Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, Senior District Judge, Presiding D.C. No. 1:09-cv-00197-HG- LEK
The opinion of the court was delivered by: M. Smith, Circuit Judge:
Argued and Submitted October 13, 2011-Honolulu, Hawaii
Before: Diarmuid F. O'Scannlain, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Plaintiff-Appellant K.D., a minor who has been diagnosed with autism, appeals the district court's affirmance of the Hawaii Department of Education (DOE) hearing officer's decision that K.D.'s free and appropriate public education placement complied with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. K.D. also claims that his tuition reimbursement request for the 2007-08 school year was timely, and that Loveland Academy (Loveland) was his "stay put" placement. We affirm the decision of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
The IDEA ensures that "all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The IDEA primarily seeks to make public education available to handicapped children who were previously excluded from any form of public education. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 191-92 (1982). In particular, the IDEA aims to address concerns about the "apparently widespread practice of relegating handicapped children to private institutions or warehousing them in special education classes." N.D. v. Haw. Dep't of Educ., 600 F.3d 1104, 1115 (9th Cir. 2010) (citing Sch. Comm. of the Town of Burlington v. Mass. Dep't of Educ., 471 U.S. 359, 373 (1985)). On the other hand, the IDEA aims to ensure that handicapped children are provided public education appropriate for their needs, and are not "left to fend for themselves in classrooms designed for education of their non[-]handicapped peers." Rowley, 458 U.S. at 191.
A free and appropriate public education (FAPE) is defined as "special education and related services that-(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate pre-school, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title." 20 U.S.C. § 1401(9). In order to provide children with a FAPE, schools and parents work together to develop an individualized education program (IEP). Schaffer v. Weast, 546 U.S. 49, 53 (2005). An IEP is defined as a "written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title." 20 U.S.C. § 1401(14). The IEP is, in effect, a "comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs." Burlington, 471 U.S. at 368.
A state must comply both procedurally and substantively with the IDEA. Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 881 (9th Cir. 2001). While the IDEA does not define the particular substantive level of education that must be provided to a child, the state must provide an education that is "reason-ably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07. The IDEA focuses on a set of extensive procedures that must be followed in formulating an IEP for a particular child. See 20 U.S.C. § 1414. In addition, the IDEA sets forth a set of procedural safeguards that help ensure that a child receives a FAPE. See id. § 1415. A child may file a timely complaint and request a due process hearing for any violation of the IDEA. Id. § 1415(b), (f). During the pendency of the due process hearing, the child is entitled to stay put at his "then-current educational placement," regardless of the eventual outcome of the hearing. Id. § 1415(j).
K.D. is a ten-year-old boy who has been diagnosed with moderate to severe autism. In November 2006, K.D.'s mother, C.L., enrolled him at Loveland, a private school, after he spent his kindergarten year in public school. Subsequently, C.L. filed a request for a due process hearing with the DOE. The DOE and C.L. settled the due process request on March 23, 2007. As part of the settlement agreement, the DOE agreed to pay K.D.'s tuition at Loveland for the 2006-07 school year. In addition to the dismissal with prejudice of the hearing request, C.L. agreed to sign consent forms allowing DOE employees to conduct observations of K.D. at Loveland, and to obtain K.D.'s 2006-07 education records. The settlement agreement also required C.L. to "participate in transition planning for [K.D.] to a Department of Education public school at the end of the 2006-07 school year, if appropriate."
Accordingly, on April 5, 2007, the DOE held the first IEP meeting for K.D. for the 2007-08 school year, with both C.L. and the Loveland placement director in attendance. At the meeting, the parties agreed to continue the meeting until July 2007 due to time constraints. After this initial meeting, the DOE conducted one visit at Loveland on April 19, 2007 to observe K.D. Subsequently, C.L. sent a letter to the DOE placing limitations on future observations of K.D. because she felt that the April 19, 2007 visit had been disruptive to him. The DOE objected to C.L.'s limitations because they did not comply with the settlement agreement, and because it needed to perform assessments in order to prepare for the upcoming IEP meeting. After several delays caused by C.L.'s cancellations of scheduled tests, the tests finally took place in July 2007.
On June 28, 2007, the DOE sent C.L. a letter proposing dates for the continued IEP meeting, and stating that the meeting would be held on July 25, 2007 if C.L. failed to respond. Having received no response to its June 28, 2007 letter, the DOE sent C.L. another letter on July 13, 2011 informing her the meeting would be held on July 25, 2007. On July 25, 2007, the DOE held the second IEP meeting without either C.L. or Loveland's director being in attendance. The DOE finalized the IEP for K.D. for the 2007-08 school year, and sent it to C.L. on July 31, 2007, as the child's FAPE, placing him at Pearl Harbor Kai Elementary School in a small classroom setting.
C.L. did not respond, and re-enrolled K.D. at Loveland for the 2007-08 school year. The DOE sent C.L. several letters between August 2007 and February 2008 regarding the IEP developed for K.D., and warned C.L. that K.D.'s continued enrollment at Loveland was a unilateral decision made by her alone, and that the DOE would not be responsible for any tuition payments or reimbursement for K.D.'s 2007-08 school year enrollment at Loveland. On February 27, 2008, over seven months after the IEP offer was made by the DOE, C.L. finally responded that K.D.'s enrollment at Loveland was not unilateral, and requested that the DOE make tuition payments for K.D. C.L. and the DOE exchanged several letters in which they disagreed concerning whether K.D.'s enrollment at Loveland was unilateral. No due process hearing request was filed by C.L. at that time.
The DOE subsequently began preparing for K.D.'s 2008 IEP. The DOE sent letters to C.L. requesting K.D.'s progress reports from Loveland, and C.L.'s written consent to observe K.D. at Loveland. No written consent was provided to the DOE, though C.L. later testified that she gave the DOE verbal consent. On July 10, 2008, the DOE sent C.L. a letter proposing dates for the 2008 IEP meeting, and stating that the meeting would be held on July 25, 2008 if C.L. failed to respond. Due to another failure to respond, the 2008 IEP meeting was held on July 25, 2008 without either C.L. or Loveland's director being in attendance. The DOE sent the proposed 2008 IEP to C.L. on August 6, 2008, offering placement at Pearl Harbor Kai for the 2008-09 school year. On August 29, 2008, K.D. filed the request for a due process hearing that is at issue in this appeal.
A. Proceedings Before the Administrative Hearing Officer
The administrative hearing officer issued a written decision on April 3, 2009, in which he concluded that the proposed 2007 IEP was a FAPE. The hearing officer found that the 2007 IEP offered K.D. the following services: 1,530 minutes of special education per week, 1,350 minutes of speech-language therapy per quarter, 540 minutes of occupational therapy services per quarter, and transportation services. Supplemental services were also ordered for K.D., including individualized instructional support during school of 6.25 hours per week, behavioral instructional support services for four hours per week, and a 1:1 paraprofessional support after school for two hours, five times a week. The hearing officer also concluded that the individualized instructional support during school and 1:1 paraprofessional support after school met K.D.'s need for a 1:1 trainer.
Similarly, the hearing officer concluded that the 2008 was a FAPE. The 2008 IEP offered K.D. the following services: 1,740 minutes per week of special education during school and 950 minutes per week after school, 60 minutes of occupational therapy per week, 200 minutes of speech-language therapy per week, and transportation services. Additional services offered included 1,800 minutes of paraprofessional services per week during school and 950 minutes per week after school, four hours of behavioral support services per week, and one hour of parent training per month.
The hearing officer also dismissed K.D.'s claims for tuition reimbursement for the 2007-08 Loveland school year because K.D.'s enrollment at Loveland after the 2006-07 school year had been a unilateral placement, and the reimbursement request, filed over a year after the placement, was untimely.
B. Proceedings in District Court
K.D. filed a timely appeal of the administrative decision in the district court. The primary issues presented to the district court were: (1) whether the DOE's placement of K.D. at Pearl Harbor Kai for the 2007-08 and 2008-09 school years was a denial of a FAPE, and (2) whether IDEA's stay put provision applied to keep K.D. at Loveland during the 2007-08 and 2008-09 school years. The district court affirmed the hearing officer's conclusion that the IEPs offered in 2007 and 2008 were sufficient to constitute a FAPE. The district court also affirmed that the request for reimbursement for the 2007-08 school year was untimely because K.D.'s enrollment at Loveland was unilateral. Finally, the district court held that Loveland was not K.D.'s stay put placement.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo the district court's decision that the school district complied with the IDEA. N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir. 2008). However, we must give "due weight" to judgments of education policy when reviewing state hearings and must take care to "not substitute [our] own notions of sound educational policy for those of the school authorities [we] review." Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996) (internal citation omitted). The extent of deference given to the state hearing officer's determination is within our discretion. Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d 1004, 1009 (9th Cir. 2009). We give deference to the state hearing officer's findings particularly when, as here, they are thorough and careful. Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
We review the district court's factual determinations for clear error, even when based on the administrative record. J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010). A finding of fact is clearly erroneous when the evidence in the record supports the finding but "the reviewing court is left with a definite and firm conviction that a mistake has been committed." Burlington Northern, Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983).
K.D., as the party challenging the district court's ruling, bears the burden of proof on appeal. Ms. S. ex rel. G. v. Vashon Island Sch. ...