a)(1) (1999) (“[e]ach public agency shall ensure that
extended school year services are available as necessary to
provide FAPE” (alteration in N.B.))).14

14

The comparable current provision is 34 C.F.R. § 300.106,
which states, in pertinent part:
(a)

General.
(1) Each public agency must ensure that
extended school year services are available
as necessary to provide FAPE, consistent with
paragraph (a)(2) of this section.
(2) Extended school year services must be
provided only if a child’s IEP Team
determines, on an individual basis, in
accordance with §§ 300.320 through 300.324,
that the services are necessary for the
provision of FAPE to the child.
(3) In implementing the requirements of this
section, a public agency may not(i) Limit extended school year services
to particular categories of disability;
or
(continued...)
67

The record clearly establishes that the IEP team
discussed the four-part standard that the DOE uses to determine
whether a student is eligible for ESY services.

Petitioners have

not cited any legal authority – nor is this Court aware of any –
which indicates that the DOE’s ESY standard violates the IDEA,
particularly in light of the authority given to local educational
agencies to establish standards for the provision of ESY
services.
As to the factor regarding the nature and severity of
Student’s disability, the 2014-15 SPED Teacher testified that
Student was considered developmentally delayed, but that his
disability was not considered severe, based on the available data
– i.e. the Teaching Strategies – which indicated that he was at
expected age levels in all measured categories by the end of the
2014-15 school year.

[12/18/15 Trans. at 436-39.]

The team also

looked at Student’s “Goals and Objective at his present levels.”
[Id. at 435.]

The data in the Teaching Strategies and the

information in Student’s PLEPs also address the selfsufficiency/independence factor.

14

(...continued)
(ii) Unilaterally limit the type,
amount, or duration of those services.

34 C.F.R. §§ 300.320-300.324 discuss IEPs and IEP teams
generally; they do not address specific requirements for ESY
services. Haw. Admin. R. § 8-60-7 is substantively identical to
§ 300.106.
68

Petitioners argue that Student needed ESY services
during Summer 2015 to receive a FAPE because of his behavioral
issues.

However, this Court has already concluded that the

information reasonably available to the IEP team at the time it
developed the 5/18/15 IEP – or reevaluated it at the June 2015
meeting – showed that Student was not experiencing behavioral
problems at the Home School and that his at-home behavioral
issues were not affecting his educational progress.

Similarly,

this Court rejects Petitioners’ argument that the nature and
severity of Student’s disability factor and the selfsufficiency/independence factor weighed in favor of ESY
eligibility because of Student’s behavioral issues.
As to the regression and recoupment factors, the 201415 SPED Teacher testified that the IEP team discussed the October
break, December break, and March break during the 2014-15 school
year.

The October and March breaks were one week each, and the

December break was approximately three weeks.
at 467-68.]
breaks.

[12/18/15 Trans.

Student did not have ESY services during those

See, e.g., AR, Respondent’s Exh. 9 (10/21/14 IEP) at 115

(stating that ESY is necessary for the summer school session from
June 16, 2014 to July 14, 2014).

The team looked at where

Student was prior to those breaks and where he was when he came
back after the breaks.

[12/18/15 Trans. at 467.]

During the

December break, Student did not experience much regression and

69

recouped pretty quickly.
to learn.”

[Id.]

[Id. at 468.]

In other words, Student “came back happy and

he came back wanting to do things.
activities to do.”

Student “came back ready

He was excited to be given

[Id. at 472.]

Petitioners argue that the failure to provide ESY
services for Summer 2015 was a denial of FAPE because there was
no “data that demonstrated Student could be without services for
an 8-week period since he had never gone that long without
services before.”

[Answering Brief at 2.]

Petitioners’ position

is essentially that, once a student is determined to be eligible
for ESY services during a summer session, ESY services must be
provided every year thereafter unless the school collects data
proving that the student can be without services for a length of
time equivalent to the summer session.

According to Petitioners,

this can be done during the school year “by suspending
instruction in an area of need.”

[Id. at 3.]

Petitioners cite

no legal authority for these positions, nor is this Court aware
of any.
Moreover, the IDEA does not require a school to provide
ESY services to every student with disabilities to prevent that
student from experiencing any regression.

As previously noted, a

FAPE need not provide the “absolutely best” or
“potential-maximizing” education.

J.W., 626 F.3d at 439

(citation and internal quotation marks omitted).

70

The FAPE need

only be “appropriately designed and implemented so as to convey
[the] [s]tudent with a meaningful benefit.”
(citations and quotation marks omitted).

Id. at 433

Based on the

information reasonably available to the IEP team at the relevant
times, the team reasonably determined that ESY services were not
necessary to convey Student with a meaningful benefit.
It is unfortunate that Student struggled during the
Summer Fun program, and it is understandable that Mother was
frustrated and disappointed with the removal of ESY services from
Student’s IEP.
Student.

As all parents do, Mother wants the best for

While Mother’s passionate advocacy for her child is

commendable, the Hearings Officer and this Court are required to
follow the applicable law.

In particular, this Court must follow

the snapshot rule and consider only the information that was
reasonably available to the IEP team at the time it made the
decision.

To consider Student’s difficulties in the Summer Fun

program in evaluating the decision not to include ESY services in
the 5/18/15 IEP would be to improperly scrutinize the decision
through hindsight.

Based upon the available information at the

relevant time, this Court must AFFIRM the Hearings Officer’s
ruling that the exclusion of ESY services for Summer 2015 from
the 5/18/15 IEP did not constitute a denial of FAPE.

71

V.

Amount of Special Education Services
Finally, Petitioners argue that the 5/18/15 IEP failed

to offer Student a FAPE because he requires more than 300 minutes
per week of special education services.

The Hearings Officer

found:
Based upon Student’s abilities, the Hearings
Officer agrees the 300 minutes per week of special
education services Student would receive in
kindergarten for language arts and math was
appropriate. Petitioners have not shown that
Student needs more than 300 minutes per week of
special education services in order to make
academic progress.
[Decision at 29.]

Based upon this Court’s previous rulings – in

particular those regarding Student’s lack of behavioral issues at
the Home School and the undisputed evidence in the record that
Student was performing at expected age levels in all categories
measured in the Teaching Strategies by the end of the 2014-15
school year – this Court agrees with the Hearings Officer.

This

Court FINDS that Petitioners have not identified any evidence in
the record that requires the reversal of the Hearings Officer’s
finding that 300 minutes per week of special education services
was sufficient, based on the information that was reasonably
available to the IEP during the relevant time period.

This Court

therefore AFFIRMS the Hearings Officer’s conclusion that
Petitioners failed to establish that the 5/18/15 IEP denied
Student a FAPE because it only included 300 minutes per week of
special education services.
72

VI.

Summary and Reimbursement Issue
This Court has VACATED the Hearings Officer’s Decision

as to his ruling regarding the Child Find issue, and REVERSED the
Decision as to his ruling that the DOE’s failure “to conduct
needed behavioral assessments” affected Student’s substantive
rights and therefore denied Student a FAPE.

Further, this Court

has AFFIRMED the Decision as to: the alleged denial of Mother’s
substantive rights; the alleged violations of the IDEA regarding
ESY services; and the alleged failure to include sufficient
minutes of special education services.

This Court therefore

CONCLUDES that the 5/18/15 IEP offered Student a FAPE.
Because the 5/18/15 IEP offered Student a FAPE, this
Court REVERSES the Hearings Officer’s award of reimbursement for
the expenses that Petitioners incurred for Student’s attendance
at the Private School.

This Court notes that Petitioners have

only asked this Court to affirm the award of reimbursement if it
affirmed the Hearings Officer’s ruling that there was a denial of
FAPE.

See Answering Brief at 9-10 (“If this tribunal agrees

Student 5/18/15 IEP [sic] was procedurally and/or substantively
defective, reimbursement can be awarded . . . .”).

This Court

makes no findings or conclusions regarding any other basis for
reimbursement.

73

CONCLUSION
On the basis of the foregoing, the Court HEREBY VACATES
IN PART, REVERSES IN PART, AND AFFIRMS IN PART the Hearings
Office’s February 10, 2016 Findings of Fact, Conclusions of Law
and Decision.

The Court GRANTS the DOE’s appeal insofar as the

Court: VACATES the portion of the Decision addressing the Child
Find issue; REVERSES the portion of the Decision ruling that the
DOE’s failure “to conduct needed behavioral assessments” denied
Student a FAPE; and REVERSES the reimbursement award.

This Court

DENIES Petitioners’ cross-appeal and AFFIRMS the Decision in all
other respects.
There being no remaining issues in this case, the Court
DIRECTS the Clerk’s Office to close this case and enter judgment
in favor of the DOE on January 19, 2017, unless one of the
parties files a motion for reconsideration of this Order by
January 17, 2017.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 29, 2016.

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

74