Sam K. v. Haw. Dep't of Educ.

• Decision Date: 05 June 2015
• Docket Number: Nos. 13–15486,13–16452.,s. 13–15486
• Citation: 788 F.3d 1033
• Parties: SAM K., by and through his parents; DIANE C.; George K., Plaintiffs–Appellees, v. State of HAWAII DEPARTMENT OF EDUCATION, Defendant–Appellant. Sam K., by and through his parents; Diane C.; George K., Plaintiffs–Appellants, v. State of Hawaii Department of Education, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

788 F.3d 1033

SAM K., by and through his parents;

DIANE C.;

George K., Plaintiffs–Appellees

v.State of HAWAII DEPARTMENT OF EDUCATION, Defendant–Appellant.

Sam K., by and through his parents;

Diane C.;

George K., Plaintiffs–Appellants

v.State of Hawaii Department of Education, Defendant–Appellee.

Nos. 13–15486

13–16452.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 2014.

Filed June 5, 2015.

Jocelyn H. Chong, Michelle Puu (argued), and Holly T. Shikada, Deputy Attorneys General, Honolulu, HI, for Defendant–Appellant/Defendant–Appellee.

Carl M. Varady, Honolulu, HI, for Plaintiffs–Appellees/Plaintiff–Appellee.

Appeals from the United States District Court for the District of Hawaii, Alan C. Kay, Senior District Judge, Presiding. D.C. No. 1:12–cv–00355–ACK–BMK.

Before: A. WALLACE TASHIMA, JOHNNIE B. RAWLINSON, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

Sam K. is a disabled student. An administrative hearings officer for the State of Hawaii concluded that the State Department of Education (“DOE”) failed to propose a school placement for Sam for the 2010–11 school year that was appropriate and satisfied the requirements of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The hearings officer further found that the private school program in which Sam was enrolled by his parents was appropriate.

In other circumstances, this would have entitled the parents to reimbursement by the DOE for the costs of attending the private program, but the hearings officer also concluded that the parents' request for reimbursement was untimely under Haw.Rev.Stat. § 302A–443(a). That statute sets two different limitations periods. Parents ordinarily have two years to initiate the process by requesting a hearing, but the statute requires a filing “within one hundred and eighty calendar days of a unilateral special education placement” if the request includes “reimbursement of the costs of the placement.” Id. The hearings officer found that the private placement by the parents was “unilateral” and that their request was not filed within 180 days. Reimbursement was denied on that ground. The district court disagreed. It held that the placement was “bilateral,” not “unilateral,” so that the parents' request was not untimely, and concluded that the parents were entitled to reimbursement. We affirm the judgment of the district court.

The district court also awarded attorney's fees to Sam and his parents. Contending that the hourly rate used in calculating the award was too low, Sam cross-appeals the amount of the attorney's fees. We affirm that order as well.

I. Background

Sam K. suffers from anxiety, depression, language issues, speech issues, social issues, and central auditory processing disorder

. In 2003, his parents (“Parents”) removed Sam from public school and placed him in Loveland Academy, a private institution in Honolulu, where he was enrolled every year thereafter. The current litigation concerns Sam's placement for the 2010–11 school year.

Previous litigation between the Parents and DOE regarding the three years immediately preceding the 2010–11 school year was resolved by a settlement in May 2010 under which (1) DOE agreed to pay for Sam's tuition at Loveland for school years 2007–08 through 2009–10, (2) current information from Loveland about Sam would be provided to DOE, and (3) the Parents would participate in an “IEP Reevaluation meeting” by the end of June 2010.¹ The Parents and DOE representatives met to discuss Sam's Individual Education Plan (“IEP”) for the following year several times during the summer and into the fall of 2010. In the meantime, the 2010–11 school year began, and Sam remained at Loveland.

The meetings extended into January 2011. No different placement was ever agreed upon. DOE did not present a specific public school placement until January 14, 2011, when DOE produced a signed IEP that provided that Sam would be placed in a public school program at the Windward Intensive Learning Center (“ILC”). DOE followed up on that proposal by sending to the Parents a document entitled Prior Written Notice of Department Action, giving formal notice of the ILC placement, dated January 27, 2011. Sam never joined the ILC program, remaining at Loveland instead.

The Parents disputed the effectiveness of the IEP and the finality of the ILC placement. The DOE stated in letters dated March 9, 2011, and April 20, 2011, that the IEP issued on January 14, 2011, was the final IEP. The Parents filed a request for a due process hearing on October 27, 2011.

Following an extensive due process hearing, the administrative hearings officer issued a 34–page Findings of Fact, Conclusions of Law, and Decision. The decision included at least five determinations that are important for the current appeal.

1. The DOE “predetermine[d] placement to be appropriate at DOE Proposed Placement [the ILC program] in advance and without any significant parental input.” The hearings officer further concluded that “[t]he IDEA is violated when the DOE predetermines placement for [Sam] before the IEP is developed. In addition to being contrary to the procedural requirement that the placement be based on the IEP, pre-determination also deprived [the] Parents of meaningful participation in the IEP process.”

2. The placement proposed by the DOE was “ill advised, inappropriate, and potentially disastrous to [Sam] and his education.” The decision detailed reasons for that strongly-worded conclusion, but as the DOE is no longer contesting the conclusion, it is not necessary to go into them here. The important determination, also no longer disputed by DOE, was that the placement proposed by the DOE was not reasonably calculated to confer educational benefits on Sam and denied him the free appropriate public education to which he was entitled under the IDEA.

3. The Parents established that Loveland was an appropriate placement for purposes of reimbursement. The hearings officer specifically concluded that it “has provided and can provide educational instruction specially designed to meet the unique needs of [Sam], supported by such services as are necessary to permit [Sam] to benefit from instruction.” (citations omitted).

4. The placement of Sam at Loveland for the 2010–11 school year was a “unilateral placement” by the Parents, without the agreement of DOE. The DOE made its position clear that the IEP process was over and the ILC placement was what it made available. The hearings officer found that DOE stated this view no later than in its letter dated March 9, 2011. This letter was received by the Parents around March 12, 2011, and so the 180–day period began running, at the latest, on March 12, 2011. The Parents' request for a due process hearing and reimbursement was filed on October 21, 2011. That was untimely as it was more than 180 days later, so the hearings officer concluded that reimbursement was precluded under Haw.Rev.Stat. § 302A–443(a). In reaching that conclusion, the hearings officer's decision discussed both the previous decision of the district court in D.C. v. Department of Education, 550 F.Supp.2d 1238 (D.Haw.2008), and our decision in K.D. v. Department of Education, 665 F.3d 1110 (9th Cir.2011).

5. The Parents did not establish that DOE was responsible for the failure to have the 2010–11 IEP in place by the conclusion of the August 6, 2010, IEP meeting, which would have been only about one week after the start of the school year. In reaching that conclusion, the hearings officer observed that the IEP process was “very lengthy and very disputatious.... As stated by Petitioners' counsel: ‘We'll stipulate that it [the relationship between the parties] was bad.’ ” (alteration in original).

On appeal from the administrative decision, the district court reversed the hearings officer's finding as to the statute of limitations, but affirmed in all other respects. The district court followed its own prior decision in D.C., where it held that a subsequent determination by a hearings officer in favor of a student that a private placement was appropriate, while the DOE's proposed placement was not, constituted an agreement between the DOE and the family rendering the private placement “bilateral” rather than unilateral. See D.C., 550 F.Supp.2d at 1240. The district court also observed that Sam had been placed at Loveland for many years, and that the DOE had agreed in the settlement agreement to pay for the Loveland program for the preceding three years. The court noted that the DOE had not offered an IEP for Sam for those preceding years, that the settlement agreement did not provide for a change in placement, and that no IEP had been offered by the DOE by the beginning of the 2010–11 school year. Under those circumstances, the district court concluded that the “Parents' decision to continue to enroll Sam in Loveland effectively was a continuation of a bilateral placement rather than a unilateral placement.” The court's order discussed our decision in K.D., which held that a settlement agreement did not necessarily constitute an agreement by the DOE that continued into following years, concluding that our K.D. decision was distinguishable based on the facts that the district court identified.

On appeal to this court, the DOE does not challenge the first three conclusions by the hearings officer identified above, all of which were affirmed by the district court. It is, therefore, no longer in dispute regarding the 2010–11 school year that (1) DOE breached a procedural requirement of the IDEA by predetermining Sam's placement and failing to allow for significant parental input in the IEP process, (2) the ILC placement proposed by DOE was inappropriate for Sam, and (3) the Loveland program in which Sam was enrolled by his Parents was appropriate. DOE appeals only the decision by the district court that the Parents are entitled to reimbursement because the Loveland placement for school...