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DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS DEPARTMENT OF EDUCATION, STATE OF HAWAI`I, Respondent. FINDINGS OF FACT,
CONCLUSIONS OF LAW AND DECISION
CHRONOLOGY OF CASE
On or about May 11, 2007, Parent #1 filed a request for an impartial hearing on behalf of self and Student (collectively referred to as “Petitioners”). The request was duly transmitted by the Department of Education, State of Hawai`i (“Respondent” or “DOE”) to the Office of Administrative Hearings, Department of On June 12, 2007, the pre-hearing conference in the above-captioned matter was conducted by the undersigned Hearings Officer. Petitioners were represented by Matthew C. Bassett, Esq. Respondent was represented by Aaron H. Schulaer, Esq. The hearing was scheduled to convene on October 8, 9, 10, 11, and 12, 2007. The Hearings Officer granted the parties’ request to extend the forty-five day period specified by Hawai’i Administrative Rules (“HAR”) §8-56-77(a), from July 25, 2007 to November 13, 2007. On October 8, 2007, the hearing in the above-captioned matter was convened by the undersigned Hearings Officer. Parent #1 was present and represented by Mr. Bassett. Respondent was represented by Mr. Schulaner. The DES was present. The hearing was reconvened on October 9, 10, and 11, 2007. Petitioners were represented by Mr. Bassett. Parent #1 was present on October 9, and 11, 2007. Respondent was represented by Mr. Schulaner. The DES was present on October 9, and 10, 2007. The DRT was present on October 11, 2007. At the close of the hearing, the parties agreed to submit written closing briefs by November 14, 2007. Based on the parties’ request, the forty-five day period specified by HAR §8-56- 77(a), was extended from November 13, 2007 to December 10, 2007.
II. ISSUE
Whether the February 23, 20071 Individualized Education Program (“IEP”) offered Student a Free Appropriate Public Education (“FAPE”). FINDINGS OF FACT
Student is __ years old and qualifies as a student with a disability under the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) in the category Student has a complex emotional, educational, and life history. Student was born in ________. Student came to Hawai`i in May 2002 at age 4, with Student’s birth mother and step-father. Student was raised in a bi-lingual environment. Student spoke a foreign language and was learning English. Student was removed from Student’s home by Child Protective Services in early 2003. On January 9, 2003, the Department of Human Services obtained custody of Student. Student’s removal was based on domestic violence in the home and physical abuse of Student by birth mother. Student has an extremely distressing recollection of life with Student’s birth mother. Student fears birth mother and does not want any physical contact with her. Student does not even want to discuss life with birth mother or any of the people or places associated with that phase of Student’s life. After Student’s birth mother lost custody of Student, Student was placed in four foster homes and two emergency shelters during the next two years. No significant behavioral concerns were reported by Student’s first foster mother. Student’s second foster mother reported that Student was aggressive with younger children in the home and had 1 Petitioners filed their request for hearing on May 11, 2007. The request for hearing disputes Student’s current IEP. At the time Petitioners filed their request for hearing, Student’s current IEP was the IEP dated September 26, 2006; October 16, 2006; November 16, 2006; December 4, 2006; December 18, 2006; February 23, 2007. delayed social skills. Student’s verbal skills and understanding were also reported to be very poor.2 In January 2005, Student became Parents’ foster child.3 Parents reported that Student’s emotional state began to decline in April 2005. Student began exhibiting strange behaviors – constantly hiding, wearing a basket on Student’s head during dinner, and engaging in stereotypic play with themes of trauma and violence. Student’s aggressive behaviors and periods of agitation increased and Student became aggressive and defiant to Student assaulted Parent #1 and was admitted to Hospital #14 on June 7, 2005. On June 9, 2005, Student was transferred to the Psychiatric Hospital and remained there until June 22, 2005. On June 22, 2005, Student transitioned to hospital based residential On June 26, 2005, a doctor at the Psychiatric Hospital diagnosed Student with Autistic disorder and Psychotic disorder. It appears that Student left hospital based residential treatment and returned to On July 15, 2005, Student’s Psychiatrist evaluated Student and made the disorder5 from extreme neglect and possible Student’s current IEP will be referred to as the February 23, 2007 IEP. 2 Parent #1 testified that prior to their custody of Student, Student lived in a foster family where Student’s foster father was arrested and indicted for sexual abuse. In that foster home, Student was one of several male foster children living with the foster father. It is unknown whether Student was sexually abused by his/her foster father in this instance. Student is believed to have witnessed incidents of sexual abuse of other boys in this foster home. 3 Parents are not Student’s biological mother and father. They are in the process of adopting Student. 4 Hospital #1 is a medical center that specializes in the treatment of women and children. 5 Post traumatic stress disorder (“PTSD”) is an anxiety disorder that can develop after exposure to a terrifying event or ordeal in which grave physical harm occurred or was threatened. Traumatic events that may trigger PTSD include violent personal assaults, natural or human-caused disasters, accidents, or military combat. People with PTSD have persistent frightening thoughts and memories of their ordeal and feel emotionally numb, especially with people they were once close to. They may experience sleep problems, feel detached or numb, or be easily startled. Speech delay secondary to poor language instruction and bilingual Learning disorder NOS, Bilingual language delay Rule out fetal alcohol and drug exposure effects foster care placement, termination of parental rights and impending deportation of parents (i.e., birth mother and step-Parent #2). Poor social skills, language skill, speech, and fine motor skills instruction, Student was prescribed Risperdal at this time. According to Parent #1, the medication helped stabilize Student’s moods and emotions, and normalized Student’s behaviors. In December 2005, Student changed medications from Risperdal to Abilify and continued to make improvements in Student’s moods and behaviors. On September 30, 2005, the Department of Human Services received permanent custody of Student. Parents are Student’s prospective adoptive parents. Student began attending the Private School6 in December 2005, as part of a settlement agreement between the Surrogate Parent and the DOE. Prior to attending the Private School, Student attended the following schools: From August 2002 to early January 2003 – Student attended kindergarten at DOE School #1 (fourteen absences were noted during the second quarter of From January 2003 to August 2003 – Student completed kindergarten From late August 2003 to late October 2003 – Student attended first 6 The Private School is a nationally accredited day treatment facility for children with developmental disorders. The Private School is accredited by the Commission on Accreditation of Rehabilitation Facilities (“CARF”). CARF-accredited programs and services have demonstrated that they substantially meet internationally recognized standards and that the organization has made a commitment to continually enhance the quality of its services and programs. 7DOE School #1, #2, #3, #4, #5, #6, and the Home School are all DOE public elementary schools. From late October 2003 to early December 2003 – Student attended From December 2003 to early January 2004 – Student attended first and attended the first semester of second grade at DOE School #6; From January 2005 to December 2005 – Student completed second grade and began third grade at the Home School; and From December 2005 to May 2007 – Student attended the Private At the Private School, Student received special education services in an inclusion classroom that served typically developing children and children with special needs. Student and Student’s five classmates received instruction through the Montessori and Orton-Gillingham methods. Since attending the Private School, Student made tremendous progress in social skills, peer interactions, academic skills, and language According to the Private School’s initial trans-disciplinary team assessment compiled on January 12, 2006, Student had global delays in all developmental areas - cognitive, linguistic, sensory, social, and emotional. In January 2006, at age 8, Student was determined to have the overall functioning of a 4-5 year old child. Student had tic-like (stereotypic repetitive) behaviors, such as taking off Student’s shoes and hitting various objects repeatedly, that were so perseverative and severe, that Student appeared to have an Significant motor delays - Student could barely walk because marble floors and had delays in auditory, tactile, visual, vestibular, and multi-sensory processing and severe deficits in Student’s abilities to process and/or tolerate sensory Significantly delayed oral motor skills – Student drooled when excited and when speaking, Student slurred his/her speech, and was often completely unintelligible, Student’s speech and language skills were also seriously delayed. Student never learned Student’s first language; ________. In one of Student’s foster homes, Student was exposed to a Micronesian dialect for about a year, because the other foster children in the home were Micronesian. Student was exposed to the English language for the past two years, and can comprehend and speak English at the pre-school level. Student’s language skills are improving, but Student does not have the linguistic foundation to receive academic instruction in the traditional auditory-oral manner. Student’s academic instruction needs to be at a kindergarten level, except in those areas that Student can be drilled in, such as phonics and sight words. Student can perform at the first grade level in those areas. It is unknown whether Student’s delays and mental health problems were related to psychological abuse and neglect, whether Student was physically injured as an infant by Student’s birth mother and/or step-father, or whether Student had neuro- developmental disorders which caused developmental delays from birth, as a result of in utero drug/alcohol exposure, and was then abused. According to the Private School, Student’s strengths include at least average non-verbal intelligence. However, due to Student’s severe processing deficits, Student had difficulty demonstrating Student’s abilities. Among other things, Student’s strengths were that Student loved to learn, craved knowledge, and asked questions when Student did not understand something. Student could focus on Student’s work when challenged or interested, wanted to please Student’s teacher, and was able to work in groups with peers. Student was well-liked by peers and adults and could take turns and share materials. Student displayed no negative behavior since attending the Private School, except for occasional, playful, taunting with peers. When reading, Student’s ability to recognize sight words and sound out words is about one year behind Student’s same age peers. Student is learning On the other hand, Student’s areas of concern are that Student is emotionally fragile and at-risk since Student’s recent hospitalization, and Student’s PTSD and Psychotic disorders. Student is considered to be at great risk for a relapse. Some symptoms to watch for are: hyperactivity/increased agitation, paranoia/fearfulness, complaining, argumentative behavior, perseveration (e.g., a behavior that is repeated obsessively; such as Student constantly playing with Student’s hair), interrupting, breaking known rules, disobeying commands, being self-critical or anxious, having low-frustration tolerance, echolalia, repeating data such as historical dates, weather reports, and phone numbers excessively, and non-compliance. According to Student’s previous psychiatric reports, the primary triggers for the above-behaviors are: fear; inconsistency; lack of challenge/motivation; seeking attention; compulsiveness; feelings of desperation; curiosity; being threatened; cluttered, unpredictable, and/or ever-changing environment; being misunderstood; feeling that excessive demands are being placed on him/her; and being reprimanded, especially using an aggressive tone of behaviors include: life change/loss; post traumatic stress; chemical imbalance; poor interpersonal skills, abuse; lack of nurturing; unresolved grief; poor self-esteem; and old, negative messages. Student continues to be emotionally fragile. Until Student’s psychiatrist determines that Student is no longer at risk for these behaviors, it is important that Student is surrounded by supportive, nurturing adults who have expertise and experience working with children with PTSD, in an environment which Student feels secure in. Mental health strategies and teaching methods should be an integral part of Student’s day, and infused in all activities and instructional tasks. Student needs to feel good about self and others in Student’s environment in order to overcome the trauma (and all its residuals) Student has suffered at such a young age. The Private School teachers and personnel who work with and/or observe Student have noted the following deficits: A lack of understanding of social interaction and in reciprocity skills Lack of theory of mind skills, and understanding the motivations of Inability or poor ability to take the perspective of another individual or to fully understand what another individual is feeling; Lack of self-awareness of Student’s own behaviors and feelings; Poor understanding and interpretation of non-verbal social cues (i.e., body language, voice pitch, tone, inflection, loudness, facial expression, and eye contact); choosing appropriate responses, difficulty adjusting responses to fit situation or the behavior of other individuals; Verbal self-stimulation and immature repetition of words or phrases (i.e., engaging in non-meaningful babble); and On April 11, 2006, an IEP meeting was convened for Student. IEP Team (“Team”) members included the Home School Principal, the Home School SPED Teacher, Parent #1,8 a counselor, an occupational therapist, a regular education teacher, a speech pathologist, a district resource teacher, and a school based behavioral health specialist. According to the April 12, 2006 Prior Written Notice (“PWN”), Student would receive special education, counseling, speech language therapy, daily transportation, Extended School Year (“ESY”) services, 1:1 adult support, and the services of an Intensive Instructional Services Consultant (“IISC”). Pursuant to the April 11, 2006 IEP, Students services would begin on April 13, 2006 and end on April 11, 2007. Currently, Student was attending the Private School pursuant to an agreement between the DOE and the Surrogate Parent. The April 13, 2006 PWN further stated that during the remainder of the 2005- 2006 school year and ESY, Student would receive Student’s program and services at the Private School. During the 2006-2007 school year, Student would: 1) not participate with students without disabilities for language arts, math, science, social studies, counseling, occupational therapy, and speech language therapy; and 2) would receive Student’s program and services at a DOE public school campus in a special education setting. On August 3, 2006, an IEP meeting was convened for Student.9 The meeting agenda stated that the purpose of the meeting was to review Student’s IEP [review current 8 At this point in time, in IEP meetings, Parent #1 was referred to as the “foster parent”. The Surrogate Parent was responsible for Student’s educational decisions. 9 Team members included the Home School Principal, the DRT, a 4th grade teacher, the Home School SPED Teacher, a speech pathologist, a behavioral specialist a DOE school psychologist, an occupational therapist, a Department of Human Services social worker, the Surrogate Parent, Mr. Bassett, Parent #1, the School Social Worker, a student services coordinator, a DOE district educational specialist, the Intensive In-Home Therapist, Parent #1’s advocate, a school counselor, a Department of Health coordinator, the Private School Clinical Director, an EPIC program director, and a facilitator from the Mediation Center of the Pacific. goals and objectives, develop Present Levels of Educational Performance (“PLEP”), update goals and objectives, ESY, services, accommodations, modifications, supplemental services, Hawai`i State Assessment, Least Restrictive Environment (“LRE”) statement], and offer a FAPE), discuss transfer plan, and review meeting notes. According to the August 3, 2006 IEP Meeting Information & Notes, the Surrogate Parent10 disagreed with the agenda and the purpose of the August 3, 2006 meeting agenda. The Surrogate Parent stated that the purpose of the August 3, 2006 IEP meeting was to develop Student’s annual IEP. The DOE members of the Team stated that Student’s annual IEP was developed on April 11, 2006. According to the August 3, 2006 PWN, a re-evaluation of Student was necessary to determine Student’s current level of functioning and programming needs, and to monitor Student’s learning progress over time. Assessments completed by the Private School in November 2005 to January 2006 would also be considered by the DOE. The DOE would conduct: a social history report with adaptive behavior scale, a cognitive assessment, an occupational therapy assessment, a speech language assessment, an academic assessment, and a behavior assessment and classroom observation. On August 17, 2006, an IEP meeting was convened for Student. The Team members who attended the August 3, 2006 IEP meeting also attended this meeting. Additional Team members included the DOE Complex Psychologist, and a recorder from the The August 17, 2006 IEP Meeting Information and Notes stated that there was a disagreement between the DOE, Surrogate Parent, and Parent #1, with the IEP developed on April 11, 2006. At this meeting, the Home School Principal reiterated the offer of a FAPE to Student and stated that the DOE would be conducting the following assessments of Student at the Private School – cognitive, occupational therapy, speech language, academic, behavior and classroom observation. The Team discussed various assessment tools and agreed that if the DOE wanted to use an assessment tool that had not been discussed at this meeting, that tool would need to be approved by the Private School Clinical Director. No By letter dated September 1, 2006, the Home School Principal informed Parent #1 that the September 5, 2006 IEP meeting would be rescheduled so that a new IEP could be developed for Student; and the DOE would continue to pay for Student’s current IEP related services at the Private School while Student’s new IEP was being developed. During the 2006-2007 school year, Student was evaluated by the DOE. This included an academic assessment, a behavior assessment, a social/family update and adaptive behavior assessment, and an intellectual evaluation. The academic assessment11 was conducted on September 7, and 12, 2006. Puts forth good effort in testing sessions; Able to identify and write various upper and lower case letters Able to match a pictographic representation with an actual vocabulary of a seven year old student; and Able to identify the number of items in a given picture. Further expansion of sight words through the use of picture/ context clues, cloze procedures, and word/vocabulary games; and otherwise identify the letters that make certain sounds. This may assist Student with The implications for learning: Student had difficulties in understanding orally presented instruction and may need additional time to process auditory information. Student should be given the following accommodations: supplement auditory information and/or the opportunity to paraphrase orally presented information so that the teacher may check Extended time to complete tasks and assignments; 10 The Surrogate Parent did not testify at the hearing. The evidence relating to the purpose of the August 3, 2006 IEP meeting is limited to the documentary evidence. 11 Student was administered the Woodcock Johnson – III Tests of Achievement (“WCJ-III-Achievement”). The WCJ-III-Achievement is a measure of academic achievement that tests basic reading skills, reading fluency, reading comprehension, oral expression, listening comprehension, math reasoning, math fluency, math calculation skills, basic writing skills, and writing fluency. Student’s reading, writing, and math material Require Student to go through math assignments and highlight or otherwise mark the operation of each problem before Student begins to solve the Have Student reread what Student has written to see if it makes Student has difficulties with activities involving written expression, and may benefit from the use of a word bank to increase writing with The behavior assessment was conducted on or about September 12, 2006 by the DOE Complex Psychologist. The sources of information reviewed included previous Behavior Assessment System for Children second edition (“BASC-II”) ratings, a BASC-II Student Observation System (“BASC-II SOS”)12 completed by the DOE Complex Psychologist, the BASC-II Teacher Rating Scale completed by Student’s Teacher and Student’s Skills Trainer,13 and the BASC-II Parent Rating Scale completed by Parent #1 and a. The results of the BASC-II SOS showed that Student engaged in adaptive behaviors 100% of the time. No problematic behaviors were observed by the DOE 12 The BASC-II SOS is a systematic coding and recordation of a child’s behavior (3 second intervals spaced 30 seconds apart during a 15 minute observation period). The BASC-II SOS was a direct recording of Student’s classroom behavior. 13 Student’s Skills Trainer is with Student throughout the entire school day. Student’s Skills Trainer is responsible for, among other things, implementing his IEP under the supervision of the teacher and the IISC, prompting and redirecting him at appropriate times, and taking data on his behaviors. 14 The BASC-II Teacher Rating Scale and Parent Rating Scale are used to: 1) gather information on levels of behavioral concern; and 2) measure adaptive skills in the home and school settings. Teachers and other school personnel and parents complete the rating scale based on their observations and knowledge of a child. The child is rated by Student’s teacher and parents in the following areas: 1) externalizing behaviors - hyperactivity, aggression, and conduct problems; 2) internalizing behaviors - anxiety, depression, somatization, atypicality, withdrawal, and attention problems; and 3) adaptive skills - skills that are used in everyday life, including adaptability, social skills, leadership, activities of daily living, and functional communication. In addition, teachers and school personnel rate the child on school problems – attending problems and learning problems. b. The results of the BASC-II showed that Student was exhibiting clinically significant levels of concern with regard to problematic or maladaptive behaviors in the home setting and at-risk levels of concern in the school setting. At risk behaviors indicate impaired functioning. Clinically significant behaviors indicate a higher level of impaired functioning than at-risk behaviors. Externalizing behaviors – in the home setting, Student showed at-risk to clinically significant concerns with regard to hyperactivity (a tendency to be overly active, rush through work or activities, and act without thinking), aggression (a tendency to act in a hostile manner – either physical or verbal – that is threatening to others), and conduct problems (a tendency to engage in rule-breaking behavior). In the school setting, Student’s Skills Trainer indicated an at-risk level of concern with regard to aggression and conduct problems; Internalizing behaviors – in the home setting, according to Parent #2, Student showed an overall at-risk concern in depression (feelings of unhappiness, sadness, and stress). Concerns were not noted in Student’s Teacher, Student’s Skills Trainer, or Parent #1’s ratings in this area; School problems – Student’s Skills Trainer noted an at-risk level of concern with regard to learning problems (presence of academic difficulties, particularly understanding and completing work); Other behavioral concerns – Parents noted a clinically significant level of concern with atypicality (a tendency to behave in ways that other people consider “odd”). All four raters noted an at-risk level of concern with attention problems (a tendency to be easily distracted and unable to concentrate more than momentarily). Parents and Student’s Skills Trainer noted an at-risk level of concern with withdrawal (a tendency to evade others to avoid social contact). With regard to study skills (the skills conducive to strong academic performance, including organizational skills and good study habits) Student’s Teacher and Student’s Skills Trainer noted an at-risk level of concern; Adaptive skills – Parents note that Student’s adaptive skills are all in the at-risk or clinically significant level of concern. Student’s Teacher and Student’s Skills Trainer noted the majority of Student’s adaptive skills to be in the at- risk and/or clinically significant level of concern. Student needs support to develop (6) Functional communication (the ability to express ideas and communicate in a way others can easily understand) was of clinically significant concern in both the home and school setting; (7) Social skills (the skills necessary for successful interaction with peers and adults) were noted at an at-risk level of concern in the home and school (8) Leadership (the skills associated with accomplishing academic, social or community goals) was of clinically significant concern in the school setting15 and at-risk concern in the home setting; (9) Adaptability (the ability to adapt readily to changes in the environment) was noted to be a strength in the school setting and at an at-risk level of Activities of daily living (the skills associated with performing basic everyday tasks in an acceptable and safe manner) fell into the at-risk to clinically significant level of concern in the home setting. Implications for learning: Student continued to demonstrate with at- risk to clinically significant levels of behavioral concerns. This suggests a continued need The Social/Family Update and Adaptive Behavior Assessment Report were completed on September 13, 2006 and updated on October 16, 2006 by the School Social Worker. The update was prepared by reviewing Student’s school file and contacting Department of Human Services case worker, and Student’s former therapist. The Adaptive Behavior Assessment Report included Parent #1, Student’s Teacher, and Student’s Skills Trainer completing the Adaptive Behavior Assessment System – second edition (“ABAS- a. According to Student’s Teacher and Student’s Skills Trainer, over-all adaptive functioning, including communication, functional pre-academics, self-direction, 15 However, Student’s Skills Trainer lists this as an area of relative strength for Student. 16 The ABAS-II is a rating scale of adaptive skills completed by a child’s teacher and other school personnel and the child’s parents. The adaptive skills areas to be rated include: communication, community use, functional academics, school living, health &safety, leisure, self-care, self-direction, and social. self-care, home living, community use, and health & safety, were in the extremely low range. The leisure and social domains were noted to be a relative strength for Student. The two adaptive skill areas of most concern were in the areas of communication and self-care;17 b. According to Parent #1, Student’s deficits were in the self-direction c. Implications for learning: continue to address Student’s adaptive behaviors, especially communication and self-care, in the school setting. If deemed appropriate, the adaptive skills relating to the areas of social and self-direction, may be addressed in the home setting with the assistance of an intensive in-home therapist. The intellectual evaluation18 was conducted on September 25, 2006. A 20 minute classroom observation of Student had previously been completed on September 15, The ability to follow established routines with minimal Responds positively to verbal praise and prompts from familiar Able to sustain attention during individual seat work; responds 17 Student’s Teacher and Student’s Skills Trainer responded “sometimes” and/or “never” with regard to Student on the following areas of the ABAS-II: 1) Communication – a) shakes head “yes” or “no” in response to a simple question; b) uses sentences with a noun and a verb; c) looks at others’ faces when they are talking; d) follows verbal instructions when undertaking tasks or activities; e) speaks clearly and distinctly; and f) listens closely for at least five minutes. 2) Self-care – a) blows and wipes nose with a tissue or handkerchief; b) wears correct clothes for warm or cold days; c) uses a fork to eat solid food; and d) fastens and straightens clothing before leaving the restroom. 18 The Wechsler Intelligence Scale for Children – fourth edition (“WISC-IV”) was administered to Student. The WISC-IV measures cognitive ability and provides five composite scores. These scores include the Full Scale Intelligence Quotient (“FSIQ”), the Verbal Comprehensive Index (“VCI”), the Perceptual Reasoning Index (“PRI”), the Working Memory Index (“WMI”), and the Processing Speed Index (“PSI”). The FSIQ represents the child’s overall cognitive ability and is derived from the four indices (which include ten core subtests). The VCI measures verbal abilities through reasoning, comprehension, and conceptualization; the PRI measures perceptual reasoning and organization. The WMI measures attention, concentration, and working memory. The PSI measures speed of mental and graphomotor processing. Overall average score on the Comprehensive Test of Nonverbal Overall working memory score as measured by the WISC-IV Overall speed of visual processing as measured by the WISC- Average verbal concept formation as measured by the WISC- (10) Average ability to analyze and synthesize abstract visual stimuli There is considerable variability in Student’s intellectual assessment results; Student’s scores ranged from average to extremely low/deficient; Overall verbal reasoning skills as measured by the WISC-IV Overall non-verbal reasoning skills as measured by the WISC- The implications for learning: the results of this assessment and prior assessments conducted by the Private School suggested that Student will continue to experience significant difficulty in understanding new information/curriculum, in addition to making connections with previously learned material. On September 26, 2006, an IEP meeting was convened for Student.20 The Team discussed the social family update and adaptive behavior assessment report. Future IEP meetings were scheduled for October 16, 2006 and November 16, 2006. During the next meeting the academic assessment, classroom observation, behavioral assessment, social history, and occupational therapy assessment would be discussed, along with eligibility and a review of the IEP. No PWN was issued for this meeting. 19 In addition to administering the WISC-IV to Student, the evaluator also reviewed some of Student’s previous testing performed by the Private School, including the CTONI. 20 Team members included the Home School Principal, a student services coordinator, the Home School SPED Teacher, a regular education teacher, a speech pathologist, a school based behavioral specialist, the DOE Complex Psychologist, a DOE district educational specialist, the School Social Worker, a therapist, Parent #1’s advocate, Parent #1, the Intensive In-Home Therapist, the Surrogate Parent, Private School Director, a DOE school psychologist, and a facilitator and recorder from the Mediation Center of the Pacific. On October 16, 2006, an IEP meeting was convened for Student.21 The academic assessment, behavioral assessment and classroom observation, occupational therapy assessment, social family update and adaptive behavior assessment report, and the Hawai`i State Writing assessment were reviewed. No PWN was issued for this meeting. On November 16, 2006, an IEP meeting was convened for Student.22 The Team reviewed Student’s continued eligibility for IDEA services. According to the November 16, 2006 PWN, the Team determined that Student continued to be eligible for special education and related services under the category of _______________. Student was no longer eligible under Developmental Delay (ages 6-8) because Student was presently 9 years old. _________________ best described Student’s disability because it impacts Student’s speech and language and Student’s ability to learn. On November 16, 2006, the Team updated Student’s IEP and reviewed the PLEP. Parent concerns stressed that consistency in Student’s educational setting was imperative based on Student’s mental health issues because of Student’s multiple school and home disruptions. Parent #1 stated that he/she would like to see Student continue to receive Student’s services at the Private School. The next IEP meeting was scheduled for December 4, 2006, to complete the IEP and discuss placement. On December 4, 2006, an IEP meeting was convened for Student.23 Student’s IEP was updated. According to the notes taken by the Mediation of the Pacific recorder, the Team accepted the goals and objectives as written. The number of minutes Student would receive for counseling and speech language therapy were increased. According to the December 4, 2006 PWN, Student received the following: 1) 1620 minutes per week of special education – specialized instruction in a small structured classroom; 2) 1:1 adult support - for safety reasons, to help Student stay on task, and for 21 The Team members who attended this meeting also attended the September 26, 2006 IEP meeting. Additional Team members included a Department of Human Services social worker, a co-therapist, an IISC/speech pathology assistant from the Private School, Student’s Teacher, and Student’s guardian ad litem (via telephone). 22 Team members included those individuals who attended the October 16, 2006 IEP meeting, with the exception of the Private School Director. The Private School IISC/speech pathologist assistant, the co-therapist, and the Department of Human Services social worker did not attend this meeting. 23 Team members included the Home School Principal, the Home School SPED Teacher, a regular education teacher, a speech pathologist, the DRT, the DOE Complex Psychologist, a school based behavioral health specialist, the Surrogate Parent, Parent #1, Parent #1’s advocate, an OTR, the Intensive In-Home Therapist, the Private School Director, the Department of Human Services social worker, a Department of Health clinical director, and a facilitator and recorder from the Mediation Center of the Pacific. redirection; 3) language arts (reading and writing), math, science, and social studies in the special education setting – Student’s academic deficits require a small group or individualized setting; 4) 1080minutes per quarter of counseling – to deal with Student’s emotional and behavioral conditions that are impacting Student’s progress; 5) 270 minutes per quarter of occupational therapy – to address Student’s sensory, vestibular, perceptual, and motor needs; 6) 520 minutes per quarter of speech language therapy – needed to improve Student’s speech and language abilities; 7) daily transportation; 8) medication monitoring – to ensure that Student’s medication is appropriate and effective; and 9) an IISC to direct the 1:1 adult support in the areas of emotional and behavioral concerns. The December 4, 2006 PWN did not mention placement or a placement The December 4, 2006 IEP meeting notes compiled by the Mediation Center of the Pacific recorder, stated that the projected beginning dates and ending dates for Student’s IEP services will be determined and added to the IEP after the PWN is issued. The Mediation Center of the Pacific recorder’s notes lists the word “placement” but did not reflect any information about a discussion of Student’s placement or a placement location on On December 18, 2006, an IEP meeting was convened for Student.24 According to the December 18, 2006 IEP Meeting Information & Notes, the Team reviewed Revisions to the IEP and Parent #1 acknowledged these changes. At this meeting, the annual IEP review date was changed from April 11, 2007 to December 18, 2007. On December 18, 2006, the Team discussed Student’s placement. The DOE members of the Team proposed that Student be placed in a fully self-contained special education classroom at a DOE site. A specific school location was not determined on this date. The DOE members of the Team proposed that Student transfer from the Private School to a DOE school in May or June 2007 and presented a draft transfer plan. On December 18, 2006, the Team agreed that Student would stay in Student’s current location at the Private School at least through May 2007. Another meeting would be scheduled to discuss options for a placement location, setting, staff, and a transfer plan. The 24 Team members included the Home School Principal, Home School SPED Teacher, a student services coordinator, a regular education teacher, a speech pathologist, an occupational therapist, a school based behavioral health specialist, the DOE Complex Psychologist, Parent #1, Parent #1’s advocate, the Intensive In-Home Therapist, the Department of Human Services social worker, a Department of Health clinical director, and a facilitator and recorder from the Mediation Center of the Pacific. Home School Principal agreed to notify Parent #1 of suggested placement locations two weeks prior to the next meeting, so Parent #1 could visit the proposed school locations. No PWN was issued for the December 18, 2006 IEP meeting. The next IEP meeting was On February 20, 2007, the Private School prepared a multi-disciplinary team update in response to the DOE’s plan to transfer Student from the Private School back to a DOE school. The Private School update included the following information: Student’s status (progress, factors contributing to gains made; factors that might interfere with treatment, etc.). Student attended the Private School for approximately 17 months and made significant progress in all areas of development - cognitive, social, emotional, academic, linguistic, sensory, and motor. The following were noted as critical factors that have contributed to Student’s progress and mental health the overall level of trust that Student established since beginning at the Private School appeared to be the most significant factor that has allowed Student to increase and maintain an appropriate level of mental health stability at the Private the Private School’s low student to teacher ratio contributed to Student’s level of trust and Student is familiar with nearly all staff and peers in this the Private School’s small, intimate campus allowed Student to feel comfortable and safe navigating the campus independently under visual supervision. Student was mature enough to accept this challenge and Student’s behavior has matured, due to Student’s feelings of increased self-confidence, self-worth, and self- Student and Student’s peers have been taught to be socially accepting and non-judgmental in relationships. This “all campus” expectation increased Student’s motivation and willingness to socialize with a corresponding decrease in Nearly all 60+ staff members at the Private School are aware of Student’s individual needs and the key elements of Student’s treatment plan. The Private School Staff have an increased level of sensitivity and insight into appropriate treatment approaches to be used with Student when interacting with him/her. Student has responded extremely well to the attention Student receives from these trained, experienced adults, who work to reinforce the efforts of Student’s primary care team; The Private School staff is also aware of and can identify triggers that lead to Student’s inappropriate behaviors. This allows the staff to prevent an escalation of Student’s behavior by intervening in an appropriate manner before a Student’s classroom has implemented a flexible reward system based on Student’s interests when Student completes a pre-established task or activity; and Personal safety and perceived safety are critical elements to treatment at the Private School. Student is aware of the many safety features, equipment, and practices that have been established at the Private School. Student observes and understands that unfamiliar adults are identified prior to being allowed to proceed on campus, and that the gates on the campus are closed and locked and constantly monitored by the staff. Student feels very safe and protected when Student is at the An opinion as to Student’s readiness to transition out of a day treatment level of care. In a mental health facility like the Private School, best practice regarding the timing of discharge to a lower level of care, is made on the recommendation of the child’s treating physician and/or psychologist. The child’s treating physician and/or psychologist would determine whether the child is medically, physically, and emotionally stable to transfer. At the Private School, the decision to discharge a child to a lower level of care is made by a team of people, including the Private School staff, the parents, and outside providers. At no time would the Private School recommend discharge earlier than what is recommended by the child’s treating physician, unless the child is making no progress and the child’s multi-disciplinary team believes that the child can be more successfully treated Here, none of Student’s treating physicians or providers determined that Student was physically and mentally stable, nor did they recommended discharge from The potential negative outcomes or consequences of moving Student away from an intensive therapeutic community-based day treatment environment too soon. Though it is impossible to make absolute predictions as to potential negative outcomes if a child is discharged too early from day treatment, especially without an appropriate transition plan, research has shown that the best predictor of future behavior is past behavior. Due to Student’s significant history of psychological, educational, and family experiences, Student’s mental health and mental stability are extremely fragile and should constantly be under careful evaluation when conducting significant changes in Student’s routine and lifestyle. Factors specific to this student include: A significant level of abandonment by numerous figures throughout Student’s life. It is a concern that Student may re-experience these feelings if the healthy peer and staff relationships Student developed at the Private School were Student recently had an encounter with Student’s birth mother. Student’s birth mother is banned from seeing Student by a court order. In this instance, the birth mother followed Parent #1 to a shopping mall and opened the car door on the side of the car that Student was sitting. This incident was very upsetting to Student and Student needs to be able to trust people (Parent #1 and the Private School staff) who would protect Student from these types of incidents; and It has taken Student some time to appropriately adjust to the Private School environment, staff, activities, and peers. Behavioral outbursts and miscommunication were present until Student established an appropriate level of trust with staff and peers. Student has gradually grown to understand and adjust to daily routines without displaying opposition, due to Student’s anxieties and fears of the The type of transition plan needed to accomplish a successful transition of Student back to a DOE school. The Private School multidisciplinary completed an extensive assessment of Student’s needs and formulated a comprehensive treatment plan. A transition plan from the Private School back to a DOE school will be initiated when Student’s physicians and psychologists advise that Student is psychologically stable to On February 23, 2007, an IEP meeting was convened for Student.25 According to the February 23, 2007 PWN, the following offer of a FAPE was made: 1) 1620 minutes/week of special education in a fully self-contained classroom on a DOE public school campus for language arts (reading and writing), math, science, and social studies; 2) 1830 minutes/week of 1:1 adult support; 3) 1080 minutes/quarter of counseling; 4) 270 minutes/quarter of occupational therapy; 5) 520 minutes/quarter of speech language therapy; 6) daily transportation; 7) 60 minutes/month of medication management; and 8) 240 According to the February 23, 2007 PWN, no other options were considered for Student. Other relevant factors listed included: 1) Parent #1 requested a full-time person with a bachelor’s degree and experience in working with students with PTSD or Reactive Attachment Disorder26 to provide the 1:1 adult support. It was explained to Parent #1 that assignment of personnel is determined by the DOE and that the person hired by the DOE will meet the requirements for the position that he or she holds. Pursuant to the notes taken by the Mediation of the Pacific’s recorder, the special education and related services pursuant to the February 23, 2007 IEP would be available to Student on a DOE campus beginning March 1, 2007, with a projected ending date of December 18, 2007. The February 23, 2007 IEP listed the beginning date of Student’s services as December 19, 2006 and the ending date of services as December 18, The February 23, 2007 IEP Meeting Information and Notes Parent #1 expressed concerns if Student was to be placed at DOE School #7. These concerns were: 1) there was no school based behavioral health specialist or psychologist at the school; 2) the teacher was inexperienced; 3) there was no full-time fully self-contained special education classroom at the school and Student would be the only child in the class; 4) the qualifications of the 1:1 adult support and how that person 25 Team members included the Home School Principal, the Home School SPED Teacher, the school based behavioral health specialist, a clinical psychologist, a regular education teacher, Student’s Psychotherapist, Parent #1, a student services coordinator, a DOE district educational specialist, a Department of Health, mental health care coordinator, Mother’s advocate, a certified occupational therapist associate, the DOE Complex Psychologist, Student’s Teacher, and a Department of Health clinical director. 26Reactive attachment disorder is the term used to describe those disorders of attachment which arise from a failure to form normal attachments to primary caregiver figures in early childhood. Such a failure would result from unusually early experiences of neglect, abuse, abrupt separation from caregivers after the age of 6 months, but before the age of 3 years old, frequent changes of caregivers, or lack of caregiver responsiveness to child would implement the IEP were unknown; 5) the appropriateness of a transfer back to a DOE school for Student, given the February 20, 2007 report from the Private School; and 6) Crisis Prevention Intervention training was necessary for the 1:1 adult support and other school On February 23, 2007, the Team reviewed the proposed transition plan for Student. Assignment of personnel would be determined at the time of transfer. By letter dated April 11, 2007, the Home School Principal reiterated the February 23, 2007 offer of a FAPE to Parents. The Home School Principal also stated that the Home School would like to provide Student with a smooth transfer from the Private School to a DOE public school. If Parents accepted the February 23, 2007 offer of a FAPE, the Home School would like to begin implementing the transfer plan during the fourth quarter of the 2006-2007 school year. If Parents did not accept the offer of a FAPE, Student would no longer receive special education and related services. CONCLUSIONS OF LAW
The IDEA and HAR Title 8, Chapter 56, require that all students with a disability be provided a FAPE. 20 U.S.C. §§1401(9) and 1414 et. seq. and HAR §8-56-3. A FAPE shall include services that address all of the child’s identified special education and related service needs and must be based on the child’s unique needs, and not based on the child’s disability. The department shall ensure that each student with a disability who resides in the State…is provided a free appropriate public education The services provided to a student under this chapter shall address all of the student’s identified special education and related service The services and placement needed by each student with a disability to receive a free appropriate public education shall be based upon the student’s unique needs and not on the disability. communicative efforts. It is characterized by markedly disturbing and developmentally inappropriate social relatedness in most contexts, beginning before the age of 5 years. Generally a FAPE is provided when the program: 1) addresses the child’s unique needs; 2) provides adequate support services to allow the child to take advantage of educational opportunities; and 3) is in accord with the IEP. Board of Education v. Rowley, 458 U.S. 176 (1982). When parents challenge the appropriateness of a program or placement offered to the disabled child under the IDEA, the concern is two-fold: 1) whether the State has complied with the procedural requirements of the IDEA; and 2) whether the Student’s IEP developed through the IEP procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, at 206-207. Under the IDEA, procedural flaws do not automatically require a finding of a denial of a FAPE. However, procedural inadequacies that result in the loss of an educational opportunity or that seriously infringe on the parents’ opportunity to participate in the IEP formulation process clearly result in the denial of a FAPE. W.G. v. Board of Trustees of Target Range School District, 960 F.2d 1479 (9th Cir. 1992) and Amanda J. ex rel. Annette J. v. Clark County School, 267 F.3d 877 (9th Cir. 2001). Petitioners, as the party seeking relief, must bear the burden of proving non- compliance with the IDEA at the administrative hearing. Schaffer ex rel. Schaffer v. Weast, Petitioners assert that the February 23, 2007 IEP failed to offer Student a FAPE for The goals and objectives in the February 23, 2007 IEP were poorly written, not consistent with Student’s PLEP, broad and vague, not measurable, and contained unclear The services in the February 23, 2007 IEP were supposed to begin on December 19, 2006; however, the DOE promised to provide Student with services at the Private School through the 2006-2007 school year; The February 23, 2007 IEP did not name a location of the school Student was DOE School #7 did not have a psychologist, did not have a fully self- contained special education classroom for Student, was not enclosed by a fence; and its special education teacher was inexperienced and not trained in PTSD; The qualifications of Student’s 1:1 adult support were not provided. It was not explained to Parent #1 how the 1:1 adult support would implement the February 23, 2007 No individual had pronounced Student physically or mentally stable or recommended that Student be discharged from the Private School at this time; and Respondent asserts Petitioners failed to meet their burden of proof in this case because their witness testimony was insufficient to show that the specific provisions of the February 23, 2007 IEP – the PLEP, goals and objectives, special education and related services, and educational placement – did not offer Student a FAPE. Respondent further asserts that Petitioners used Student’s present emotional condition,27 subsequent to the date the request for hearing was filed, to argue that Student could not be educated outside of the Student has a complex emotional, educational, and life history. Approximately 8 months after arriving in Hawai`i, Student was removed from the custody of Student’s birth mother and step-father due to domestic violence in the home and physical abuse Student sustained from birth mother. As a result, Student is extremely fearful of birth mother. Student does not want any contact with her and refuses to discuss the people and places associated with that phase of Student’s life. During the next two years, prior to being placed in Parents’ foster care in April 2005, Student was placed in four foster homes and two emergency shelters. In June 2005, Student’s emotional health declined. Student was hospitalized for approximately five weeks and diagnosed with autistic disorder and psychotic disorder. In July 2005, Student’s Psychiatrist diagnosed Student with Psychotic disorder in early remission, PTSD from extreme neglect and possible abuse, witness of domestic violence, disorganized attachment behaviors and poor object constancy, speech delay secondary to poor language instruction, bilingual language delay, Articulation disorder, and Learning 27 Student experienced severe emotional issues in June and July 2007. Student has been hospitalized at the Psychiatric Hospital since that time. The Hearings Officer considered Student’s mental and emotional condition from the date the request for hearing was filed and two years prior to that date. Student’s current emotional condition was not taken into considered for this decision. Student began school in August 2002. Student’s kindergarten year was spent at two different DOE schools. Student’s first grade year was spent at four other different DOE schools. Student’s second grade year was spent at two other different DOE schools. Student began Student’s third grade year at the Home School and was subsequently placed at the Private School on or about December 2005. The Private School is a nationally accredited day treatment facility for children with developmental disorders. The level of care provided by the Private School includes mental health services and interventions for individuals experiencing emotional or behavioral problems, disturbances, or disorders as defined in the Diagnostic and Statistical Manual of the American Psychiatric Association, as revised, as well as academic and social programs and programs in speech, occupational, and physical therapy. At the Private School, Student was noted to have global delays in all areas of development - cognitive, linguistic, sensory, social, and emotional. The major area of concern, however, was that Student was emotionally fragile and at-risk due to Student’s recent hospitalization and PTSD and Psychotic disorder. The January 12, 2006 initial trans-disciplinary team assessment conducted by the Private School stated that mental health strategies and teaching methods should be an integral part of Student’s day and infused in all of Student’s activities and instructional tasks. In order to overcome the trauma (and all its residuals which Student suffered at such a young age), Student needed to feel good about self and trust the other individuals in Student’s environment. Academic instruction should be incidental to Student’s work in speech and language (development of syntax, vocabulary, and phonemic awareness); expressive communication; motor control, including fine motor coordination for handwriting and oral motor control for speech articulation; visual processing (for reading); vestibular processing (for staying focused and attentive to a task); and auditory processing (for receiving teacher directions and academic instruction). Student required these skills to take in information and process it. Without these skills, Student would not learn to read, write, spell, or solve math word problems efficiently and with meaning. Student attended the Private School pursuant to an agreement with the DOE. The Private School provided Student with a consistent, safe environment in which to address Student’s mental health and learning issues. This is the first school that Student has attended for any extended period of time. According to the February 20, 2007 multi-disciplinary team update, Student made significant progress in all areas of development – cognitive, social, emotional, academic, linguistic, sensory, and motor. Some of the critical factors that contributed to Student’s progress and mental health stability during the past 17 months included: a) the entire school staff is aware of Student’s individual needs and the key elements of Student’s treatment plan. These individuals are trained and experienced and have an increased sensitivity and level of insight into appropriate treatment approaches to use when interacting with Student. Student has responded well to the attention Student receives from the teachers and staff and has gained an overall level of trust at school; and b) Student feels extremely comfortable and safe at the Private School. This is especially important for this particular child and the trauma Student experienced in life thus far. This overall level of trust seemed to be the most significant factor in allowing Student to increase and maintain an appropriate level of mental health stability and to be able to learn. Student’s current IEP proposed a transfer from the Private School to a DOE public school during the fourth quarter of the 2006-2007 school year. The placement discussed at the February 23, 2007 IEP meeting was a fully self-contained special education classroom on a DOE public school campus. DOE School #728 was discussed as a possible location for Student’s placement. The Team did not discuss any other placement options for Student. 34 C.F.R. §300.552 Placements[.]29 states:
In determining the educational placement of a child with a disability, including a preschool child with a disability, each public agency shall ensure that - The placement decision –
Is made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options; and Is made in conformity with the LRE provisions of this subpart, including Secs. 300.550-300.554; The child’s placement –
Is as close as possible to the child’s home; 28 DOE School #7 is a public elementary school with a special education resource room. Regular education students and special education students attend this school. DOE School #7 is not a public special education school, that is, a public school solely for children with disabilities. 29 See also, HAR §8-56-45 Placements. Unless the IEP of the child with a disability requires some other
arrangement, the child is educated in the school that he or she
would attend if nondisabled;
In selecting the LRE, consideration is given to any potential harmful
effect on the child or on the quality of the services that he or she
needs; and
A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum. The people at Student’s IEP meetings who knew Student best and who spent the most time with Student were Parent #1, Student’s Psychiatrist, and the staff at the Private School. The DOE staff conducted a re-evaluation of Student in the Fall of 2006, but did not have the opportunity to work extensively with Student. The DOE staff spent time with Student during the administration of assessments and during two classroom observations. The BASC-II SOS conducted by the DOE Complex Psychologist was a 15 minute classroom observation. The classroom observation conducted in conjunction with the intellectual evaluation was 20 The staff at the Private School observed and worked with Student on a daily basis since December 2005. A major concern for Student was that Student remained emotionally fragile and at-risk for a relapse, due to Student’s emotional needs. The evidence clearly details Student’s difficulties with trauma and transition. Student’s emotional health is a critical factor in gauging situations that are potentially harmful to Student. In February 2007, Student was doing well at the Private School. On February 20, 2007, the Private School prepared a multi-disciplinary team update for Student in response to the DOE’s plan to transfer Student from the Private School back to a DOE school. Student’s status, including factors that might interfere with Student’s treatment, was outlined. The update stated that due to Student’s significant history of psychological, educational and family experiences, Student’s mental health and mental stability were extremely fragile and should be under constant evaluation when conducting a significant change in Student’s routine and lifestyle. It took Student some time to appropriately adjust to the change in environment of the Private School, its staff, activities, and Student’s peers. The February 20, 2007 multi-disciplinary team update also discussed best practices for discharging a child from a day treatment facility to a lower level of care. This should occur only after Student’s physician and psychologist determined that Student was medically, physically, and emotionally stable to transfer to another environment. The decision would only then be made after a discussion with the Parents and the multi-disciplinary team. None of Student’s medical providers were consulted to determine if Student was physically or mentally stable enough to be discharged from day treatment at that time. In selecting the least restrictive environment, the Team must, among other things, consider the potential harmful effect on Student and the quality of the services Student A preponderance of the credible evidence showed that the placement decision, pursuant to the February 23, 2007 IEP was made by a group of people who did not appropriately consider Parent #1’s input and the Private School’s information about the potential harmful effects of transferring Student from the Private School back to a DOE school. Even without input from Student’s Psychiatrist, a preponderance of the credible evidence showed that the Team had sufficient information regarding Student’s emotional needs and that Student required continued placement in a day treatment facility. Student has attended a day treatment facility from December 2005. The level of care provided to Student specifically addressed Student’s emotional needs. The February 23, 2007 IEP sought to remove Student from day treatment without authorization from Student’s Psychiatrist and in spite of the information contained in the February 20, 2007 multi- disciplinary team update as relayed by Parent #1. A change in placement from a day treatment facility to a fully self-contained special education classroom in a DOE public school is a significant change in placement for Student. Student’s emotional needs are critical to Student’s mental health, stability, and well-being. The Team did not sufficiently address the potential harmful effects of the proposed placement and therefore, did not adequately address Student’s unique needs or provide adequate support services to allow Student to take advantage of educational opportunities. Petitioners have proved by a preponderance of the evidence that the placement30 offered in the February 23, 2007 IEP was not appropriate for Student. The February 23, 2007 IEP was not reasonably calculated to enable Student to receive educational benefits. 30 Based on the foregoing, the Hearings Officer does not need to address the other issues raised by Petitioners in their request for impartial hearing. As a remedy, Petitioners request: 1) reimbursement to Parents for Student’s tuition at the Private School; 2) programmatic placement of Student by the DOE at the Private School; and 3) reimbursement for Student’s daily transportation to school. Burlington MA v. Department of Education, et al., 105 S. Ct. 1996 (U.S. 1985), the U.S. Supreme Court held that parents may be awarded reimbursement of costs associated with unilateral placement if it is found that: The parents’ placement is appropriate. With regard to Petitioners’ request for tuition reimbursement, the Hearings Officer The February 23, 2007 IEP was not appropriate for Student; and Student’s placement at the Private School is appropriate. With regard to Petitioners’ request for programmatic placement for Student at the Private School, the Hearings Officer finds that: Student shall be programmatically placed at the Private School by the DOE, until such time that Student’s treating psychiatrist and other appropriate providers determine that Student is medically, mentally, and physically stable enough to receive a level With regard to Petitioners’ request for reimbursement for transportation costs, the The February 23, 2007 IEP provided Student with the related service of transportation. Upon proper proof of transportation costs, the DOE shall reimburse Petitioners for the cost of Student’s daily transportation to the Private School.
V. DECISION
For the reasons stated above, the Hearings Officer finds and concludes that Petitioners have proven by a preponderance of the evidence that the February 23, 2007 IEP Based on the foregoing, it is hereby ordered that: Parents are to be reimbursed for Student’s tuition at the Private School; Student shall be programmatically placed at the Private School by the DOE until such time that Student’s treating psychiatrist and other appropriate providers determine that Student is medically, mentally, and physically stable enough to receive a level of care other than day treatment; Parents shall be reimbursed for the cost of Student’s daily transportation to the Private School upon proper proof of costs; and Petitioners are deemed the prevailing party in this matter. RIGHT TO APPEAL
The parties have the right to appeal to a court of competent jurisdiction within thirty December 10, 2007

Source: http://hidoereports.k12.hi.us/DueProcessHearings/Documents/DOE-SY0607-121_DECISION.unofficial.pdf