Minors v. Hamamoto
| Decision Date | 26 August 2010 |
| Docket Number | No. 09-15754.,09-15754. |
| Citation | 620 F.3d 1090 |
| Parties | MARK H., individually and as Guardians Ad Litem of Michelle H. and Natalie H., minors; Rie H., individually and as Guardians Ad Litem of Michelle H. and Natalie H., minors, Plaintiffs-Appellants, v. Patricia HAMAMOTO, in her official capacity as Superintendent of the Hawaii Department of Education; Department of Education, State of Hawaii, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Davis Levin Livingston, Stanley E. Levin, and Michael K. Livingston, Honolulu, HI, and Keith H.S. Peck, Peck & Associates, Honolulu, HI, for the plaintiffs-appellants.
Mark J. Bennett, Attorney General of Hawaii, and Dorothy Sellers, Hawaii Solicitor General, Honolulu, HI, for the defendants-appellees.
Appeal from the United States District Court for the District of Hawaii, Manuel L. Real, District Judge, Presiding. D.C. No. 1:00-cv-00282-MLR-LEK.
Before BETTY B. FLETCHER, HARRY PREGERSON, and RICHARD R. CLIFTON, Circuit Judges.
Following remand from our court, Mark H. v. Haw. Dep't of Educ., 513 F.3d 922 (9th Cir.2008), Mark H. and Rie H., individually and as guardians ad litem for their daughters Michelle H. and Natalie H., ) filed an amended complaint against the Hawaii Department of Education (acting through its employees), and Patricia Hamamoto, in her official capacity as Superintendent of the Hawaii Department of Education (collectively “Hawaii DOE”). In their amended complaint, the H. Family sought damages for Hawaii DOE's alleged violations of the Rehabilitation Act § 504.
Specifically, the H. Family alleged that, from 1994 to 1999, Hawaii DOE denied Michelle and Natalie meaningful access to the benefits of a public education in two key ways: (1) by failing to provide the girls with reasonable accommodations for their disabilities through autism-specific special education services, and (2) by failing to design the girls' Individualized Education Programs (“IEPs”) to meet the girls' needs as adequately as the needs of non-disabled students were met. The H. Family alleged that these failures were the result of the Hawaii DOE's deliberate indifference and therefore violated the Rehabilitation Act § 504, giving rise to a private cause of action for damages.
The district court granted summary judgment in favor of Hawaii DOE. The H. Family appealed. For the reasons explained in detail below, we reverse.
The following facts are undisputed. Michelle and Natalie both have autism. Because of their autism, both girls have significant barriers to learning. The girls are essentially non-verbal and have a limited ability to have meaningful interactions with others.
In 1994, Hawaii DOE and the Hawaii Department of Health entered into the Felix consent decree. In the Felix decree, the two state agencies recognized that they had violated the federal Individuals with Disabilities Education Act (“IDEA”) and the Rehabilitation Act by failing to provide necessary education and mental health services to qualified handicapped children. The Felix decree requires the two agencies to work together to provide the services necessary to enhance the likelihood of positive learning outcomes for students with disabilities, including autism. Ultimately, Hawaii DOE is responsible for ensuring that its students receive appropriate special education services.
In 1994, when Michelle was three years old, Hawaii DOE found her eligible for special education services. That same year, a Hawaii Department of Health psychologist diagnosed Michelle with autism and informed Hawaii DOE of his diagnosis. The Department of Health psychologist recommended that Hawaii DOE provide Michelle with numerous autism-specific services. 1 Hawaii DOE did not implement these recommendations.
Hawaii DOE also found Natalie eligible for special education services in 1994, when Natalie was two years old. In 1995, Hawaii DOE identified Natalie as eligible for special education services based on early childhood learning impairment. That same year, Kaiser, the H. Family's medical provider, diagnosed Natalie with autism. Hawaii DOE noted Natalie's autism diagnosis in her 1995 IEP. 2
The H. Family made the following allegations in their amended complaint, which Hawaii DOE disputed as either untrue or not established by the record. At the time the girls were diagnosed as autistic, they were capable of benefitting from a public education by learning effective speech and communication skills, but only with the help of autism-specific services. Hawaii DOE knew that the girls needed autism-specific services, were entitled to receive these services, and that it was obligated to provide those services. From 1994 to 1999, Hawaii DOE neither provided the girls with the autism-specific services they needed to access the benefits of a public education nor designed the girls' IEPs to meet the girls' needs as adequately as the needs of non-disabled students were met. The H. Family contends that these failures were the result of the Hawaii DOE's deliberate indifference to the girls' needs and their federally protected rights.
The H. Family supported these allegations with reports and other documentation prepared by Dr. Daniel B. LeGoff, a licensed psychologist and pediatric neuro-psychologist who worked for the Hawaii Department of Health both directly and as a consultant. Dr. LeGoff provided an analysis of the special needs of autistic children. According to Dr. LeGoff, children with autism do not learn in the same ways as normal children. Rather, children with autism need specialized teaching that incorporates repetition, routine, and behavioral reinforcement. It is widely recognized by psychologists and other mental health experts that children with autism typically need to receive autism-specific services in order to learn and develop. These autism-specific services include behavioral therapies such as “Discrete Trial Training,” use of a dedicated therapeutic aide in the classroom, and “structured teaching” programs. 3 Children with autism who receive early, autism-specific services typically experience much greater development of their cognitive, adaptive, communication, and social skills than children with autism who do not receive such services. 4
Dr. LeGoff reported that Hawaii DOE did not provide either Michelle or Natalie with any autism-specific services prior to 1998, when Michelle was six years old and Natalie was five years old. Although Hawaii DOE did provide the girls with some speech and occupational therapy, those services were delivered without consultation with autism or mental health specialists.
In 1998, four years after the first Department of Health psychologist recommended that Hawaii DOE provide Michelle with numerous autism-specific services, Dr. LeGoff provided Hawaii DOE with specific recommendations regarding the autism-specific services Michelle and Natalie needed. According to Dr. LeGoff, when he first made his recommendations to the girls' school, the school principal refused to include these recommendations in the girls' IEPs.
In 1999, the H. Family filed an administrative action against Hawaii DOE under IDEA and the Rehabilitation Act § 504. The hearing officer in that action made a number of factual findings relevant to this appeal. The hearing officer found that from 1994 to 1998, Hawaii DOE did not provide autism-specific services to the girls, although such services were available. Additionally, the hearing officer found that Hawaii DOE did not include autism-specific services in the girls' IEPs before 1999. Based on these facts, the hearing officer determined that prior to the hearing, the girls had not received “such services as are necessary to permit the child[ren] to benefit” from their education.
The H. Family's allegations also find support in the deposition testimony of several individuals. Paula Maruyama, Michelle's preschool teacher, testified that Michelle and Natalie should have had intensive instruction throughout the school year, but did not receive it. Michelle and Natalie's father testified at his deposition that from 1994 to 1998, the girls “were warehoused and put in a classroom with somebody who sat on the other side of the room and did very little.”
According to Pauline Kokubun, a Hawaii DOE employee responsible for coordinating services for children with disabilities, from 1994 to 1999, Hawaii DOE was providing other autistic students with autism-specific services, including assistance from in-classroom therapeutic aides and Discrete Trial Training. Kokubun's account is corroborated by a report prepared by Dr. LeGoff that explains that at least three Department of Health autism specialists were actively providing autism-specific interventions to other Hawaii DOE students during this time period.
Eventually, all the relevant Hawaii DOE employees agreed that the Michelle and Natalie needed, and could receive, the autism-specific services that Dr. LeGoff recommended. By 2003, after the administrative hearing, the girls had a teacher trained in autism-specific instruction, attended special after-school mental health programs, and were receiving behavioral intervention services. Since Hawaii DOE began providing these services, the girls have made some developmental progress, but their social and communication skills, as well as their ability to have meaningful interpersonal interactions, remain limited.
Dr. LeGoff concludes that it is likely that the girls would have made significantly more progress had they received the appropriate services sooner. According to Dr. LeGoff, Hawaii DOE's failure to provide appropriate autism-specific services to the girls from 1994 to 1999 amounted to a “tragic loss” of developmental opportunity for the girls. Likewise, at the administrative hearing, several...
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