J.T. v. Dep't of Educ.

Decision Date31 May 2012
Docket NumberCIVIL NO. 11-00612 LEK-BMK
PartiesJ.T., by and through his parents Renee and Floyd T., Plaintiffs, v. DEPARTMENT OF EDUCATION, STATE OF HAWAII, et al. Defendants.
CourtU.S. District Court — District of Hawaii
ORDER REVERSING IN PART AND REMANDING
HEARINGS OFFICER'S ORDER DATED SEPTEMBER 12, 2011

Before the Court is an appeal pursuant to the Individuals with Disabilities in Education Act ("IDEA") by Plaintiffs J.T., by and through his parents Renee and Floyd T. (collectively, "Plaintiffs"), of the Administrative Hearings Officer's (the "Hearings Officer") Findings of Fact, Conclusions of Law, and Decision (the "Decision"1 ), filed on September 12, 2011. Plaintiffs filed their Opening Brief in the present case on February 15, 2012. Defendant Department of Education, State of Hawai'i (the "DOE") filed its Answering Brief on April 16, 2012, and Plaintiffs filed their Reply Brief on April 27, 2012. The Court heard oral argument in this matter on May 7, 2012. Appearing on behalf of Plaintiffs was John Dellera, Esq., andappearing on behalf of the DOE was James E. Raymond, Esq. After careful consideration of the parties' briefs, the arguments of counsel, and the relevant legal authority, the Decision is HEREBY REVERSED IN PART and REMANDED for the reasons set forth below.

BACKGROUND
I. Factual and Administrative Background

J.T. is a twelve-year-old boy who was adopted by Renee T. shortly after his birth. [Opening Brief at 1 (citing Pet.'s Exh. 8 at 1).] Plaintiffs state that, from early in his life, J.T. suffered from sensory and developmental problems and had to receive occupational therapy, physical therapy, and speech therapy services provided by the State of Hawai'i Department of Health. [Id. at 2 (citing Hrg. Trans. Vol. III at 292-93).] J.T. entered the DOE's pre-kindergarten special education program and received special education services in speech, math, and language arts from age three to five. [Id. (citing Hrg. Trans. Vol. III at 294-95).]

During second and third grades, J.T.'s Present Levels of Educational Performance ("PLEP") put his academic performance at- or above-grade level in math, but indicated limited reading comprehension and writing skills. [Id. at 3 (citing Resp.'s Exh. 4 at 17; Resp.'s Exh. 5 at 29; Resp.'s Exh. 6 at 40).] Plaintiffs question J.T.'s math assessment, claiming that he did not know how to do his homework, did not ask questions in class,and performed below his grade level. [Id. (citing Hrg. Trans. Vol. III at 295-98).] Plaintiffs also claim that J.T. has difficulty communicating, answering questions, and expressing himself. [Id. (citing Hrg. Trans. Vol. III at 299:15-21).]

In 2008, Plaintiffs sought consultation from psychologist Peggy Murphy-Hazzard, Psy.D., who examined J.T. and produced a neuropsychological evaluation dated February 25, 2009 (the "Murphy-Hazzard Report"), which concluded that J.T. had below-average to borderline verbal cognitive abilities, the possibility of an auditory processing disturbance, a basis for diagnosing attention deficit hyperactivity disorder (ADHD), and a basis for diagnosing a mixed, receptive-expressive language disorder. [Id. at 3-4 (citing Pet.'s Exh. 9 at 94-95).] The report recommended further evaluation of J.T. in order to rule out a reading disorder and central auditory processing disorder. [Id. (citing Pet.'s Exh. 9 at 96).]

As provided by the IDEA, Renee T. was a member of a team tasked with crafting an Individualized Education Program ("IEP") for J.T. She claims that she expressed the same concerns at every IEP meeting:

I would go through his language or his communication, not being able to communicate. I would bring up spelling. I would bring up reading, math. For this IEP I figured math problems were going to be coming up. And he had the communication problems. I brought up him shutting down. Because if he's not asking questions that's why he can't do hiswork. And I was concerned for his grades.

[Id. at 4 (quoting Hrg. Trans. Vol. III at 302-03).] Renee T. claims that, although the other team members appeared to listen to her concerns, the IEPs would not reflect issues such as mental health, math, and communication. [Id. at 4-5 (quoting Hrg. Trans. Vol. III at 303:14-19).] Plaintiffs posit that the IEP team may have ignored Renee T.'s concerns because the teachers did not take notice of his behavioral issues, as he would instead "shut down." [Id. at 5 (quoting Hrg. Trans. Vol. III at 306:12-13).] Plaintiffs point to an after-school incident in which J.T. cut another student's finger with a pair of scissors. [Id. (quoting Hrg. Trans. Vol. III at 306:15-23).]

At J.T.'s March 3, 2009 IEP meeting, Renee T. informed the members of the IEP team that the Murphy-Hazzard Report was forthcoming [id. at 4 (citing Hrg. Trans. Vol. III at 304:15-19)], and she provided the team with a copy of the report in March or April 2009 [id. at 5 (citing Hrg. Trans. Vol. III at 301:23-25)]. On May 14, 2009, J.T.'s regular-education teacher, special-education teacher, student-services coordinator, and Renee T. met to discuss the Murphy-Hazzard Report, but Plaintiffs claim that the discussions had no impact on the IEP. [Id. (citing Pet.'s Exh. 4 at 63; Hrg. Trans. Vol. III at 308:11-17).] Plaintiffs did not receive notice of the next IEP meeting, which was held on May 29, 2009. [Id. (citing Hrg. Trans. Vol. III at308-09; Resp.'s Exh. 5 at 38).] At that meeting, the IEP team, absent Renee T., developed PLEPs that referred to some of the findings of the Murphy-Hazzard Report, but did not include provisions for central auditory processing disorder, mixed receptive-expressive language disorder, or reading disorder. [Id. at 5-6 (citing Hrg. Trans. Vol. III at 310:3-7; Resp.'s Exh. 5 at 29).]

Plaintiffs contend that the March 3, 2009 PLEPs, which were prepared without consideration of the Murphy-Hazzard Report, and the May 29, 2009 PLEPs, which were prepared after Renee T. had provided the IEP team with a copy of the Murphy-Hazzard Report, were "essentially the same and focus exclusively on language arts, omitting behavioral, math, and auditory processing needs." [Id. at 6 (citing Pet.'s Exh. 5 at 66; Pet.'s Exh. 4 at 47).] The latter IEP allegedly does not reflect any change in goals and objectives. [Id.]

On March 2, 2010, the DOE scheduled J.T.'s next IEP meeting for the following day. Renee T. was not available to attend, and she instead suggested that they meet on March 5, 2010. [Id. at 7 (citing Pet.'s Exh. 10 at 148).] The DOE held the IEP meeting on March 3, 2010, without Renee T., and produced an IEP with goals and objectives identical to the previous IEPs. [Id. (citing Pet.'s Exh. 2 at 13-15).] The DOE delivered a copy of the IEP to Renee T.'s home that day. The IEP teamsubsequently met on May 26, 2010 and June 22, 2010, with Renee T. present, to produce a revised IEP (the "combined June 2010 IEP"). [Decision at 49.]

By letter dated May 26, 2010, Renee T. informed the DOE that she "will place J.T. at Loveland Academy at State expense." [Opening Br. at 7 (quoting Pet.'s Exh. 10 at 140).] J.T. began attending Loveland Academy in July 2010 for assessment, and he officially enrolled on November 10, 2010. [Id. (citing Pet.'s Exh. 22 at 276; Hrg. Trans. Vol. III at 331:12-13).]

On or around March 2, 2011, J.T. filed a Request for Impartial Hearing. [Id. at 8.] The hearing took place between March 17 and 24, 2011, and the Hearings Officer issued his Decision on September 12, 2011. [Id.] The Hearings Officer's conclusions are summarized as follows:

(1) The DOE's failure to provide Plaintiffs with advanced notice of the May 29, 2009 IEP meeting resulted in a denial of a Free Appropriate Public Education ("FAPE"). [Decision at 46.] The DOE improperly denied Renee T. an opportunity to participate in the formulation of the May 29, 2009 IEP. [Id. at 48.]

(2) The DOE's failure to include Renee T. at the March 3, 2010 IEP meeting was excusable and did not result in a denial of FAPE. [Id.] There was no evidence that the DOE deliberately attempted to exclude Renee T., and the DOEsubsequently held two IEP revisions meetings with Renee T. that resulted in the combined June 2010 IEP. [Id. at 49.]

(3) The combined June 2010 IEP was not a denial of FAPE. [Id. at 50-56.] The Hearings Officer determined that Dr. Murphy-Hazzard "did not do an adequate study of Student and that the report's diagnosis of Student in the mental health area is not adequate to raise concerns by the DOE insofar as Student's education is concerned." [Id. at 51.] He noted that the basis for the report is one-sided and did not pertain to any mental-health behaviors in the school setting. [Id. at 52.]

(4) J.T. is not entitled to reimbursement and/or direct payments for J.T.'s placement at Loveland during the 2010-11 school year. [Id. at 56.] The Hearings Officer made no finding as to whether Loveland Academy was "appropriate" for J.T. [Id.]

(5) J.T.'s speech-language needs should have been evaluated in 2009, but, when the DOE finally attempted to institute an evaluation process in 2010, Renee T. failed to cooperate with the DOE. The Hearings Officer determined that, if "a future full assessment of Student results in a finding that he has one of [sic] both of these disorders [i.e., mixed receptive-expressive disorder and/or an auditory processing disorder], Student should receive the equivalent of an additional year of speech-language services appropriate to Student's situation at the time of such a finding or findings." [Id. at 63.]

Plaintiffs filed this appeal from the Decision on October 12, 2011. [Opening Br. at 9.]

II. Plaintiffs' Opening Brief

Plaintiffs appeal the Decision on the grounds that: (1) Renee T. was denied meaningful participation at the IEP team meetings; (2) the DOE denied J.T. a FAPE by creating inadequate IEPs and failing to diagnose his mental health issues and speech-language disorders; (3) he is entitled to reimbursement of his tuition at Loveland Academy; and (4) he...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT