Janet G. v. Hawaii, Dept. of Educ.

• Decision Date: 29 December 2005
• Docket Number: No. CIV. 05-00268ACKLEK.,CIV. 05-00268ACKLEK.
• Citation: 410 F.Supp.2d 958
• Parties: JANET G., individually and on behalf of her minor child, Joshua G., Plaintiff, v. State of HAWAII, DEPARTMENT OF EDUCATION, and Pat Hamamoto, in her official capacity as Superintendent of the Hawaii Public Schools, Defendants.
• Court: U.S. District Court — District of Hawaii

410 F.Supp.2d 958

JANET G., individually and on behalf of her minor child, Joshua G., Plaintiff, v. State of HAWAII, DEPARTMENT OF EDUCATION, and Pat Hamamoto, in her official capacity as Superintendent of the Hawaii Public Schools, Defendants.

No. CIV. 05-00268ACKLEK.

United States District Court, D. Hawai`i.

December 29, 2005.

Keith H.S. Peck, Peck & Associates, Honolulu, HI, for Plaintiff.

Holly T. Shikada, Department of the Attorney General Education Division, Lane H. Tsuchiyama, Deputy Attorneys General, Honolulu, HI, for Defendants.

ORDER DENYING PLAINTIFFS' REQUESTED RELIEF

KAY, District Judge.

BACKGROUND

Plaintiff Joshua G. ["Joshua"] was first deemed eligible for special education services in his first grade school year. (March 17, 2005 Administrative Decision ¶ 2).¹ In May 2004, Defendant² State of Hawaii Department of Education ["DOE"] re-evaluated Joshua to determine whether he was qualified for special education and related services under the Individuals with Disabilities Education Act ["IDEA"], 20 U.S.C. § 1400, et seq. (Defs.' Resp. at 3). As part of the re-evaluation, the DOE administered several assessments to Joshua for the purpose of gathering information to ascertain whether Joshua met the eligibility criteria. (Defs.' Resp. at 3-4). Based on Joshua's reported disability of Dyslexia, Joshua's Eligibility Determination Team believed that he might qualify for special education and related services under the category of Specific Learning Disability ["SLD"], HAR § 8-56-26. (Defs.' Resp. at 4). Various standardized tests were administered to determine whether Joshua suffered from a disorder that affected his ability to listen, learn, think, speak, read, write, spell, or do mathematical calculations. (Defs.' Resp. at 4-5).

On May 26, 2004, an eligibility meeting was held. (March 17, 2005 Administrative Decision ¶ 4). Joshua's mother and father both attended this meeting. (March 17, 2005 Administrative Decision ¶ 4). At the meeting, the DOE found that Joshua did not qualify for special education and related services under the category of SLD because Joshua's test scores exceeded the eligibility threshold set forth in HAR § 8-56-26. (Defs.' Resp. at 5; March 17, 2005 Administrative Decision ¶ 4).

The March 17, 2005 Administrative Decision indicates that reference was made to Section 504 (Chapter 53) services during the DOE's May 26, 2004 meeting with Joshua's parents. (March 17, 2005 Administrative Decision at 3-4). More specifically the Decision explains that: Psychological Examiner Jan Ohta testified that at the May 26, 2004 meeting, the possibility of providing Joshua with Section 504 services was "mentioned, but not considered, as not all members were present"; Psychological Examiner Reginald Jaderstrom "did not recall going through the 504 criteria during the May 26, 2004 meeting"; Joshua's Special Education Teacher, Nancy Yomogida, testified that during the May 26, 2004 meeting, Section "504 modifications were brought up, but the team did not feel that [Joshua] had a disability that significantly impacted his ability to learn. Therefore, [Joshua] did not qualify under [Section] 504" and that Joshua's parents "appeared to understand that [Joshua] did not qualify for special education benefits ... under 504, and they did not ask any questions" and Joshua's Principal testified that the only mention he made regarding Section 504 is that he would look into it. (March 17, 2005 Administrative Decision at 4-5).

On May 26, 2004, the DOE issued a Prior Written Notice of Department Action ["PWN"] notifying Plaintiffs of the DOE's IDEA eligibility determination. (Defs.' Resp. at 6). The May 26, 2004 PWN states that Joshua was "rescinded from Special Education services as of 05/26/2004." (R. 175). The PWN also states, under the section entitled "Description of other options considered," "504 offered by the Principal" and, under the section entitled, "Reasons these options were rejected," "504: School counselor led the discussion. Joshua did not have a disability that significantly impacts his learning. 504 was not pursued." (R. 175).

On August 16, 2004, Joshua's father, Delmar G. Jr., sent a letter to Caroline Wong ["Wong"], Principal of Moanalua Middle School ["MMS"], stating:

My wife and I have decided to send our son Joshua [G.], to private school this year. We felt that he needed an IEP to address his needs. We did not get an IEP or documentation explaining why Joshua was ineligible for an IEP or 504 accommodations. We recently received a list of accommodations, we agree he needs this help, but feel it should have been official. We would like the Department of Education to reimburse us for the costs of his schooling at private school. Should a meeting be scheduled to discuss our concerns, you may contact my wife ....

(R. 135). On September 8, 2004, Joshua's parents met with Wong to discuss the range of supports available to Joshua in an educational setting. (Defs.' Resp. at 7). At this meeting, Wong offered to look into the possibility of pursuing Section 504 modifications and accommodations for Joshua. (Defs.' Resp. at 7). In a letter addressed to Wong, dated September 20, 2004, Joshua's parents stated, "Thank you for meeting with us. You had mentioned you will check into Section 504 for Joshua's eligibility. We would like to have a 504 eligibility meeting. Joshua would need at the least, that kind of support to be successful in school." (R. 136). MMS received the September 20, 2004 letter on September 23, 2004. (Defs.' Resp. at 7; March 17, 2005 Administrative Decision ¶ 15).

Following the September 20, 2004 letter, Joshua's mother, Plaintiff Janet G., and the MMS Student Services Coordinator, Jesse Yano, exchanged several missed telephone calls, in an attempt to set a date to discuss Section 504 accommodations. (March 17, 2005 Administrative Decision ¶ 19). In his March 17, 2005 Administrative Decision, the Administrative Hearings Officer also stated that Joshua's "Mother testified that the [Student Services Coordinator] left a telephone message on her recorder, listing two dates to schedule the meeting. Mother left a return message with the [Student Services Coordinator], informing him that she was unavailable for these two dates, but not indicating what dates she could attend. Upon cross examination, Mother stated that she wanted to go with Father to the meeting. Although Father could have attended the meeting by himself, he was not as knowledgeable as Mother about the process." (March 17, 2005 Administrative Decision ¶ 19). As noted by the Hearings Officer, the record indicates that the DOE issued a written Meeting Announcement on September 28, 2004 informing Joshua's parents that a meeting was scheduled for October 13, 2004. (R. 162). Finally, the Hearings Officer noted that the meeting "was held on the last allowable date under the statute, October 13, 2004." (R. 60).

On October 13, 2004, MMS convened a Student Support Team meeting to determine whether or not to pursue a formal evaluation for modifications and accommodations under HAR Chapter 53, Hawaii's implementing regulations for Section 504. (Defs.' Resp. at 8). Joshua's parents did not attend the October 13, 2004 meeting. (Defs.' Resp. at 8). At the October 13, 2004 meeting, Joshua's Student Support Team found that Joshua was ineligible for Section 504 services. (March 17, 2005 Administrative Decision ¶ 21; Defs.' Resp. at 9). According to Meeting Notes of the Student Support Team Meeting, held on October 13, 2004,

A 504 evaluation was conducted to determine Joshua's need for Section 504, Chapter 53, 504 Modification Plan services. Parent's written request was received and parents were invited to a scheduled Student Support Team (SST) meeting. SST members in attendance determined available current information will be used for the evaluation.... The information (current assessments, observation reports, and records) is adequate to determine Joshua's evaluation for 504 Modification Plan services. Joshua will not be evaluated for 504 Modification Plan services. Although Joshua may have a diagnosed learning impairment of dyslexia, it appears that there isn't any functional data available to determine that this impairment substantially limits his learning in the classroom.

(R. 173). The Notes also indicate that Joshua's mother was contacted regarding the meeting on September 28, 2004; Joshua's father was contacted on September 29, 2004; and Joshua's parents were also contacted on October 1, 2004. (R. 173).

On October 13, 2004, the DOE issued a PWN that stated that Joshua "will not be evaluated for 504 Modification Plan services" and that "[a]lthough Joshua may have a diagnosed learning impairment of dyslexia, it appears that there isn't any functional data available to determine that this impairment substantially limits his learning in the classroom." (R. 176). On November 1, 2004, Plaintiffs filed a Request for Impartial Hearing. (R. 217). Plaintiffs stated that their concerns were that Joshua "was deemed ineligible for IDEA and Section 504 services improperly" and "[t]his was a substantive breach of FAPE." (R. 217).

On February 3 and 4, 2005, the Office of Administrative Hearings, Department of Commerce and Consumer Affairs, State of Hawaii ["OAH"] conducted an administrative hearing. (Defs.' Resp. at 3). Defendants state that Joshua and his parents were afforded the opportunity to present evidence supporting their positions at these hearings. (Defs.' Resp. at 3). On March 17, 2005, the Administrative Hearings Officer issued a Decision ["OAH Decision"] dismissing Plaintiffs' claims for relief as contained in their November 1, 2004 Request for Impartial Hearing. (R. 60).

Plaintiffs' filed their Complaint appealing the OAH Decision on April 14, 2005. Defendants filed an Answer on July 1, 2005. On September 12, 2005, Plaintiffs filed an Opening Brief. On October 12, 2005, Defendants filed a Responsive Brief. The...