Aaron P. v. Dep't of Educ.

AARON P., and PUAKIELENANI P, in their capacity as Parentsand legal guardians of The Student K., Plaintiffs,

v.DEPARTMENT OF EDUCATION, STATE OF HAWAII, Defendants.

CIVIL NO. 10-00574 LEK-KSC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Date: October 31, 2011

ORDER AFFIRMING IN PART AND REMANDING IN PART

THE HEARINGS OFFICER'S SEPTEMBER 3, 2010 DECISION

Before the Court is an appeal by Plaintiffs Aaron P. and Puakielenani P.,¹ in their capacity as parents and legal guardians of Student K. (collectively "Plaintiffs"), of the Administrative Hearings Officer's ("Hearings Officer") Findings of Fact, Conclusions of Law and Decision ("Decision"), filed on September 3, 2010. Plaintiffs filed their Opening Brief in the instant case on March 22, 2011. Defendant the Department of Education, State of Hawai'i ("the DOE" or "Defendant") filed its Answering Brief on May 17, 2011, and Plaintiffs filed their Reply Brief on May 31, 2011. The Court heard oral argument in this matter on June 27, 2011. Appearing on behalf of Plaintiffs wasMagali Sunderland, Esq., and appearing on behalf of Defendant was Michelle Puu, Esq. Pursuant to this Court's order, the parties submitted supplemental briefing after the hearing. Plaintiffs filed their supplemental memorandum on August 10, 2011; Defendant filed its supplemental memorandum on August 17, 2011; and Plaintiffs filed their supplemental reply brief on August 24, 2011. After careful consideration of the parties' submissions, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY AFFIRMED IN PART AND REMANDED IN PART because, although the Court agrees with the Hearings Officer's rulings on Plaintiffs' claims based on evaluation and on the four individualized educational program ("IEPs") specifically addressed in the Decision, the Court must remand the case so that the Hearings Officer can address Plaintiffs' claims based on the other IEPs and Prior Written Notices ("PWN") that Plaintiffs challenged in their Request for Impartial Hearing ("RIH"), but which the Hearings Officer did not specifically rule upon in the Decision.

BACKGROUND

I. Factual and Administrative Background

At the time of the Decision, Student K. (or "Student") was almost seven years old. The Decision addresses her prior attendance at Kamali'i Elementary School ("Kamali'i") and herprivate placement at the Pacific Autism Center ("PAC").² In 2004, Student K. began an early intervention services program on O'ahu after undergoing a Department of Health ("DOH") evaluation prior to her first birthday. Her pediatrician diagnosed her with developmental delay and low muscle tone. Student K.'s family moved to Maui in 2005, and Student K. continued her early intervention services through IMUA Family Services ("IMUA"). Student K. entered the DOE system in the 2006-2007 school year. She was found eligible for special education services and the related services of occupational therapy and speech language therapy in the category of developmental delay (ages 3-5). [Decision at 6.³ ]

Plaintiffs obtained private psychological examinations of Student K. on October 13, 2006 and January 30, 2007. Ellen Caringer, Ph.D., diagnosed Student K. with Pervasive Developmental Disorder - Not Otherwise Specified ("PDD-NOS"), which is an autism spectrum disorder ("ASD"), and Moderate Mental Retardation ("MMR"). [Id. at 2, 6.] Dr. Caringer recommended that Student K. receive: "(a) maximum levels of speech therapy; use of other communication mechanisms; (b) use of a 1:1 aide; (c)consultation with an autism specialist to develop the IEP; and (d) occupational therapy and physical therapy consultation and intervention . . . ." [Id. at 6.] Also in the first half of 2007, Plaintiffs obtained private occupational therapy and physical therapy evaluations. [Id. at 7.]

In the 2007-2008 school year, Student K. attended preschool at Kamali'i in a fully self-contained special education ("SPED") classroom. She received 120 minutes per quarter of occupational therapy, sixty minutes per week of speech language therapy, physical therapy consultation services, one-on-one adult support, the services of a Behavior Intervention Services Specialist ("BISS"), and the services of an Autism Consulting Teacher ("ACT"). There were four IEP meetings during that school year: August 10, 2007, November 2, 2007, February 14, 2008, and April 8, 2008. [Id. at 8.]

In the 2008-2009 school year, Student K. continued preschool at Kamali'i, with almost the same services and supports that she received the previous year, except that the amount of occupational therapy she received varied during the year, and she also received an Extended School Day ("ESD") program at home with one-on-one adult support. IEP meetings convened on the following dates for the 2008-2009 school year: July 29, 2008; August 1, 2008; August 22, 2008; September 8, 2008; September 22, 2008; November 24, 2008; December 9, 2008; May 11, 2009; May 18, 2009;and June 23, 2009. [Id. at 9-10.]

On November 25, 2008, Plaintiffs obtained a private physical therapy evaluation. Carol Riccio, M.S., P.T., recommended that Student K. receive physical therapy. [Id. at 11; ROA, Pets.' Exh. 36 (evaluation dated 11/25/08).] On December 3, 2008, Plaintiffs obtained a comprehensive psychological evaluation of Student K. from the Resnick Neuropsychiatric Hospital Autism Evaluation Clinic at the University of California Los Angeles ("UCLA Evaluation"). [Decision at 11; ROA, Pets.' Exh. 35 (UCLA Evaluation).] On March 26-27, 2009, Plaintiffs obtained a private psychological consultation. Colin B. Denney, Ph.D., diagnosed Student K. with Autistic Disorder and MMR and made various recommendations. [Decision at 2, 11-12; ROA, Pets.' Exh. 62 (evaluation dated 3/26-3/27/09).]

At the May 18, 2009 IEP team meeting, the team had its first opportunity to review the UCLA Evaluation. [Decision at 11 n.15, 12.] The IEP team agreed that the DOE would conduct speech, cognitive, and physical therapy assessments of Student K. The DOE completed the three assessments during the month of July 2009. [Id. at 12.] The Hearings Officer noted that the DOE had been attempting to conduct a physical therapy evaluation of Student K. since November 2008, but Plaintiffs did not consent to the evaluation until sometime after May 18, 2009 because they didnot believe that the DOE could provide an unbiased evaluation. [Id. at 12 n.16.]

On July 2, 2009, Student K.'s eligibility team met and determined that she remained eligible for IDEA services under the category of multiple disability - autism. [Id. at 12.]

Plaintiffs removed Student K. from Kamali'i after the 2008-2009 school year and placed her at PAC, a facility on Oahu for children with ASDs. [Id. at 17.]

On July 15, 2009, Plaintiffs filed the RIH with the Office of Administrative Hearings, Department of Commerce and Consumer Affairs. The RIH argues that:

For the school years 2007-08 and 2008-09 [Student K.'s] IEPs have not provide (sic) appropriate services or placement for her. Her goals and objectives have not been adequate or appropriate to address her deficits, nor have her needs been adequately identified. Moreover, the DOE has failed to provide all services as stated in [Student K.'s] IEP for the above stated school years. Due to the DOE's failure to offer a [free appropriate public education ("FAPE")] for the past two years, and for the 2009-10 school year, [Plaintiffs] will be relocating to the island of Oahu and will be placing [Student K.] at the Pacific Autism Center. . . .

[ROA at 5.] The RIH sought:

a). A finding that the IEPs, including the IEPs of April 8, 2008, September 8, 2008, May 18, 2009 and June 23, 2009, violate the IDEA and have not offered FAPE to [Student K.] for the past two years, and for the 2009-10 school year;

b). A finding that the DOE committed procedural and substantive violations of the IDEA,including but not limited to failing to properly evaluate [Student K.], failing to develop appropriate goals and objectives, failing to offer appropriate services or programs to meet her unique needs, and/or failing to implement [Student K.'s] IEPs;

c). Reimbursement to [Plaintiffs] for school tuition, services and related expenses (including travel related expenses) paid to the Pacific Autism Center, and/or payment of school, services tuition and related expenses at the Pacific Autism Center from August 3, 2009 (including travel related expenses), pursuant to 20 U.S.C. § 1412(a)(10)(C);

d). An assessment needs to be conducted to determine [Student K.'s] educational needs with respect to communication.

e). An academic assessment needs to be completed to determine [Student K.'s] current academic strengths and weaknesses as well as where she is with respect to academic standards.

f). A behavioral intervention plan needs to be developed and implemented;

g). [Student K.] needs an increase in her direct speech therapy services;

h). [Student K.] needs direct occupational therapy and/or physical therapy service) (sic);

i). [Student K.] needs intensive autism-specific education/training, including the use of ABA/Verbal Behavior,[⁴ ] both in the classroom and in the home setting, provided by skilled and knowledgeable therapists;

j). Reimbursement to [Plaintiffs] for the cost of private evaluation conducted by the UCLA Medical Center, Kiegan Blake (OT), Carol Riccio, RPT, and Colin Denney, Ph.D.;k). Compensatory education;

l). Attorney's fees and costs.

[ROA at 6.]

After various continuances, the due process hearing convened on February 10 and 11, 2010, March 23, 2010, and May 5 and 6, 2010. [Decision at 3-5.] The parties submitted written closing briefs and proposed findings of fact and conclusions of law. The Hearings Officer filed the Decision on September 3, 2010, due in part to her unexpected medical leave. [Id. at 5.]

In the Decision, the Hearings Officer framed the issue in the RIH as whether the IEP drafted at the April 8, 2008 meeting ("4/8/08 IEP"), the IEP drafted at the ...