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Date: 09-08-2011

Case Style: Michael P. v. Department of Education, State of Hawaii

Case Number: 09-16078

Judge: Harry Pregerson

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Hawaii (Honolulu County)

Plaintiff's Attorney: Carl M. Varady, Honolulu, Hawaii, for the plaintiffsappellants.

Defendant's Attorney: Rebecca A. Copeland, Department of Education, State of Hawaii, Honolulu, Hawaii, for the defendant-appellee.

Description: Courtney G., a minor with dyslexia, by and through her mother and Guardian Ad Litem, Elizabeth G.,1 appeals from the district court’s order affirming the Administrative Hearings Officer’s (“Hearing Officer”) conclusion that the Hawaii Department of Education (“Hawaii DOE”) properly found Courtney ineligible for services under the Individuals with Disabilities Education Act (“IDEA”). Hawaii DOE determined that Courtney did not qualify for special education under the “specific learning disability” classification because she could not demonstrate a “severe discrepancy” between her actual achievement and her intellectual capacity. Both the Hearing Officer and the district court rejected Courtney’s argument that Hawaii DOE violated IDEA by relying exclusively on the “severe discrepancy model” to determine whether she had a “specific learning disability.” We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

BACKGROUND

A. Statutory Background

“Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491 (2009) (internal marks omitted) (citing Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 367 (1985)).

To qualify for services under IDEA, a child must show (1) the existence of one or more disability classifications, and (2) a need for special education. 20 U.S.C. § 1401(3)(A). To establish eligibility under the “specific learning disability” classification, a student must show that she (1) has “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to . . . read, write, spell, or to do mathematical calculations, including conditions such as . . . dyslexia,” 34 C.F.R. § 300.8(c)(10)(i); and (2) she needs special education. 20 U.S.C. § § 1401(3)(A), 1401(30)(A). For many years, federal regulations required students to demonstrate their need for special education under the “specific learning disability” classification by showing a “severe discrepancy” between actual achievement and intellectual ability. See Dixie Snow Huefner,

The Final Regulations for the Individuals with Disabilities Education Improvement Act (IDEA ‘04), 217 Ed. Law Rep. 1, 8-9 (2007); see also Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83, 123-24 (2009).

The federal regulations did not define “severe discrepancy,” but rather, left the matter to the discretion of each state. Perry A. Zirkel, The Legal Meaning of Specific Learning Disability for Special Education Eligibility, 28 (2006). Hawaii defined a “severe discrepancy” as a 1.5 standard deviation between actual achievement and intellectual ability scores. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009). Alternatively, if standardized tests were invalid or did not reveal a statistically significant deviation, Hawaii permitted consideration of additional evidence to determine whether a “severe discrepancy” existed, such as work samples and information provided by the parent. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009). Over the last decade, scientific research has established that the “severe discrepancy model” is not necessarily a good indicator of whether a child has a learning disability. See Weber, supra at 123-27; H.R. Rep. No. 108-77 at 112 (2003). The “severe discrepancy model” is based on the premise that underperforming students with relatively high IQs must have a learning disability, whereas under performing students with low IQs are just “slow.” See Suzanne Wilhelm, Accommodating Mental Disabilities in Higher Education: A Practical Guide to ADA Requirements, 32 J.L. & Educ. 217 (2003).

This premise is subject to dispute because intelligence testing is not the best indicator of academic potential. See Susan E. McGuigan, Documenting Learning Disabilities: Law Schools’ Responsibility to Set Clear Guidelines, 36 J.C. & U.L. 191, 196. As a result, reliance on the “severe discrepancy model” tends to under-identify children with below average intelligence.
Id. Moreover, education experts have criticized the model as unreliable, invalid, easily undermined, and harmful because it delays early treatment. See Weber, supra at 124.

To address these growing concerns, Congress eliminated the “severe discrepancy” requirement when it reauthorized IDEA in 2004. See 20 U.S.C. § 1414(b)(6)(A) (“[W]hen determining whether a child has a specific learning disability . . . , a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.”); see also H.R. Rep. No. 108-77 at 112 (2003) (indicating that Congress is “discouraged by the widespread reliance on the IQ-achievement discrepancy model that serves as the determining factor of whether a child has a specific learning disability”).

Although the amended statute does not require school districts to use an alternative model to determine whether a student has a “specific learning disability,” it expressly permits use of the “response to intervention model.” See 20 U.S.C. § 1414(b)(6)(B) (“In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention . . . ”). Moreover, legislative history endorses this model. See H.R. Rep. No. 108-77, at 107 (“The Committee is greatly encouraged by the growing use of alternative measures that are being used in place of the IQachievement discrepancy model [including the ‘response to intervention model’].”).

The premise underlying the “response to intervention model” is that “a majority of students can learn if effective instruction is provided.” Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L. Rev. 229, 259 (2007). A student who does not progress adequately after exposure to increasingly intensive and individualized instruction is deemed eligible for special education. See id.; see also Weber, supra 128. “Thus, the definition of disability and the identification of learning disabled students become linked to instruction.” Townsend, supra at 259. Many experts favor the “response to intervention model” because it identifies students with a “specific learning disability” before academic failure occurs, whereas the “severe discrepancy model” takes a “wait to fail” approach. See Weber, supra at 131-33; H.R. Rep. No. 108-77, at 112 (2003).

The United States Department of Education issued regulations implementing the 2004 amendments to IDEA on August 14, 2006, which became effective on October 13, 2006. See Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46540, 46786 (Aug. 14, 2006) (to be codified at 34 C.F.R. § § 300.307). The amended regulations provide that an evaluation team may find a child eligible for special education under the “specific learning disability” classification if the child demonstrates (1) inadequate achievement relative to age or grade level standards; and (2) insufficient progress after intervention, or a pattern of strengths and weaknesses in achievement relative to age, grade-level standards, or intellectual development, which indicates a “specific learning disability.”

Hawaii DOE did not conform its regulations to federal law until November 23, 2009—more than three years after the federal regulations took effect. These new regulations permit a student to qualify for special education absent a “severe discrepancy” between actual achievement and intellectual ability.3

B. Factual Background

From the second grade in 2003 until the beginning of the sixth grade in 2007, Courtney attended a public elementary school in Hawaii. During this period, Courtney struggled with reading and consistently read below grade level on both standardized and informal reading tests. From the second through the fourth grade, Courtney was placed in the “at risk” category according to a standardized literacy test. Despite daily reading practice at home with her grandfather, small group reading intervention at school, and private tutoring at her mother’s expense, she still remained in the “at risk” category.

By the middle of her fourth grade year, Courtney was 2.4 grade levels behind in reading.

1. Hawaii DOE Assessments

Towards the end of Courtney’s fourth grade year, Courtney’s mother and grandfather requested a special education evaluation meeting with Hawaii DOE. At the meeting, Courtney’s mother and grandfather requested that Hawaii DOE use the “response to intervention model” to determine whether Courtney had a “specific learning disability.” Although Hawaii DOE agreed to an in-depth achievement evaluation of Courtney’s abilities, Hawaii DOE refused to use the “response to intervention model.”

Hawaii DOE’s “in-depth achievement evaluation” consisted of a classroom reading assessment report, conducted by a special education resource teacher for the school district, and a formal academic assessment, conducted by a “psychological examiner.” Both tests were conducted at the end of Courtney’s fourth grade year. According to the classroom assessment report, “Courtney struggles as a reader, [is] able to decode at about the [third to fourth] grade level but comprehends at about the [second to third] grade level.” The report also noted that Courtney needed to improve her oral fluency skills, which were at the second to third grade level.

The formal academic assessment indicated that Courtney’s overall academic performance was consistent with the “Average to Below Average” range, and that her weakest skills related to reading and math fluency.

2. June 7, 2006, Eligibility Meeting

At the end of Courtney’s fourth grade year, the evaluation team4 convened to determine whether Courtney was eligible for special education. After considering Hawaii DOE’s assessments and an IQ test that indicated Courtney had a lowaverage IQ, Hawaii DOE determined that Courtney was not eligible for special education because no “severe discrepancy” existed between Courtney’s IQ and her achievement on standardized tests. Courtney’s mother and grandfather disputed Hawaii DOE’s eligibility determination and requested that Hawaii DOE use the “response to intervention” model.

Hawaii DOE never applied this alternative model to determine whether Courtney was eligible for special education.

3. Dr. Murphy-Hazzard’s Neuropsychological Evaluation

In June 2006, Courtney’s mother requested another special education evaluation of Courtney, including a neuropsychological evaluation and a dyslexia test. Hawaii DOE agreed to several additional assessments, but rejected these particular requests. After Courtney’s pediatrician recommended that Courtney be evaluated for a possible learning disability by a neuropsychologist, Courtney’s mother, at her own expense, hired Dr. Peggy Murphy-Hazzard (“Dr. Murphy-Hazzard”), a licensed clinical psychologist, to perform a neuropsychological evaluation of Courtney.

Dr. Murphy-Hazzard evaluated Courtney at the beginning of her fifth grade year. According to Dr. Murphy-Hazzard’s tests, Courtney could only read at a third grade level, which fell in the low-average range, but comprehended at a fourth grade level, which fell in the average range. Dr. Murphy- Hazzard also noted that Courtney struggled with word recognition and spelling. Based on these observations, Dr. Murphy- Hazzard diagnosed Courtney with dyslexia and recommended immediate remediation and intensive tutoring.5

4. November 29, 2006, Eligibility Meeting

Courtney’s final eligibility meeting occurred after the first quarter of the fifth grade on November 29, 2006. At the meeting, the evaluation team considered Dr. Murphy-Hazzard’s report and the results of informal reading tests conducted by Liza Galindo (“Ms. Galindo”), Courtney’s fifth grade teacher. 5Dr. Murphy-Hazzard also diagnosed Courtney with “attention deficit hyperactivity disorder” and “mixed receptive-expressive language disorder.”

The school psychologist, psychological examiner, and speech pathologist disputed some of these diagnoses at the eligibility meeting held on November 29, 2006. Courtney’s eligibility for special education as a result of these diagnoses are not at issue in this appeal.

These tests showed that Courtney read at the fourth grade level at the start of the fifth grade. Courtney’s reading did not significantly improve during the first quarter of the fifth grade. Despite evidence that Courtney had dyslexia and was not progressing adequately with regular intervention, Hawaii DOE once again determined that Courtney was not eligible for special education because her academic achievement was commensurate with her ability, as measured by her IQ.6

5. Individualized Dyslexia Tutoring

Approximately one month after Hawaii DOE denied Courtney eligibility for special education, Courtney took another informal reading test. Courtney performed very poorly on fourth grade level reading comprehension and even struggled to comprehend at the third grade level. Frustrated with Courtney’s lack of progress, Courtney’s mother, at the family’s expense, hired Dr. Kathy Ferguson (“Dr. Ferguson”), who is certified to teach dyslexic students, to help Courtney improve her reading skills.

Dr. Ferguson began tutoring Courtney in January 2007, the middle of Courtney’s fifth grade year. Based on her initial assessments, Dr. Ferguson concluded that Courtney had a “quite severe reading disability” and that she read three grade levels behind. Dr. Ferguson provided Courtney with weekly dyslexia reading tutoring, which resulted in significant progress.

By the end of her fifth grade year, Courtney “approached reading proficiency” according to a standardized state test.

Moreover, Courtney performed better on informal reading tests, reading a fifth-grade-level passage with 95 percent accuracy and 50 percent comprehension at the beginning of the sixth grade. Before Dr. Ferguson’s tutoring, Courtney read a fourth grade passage with only 90 percent accuracy and 10 percent comprehension.

6. Assets School

Despite Courtney’s progress, Courtney still needed more help because she was so far behind. According to Dr. Ferguson, Courtney needed more intensive special education services to address her reading fluency and vocabulary deficits.

In addition to private dyslexia tutoring, Dr. Ferguson recommended that Courtney enroll in Assets School, a private school for dyslexic and gifted children that incorporates specialized instruction into its curriculum. At the beginning of Courtney’s sixth grade year, while administrative proceedings were still pending, Courtney’s mother withdrew Courtney from public school and, at her own expense, enrolled Courtney at Assets School.7

C. Procedural Background

1. Administrative Proceedings

On March 15, 2007, in the middle of Courtney’s fifth grade year, Courtney’s mother and grandfather requested a due process hearing, alleging that Hawaii DOE improperly denied Courtney special education services. Courtney’s mother and grandfather asked the Hearing Officer to determine that Courtney was eligible for special education under the “specific learning disability” classification and requested intensive dyslexia tutoring and remediation, reimbursement for tutoring and non-DOE evaluations, and compensatory education for Courtney’s fourth and fifth grade years.

Courtney’s mother produced four expert witnesses at the hearings, held on August 29-31 and December 27, 2007. These witnesses included Dr. Murphy-Hazzard, the clinical psychologist who performed Courtney’s neuropsychological evaluation; Dr. Ferguson, a certified teacher of dyslexic students who provided Courtney private tutoring; Dr. Patricia Edelen-Smith, a professor in the Special Education Department at the University of Hawaii; and Dr. Peter Dorwick, a professor of Disability Studies at the University of Hawaii.

These experts consistently testified that the discrepancies between Courtney’s sub-test scores indicate that she has a learning disability and that her learning disability depressed her IQ score. Dr. Ferguson testified from her personal experience tutoring Courtney that Courtney had a severe reading disability. Moreover, all the experts testified that Courtney needed special education to benefit from general education and avoid academic failure.

Hawaii DOE presented expert testimony by Dr. Abigail Royston (“Dr. Royston”), a Hawaii DOE school psychologist. Dr. Royston did not attend any of Courtney’s special education eligibility meetings, and unlike several of Courtney’s mother’s expert witnesses, Dr. Royston had never met Courtney.

Dr. Royston criticized Dr. Murphy-Hazzard’s neuropsychological evaluation on a number of grounds, but ultimately agreed that Courtney had dyslexia. Nevertheless, she agreed with Hawaii DOE’s conclusion that Courtney was not eligible for special education. Dr. Royston explained that a child with a disability must need special education to qualify for services.

She surmised that Hawaii DOE determined that Courtney did not need special education because she was progressing with “regular education intervention.” Dr. Royston conceded, however, that Courtney should be deemed eligible for special education if her progress during the fifth grade was attributable to the individualized dyslexia tutoring she received from Dr. Ferguson. Such tutoring qualifies as special education.8 According to Dr. Royston, the critical question was whether Courtney “had started to make the advances that we see that she made by the end of the fifth grade year before she started that [individualized dyslexia tutoring].”

Hawaii DOE also presented testimony by Ms. Galindo, Courtney’s fifth grade teacher. Even though Ms. Galindo’s informal reading tests showed that Courtney read below grade level at the start of the fifth grade and that Courtney did not improve by the time of her final eligibility meeting, Ms. Galindo testified that she did not believe Courtney needed special education because she observed some progress in the classroom.

On February 29, 2008, the Hearing Officer issued his decision, concluding that Hawaii DOE properly determined that Courtney was ineligible for special education under the “specific learning disability” classification. Although the Hearing Officer found that Courtney suffered from dyslexia, he determined that Courtney did not need special education because no “severe discrepancy” existed between her actual achievement and intellectual ability. The Hearing Officer also noted that Courtney did not need special education because the evidence suggested that she was progressing and had nearly reached proficiency in reading.

2. District Court Proceedings

The district court affirmed the Hearing Officer’s decision that Courtney was ineligible for special education under IDEA. First, the district court determined that the Hearing Officer’s decision was entitled to deference because the Hearing Officer considered and discussed the available evidence, including testimony by Courtney’s expert witnesses. Second, the district court held as a matter of law that Hawaii DOE may use the “severe discrepancy model” under the 2006 federal regulations. Third, the district court held that Courtney’s test results did not demonstrate a “severe discrepancy” between her intellectual ability and academic achievement because her scores on standardized achievement tests were higher than her IQ score.

Courtney’s mother appeals the district court’s decision, primarily arguing that Hawaii DOE improperly relied exclusively on the “severe discrepancy model” to determine whether Courtney was eligible for special education under the “specific learning disability” classification.9 We agree.

STANDARD OF REVIEW

We review a district court’s findings of fact in IDEA cases for clear error, and we review its conclusions of law de novo. Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996). We review the Hearing Officer’s decision de novo, but we “must give deference to the [Hearing Officer]’s findings, particularly when . . . they are thorough and careful[,] [and] must give ‘due weight’ to judgments of educational policy.” Id. (internal citations and quotation marks omitted). “We define ‘due weight’ as follows: [t]he court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer’s resolution of each material issue. After such consideration, the court is free to accept or reject the findings in part or in whole.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212 (9th Cir. 2008) (internal citations and quotation marks omitted).

DISCUSSION

I. Hawaii DOE’s Regulations Requiring Exclusive Reliance on the “Severe Discrepancy Model” Violate IDEA

[1] Federal regulations cabin states’ discretion to create special education eligibility criteria in two ways. First, states “[m]ust not require the use of the severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability.” 34 C.F.R. § 300.307(a)(1). Second, states “[m]ust permit the use of a process based on the child’s response to scientific, researchbased intervention.” 34 C.F.R. § 300.307(a)(2). These regulations were effective beginning October 13, 2006, and therefore were controlling at the time of Courtney’s final eligibility meeting on November 29, 2006.

The district court held that § 300.307(a) does not bar use of the “severe discrepancy model.” This holding misses the point. Courtney’s mother concedes that the federal regulations permit use of the “severe discrepancy model,” but contends that Hawaii DOE may not use the “severe discrepancy model” as “the sole basis of determining eligibility” (emphasis added).

[2] The plain and unambiguous language of § 300.307(a) prohibits states from requiring exclusive reliance on the “severe discrepancy model” and also requires states to allow use of the “response to intervention model.” The Hawaii regulations in effect at the time of Courtney’s final eligibility meeting conflicted with § 300.307(a) by conditioning eligibility for special education on the existence of a “severe discrepancy” between academic achievement and intellectual ability without permitting use of the “response to intervention model.” See Haw. Code R. § 8-56-26 (repealed Nov. 23, 2009). Hawaii DOE did not amend its regulations to conform with federal law until November 23, 2009—more than three years after the federal regulations were effective. See Haw. Code R. § 8-60-41. Accordingly, Hawaii DOE procedurally violated IDEA by requiring use of the “severe discrepancy model” to determine whether a child is eligible for special education under the “specific learning disability” classification.

[3] Hawaii DOE argues that it is not subject to § 300.307(a)(1). By its terms, § 300.307(a)(1) applies to states and not to local school districts. See John Dinan, The Meaning of State Constitutional Education Clauses: Evidence from the Constitutional Convention Debates, 70 Alb. L. Rev. 927, 965 (2007). Unlike other states, Hawaii only has a state educational agency and does not have separate local school districts.

Id. Thus, Hawaii DOE serves both as the state educational agency, which creates statewide education regulations, and as the local school district, which provides educational services directly to students. Id. Because of these unique circumstances, Hawaii DOE argues that § 300.307(a) should not apply. According to Hawaii DOE, application of § 300.307(a) would deprive Hawaii DOE of its right to choose the best method for identifying students with a “specific learning disability,” a right every other school district enjoys.

[4] While Hawaii DOE is correct that it functions as both a state agency entrusted with IDEA compliance and as a direct provider of educational services, Hawaii DOE is incorrect that it may shirk its responsibilities as a state educational agency just because it also provides educational services directly to students. Under the amended regulations, no state educational agency may condition eligibility for special education on the existence of a “severe discrepancy” between academic achievement and intellectual ability, and every state must allow use of the “response to intervention” model.10 34 C.F.R. § § 300.307(a)(1), (2). As a state educational agency, Hawaii DOE was required to promulgate regulations that are consistent with federal regulations. See 20 U.S.C. §§ 1407(a), 1412(a)(11). Hawaii DOE failed to fulfill this obligation by continuing to operate under regulations that required use of the “severe discrepancy model” and did not permit use of the “response to intervention model.” Accordingly, Hawaii DOE procedurally violated IDEA.11 To hold otherwise would be detrimental to the children of Hawaii and contrary to legislative intent. See H.R. Rep. 108-77, at 107 (noting that exclusive reliance on the “severe discrepancy model” may result in delayed or incorrect identification of students who are eligible for services under IDEA); accord Weber, supra 123-27. 10Our dissenting colleague agrees that “34 C.F.R. § 300.307(a)(1) prohibits states from requiring local districts to use the severe discrepancy model.” Dis. Op. at 17049. Our colleague further notes that “[t]he final regulations left the choice of whether to use the severe discrepancy model or alternative procedures to the discretion of local school districts.” Dis. Op. at 17048. But, according to the dissent, Hawaii DOE’s unique situation—as a direct provider of educational services—renders it more like a local school district and, thus, the regulation’s prohibition is inapplicable.

If that were so, any state could effectively remove from any local school district the discretionary authority to choose whether to use the severe discrepancy model or an alternative model by providing direct educational services itself, for whatever reason that state chose to do so. Moreover, Congress was presumably aware of Hawaii’s unique situation and made no exception for it.

II. Whether Courtney Was Erroneously Found Ineligible for Special Education

[5] A procedural violation of IDEA is harmless unless it deprives the child of an educational opportunity. See R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir. 2007). A child experiences an egregious loss of educational opportunity when she is erroneously denied eligibility for special education services. Cf. T.A., 129 S. Ct. at 2495 (“It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to services altogether.”).

Thus, our next task is to determine whether Hawaii DOE’s unlawful regulations, which require use of the “severe discrepancy model,” resulted in an improper special education eligibility determination.

Hawaii DOE eventually amended the unlawful regulations applied at Courtney’s eligibility meeting to conform with federal law. Haw. Code R. § 8-60-41(a)(1)-(2). Under these new, conforming regulations, an evaluation team may find a student eligible for special education under the “specific learning disability” classification if:

(1) (A) The student does not achieve adequately for the student’s age or to meet State-approved gradelevel standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the student’s age or Stateapproved grade-level standards:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

(iv) Basic reading skill (including phonemic awareness, phonics, and/or vocabulary);

(v) Reading fluency skills;

(vi) Reading comprehension;

(vii) Mathematics calculation;

(viii) Mathematics problem solving; or

(B) The student demonstrates a severe discrepancy between actual achievement and intellectual ability by a difference of at least one and one-half standard deviations in one or more of the areas in subparagraph

(A); and

(2) (A) The student does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (1)(A) when using a process based on the student’s response to scientific, research-based intervention; or

(B) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments . . . . Haw. Code R. § 8-60-41(a)(1)-(2). Unlike Hawaii’s prior regulations, these new regulations do not require a “severe discrepancy” between intellectual ability and academic achievement. Moreover, these new regulations permit use of the “response to intervention model.” Id.

[6] Under Hawaii’s new regulations, a child will be deemed eligible for special education under the “specific learning disability” classification if she satisfies two sets of criteria. First, the child must demonstrate either (1) inadequate achievement, or (2) a severe discrepancy between achievement and ability. Id. Second, the child must demonstrate either (1) insufficient progress, or (2) a pattern of strengths or weaknesses in performance consistent with a “specific learning disability.” Id. 20 U.S.C. § 1415(i)(2)(C)(iii) provides that a court should base its decision with respect to a child’s eligibility on the preponderance of the evidence. The district court is the traditional forum in which facts are assessed and evidence is weighed, as it has the ability to delve deeply into factual records and, where necessary, conduct evidentiary hearings. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402-03 (1990) (noting, in the context of Rule 11, that “the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard”); In re Bradford, 112 B.R. 347, 352 (9th Cir. 1990) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)) (“The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.”). Therefore, the district court is the appropriate authority to assess and reach a conclusion as to Courtney’s eligibility for special education under the “specific learning disability” classification, a primarily fact-based inquiry. Accordingly, this court hereby remands this case back to the district court to determine, by a preponderance of the evidence, whether Courtney would be eligible for special education under the “specific learning disability” classification.

III. Reimbursement

Courtney’s mother seeks reimbursement for Courtney’s private school tuition at Assets, private tutoring, and related expenses.12 We may award reimbursement for private school placement if a school district unreasonably finds a child with disabilities ineligible for services under IDEA and the private school placement is appropriate. See T.A., 129 S. Ct. at 2495- 96. Reimbursement is also available for private tutoring and related services, such as transportation. See, e.g., Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994) (holding that reimbursement for reasonable transportation to private school placement is permitted as a related expense); W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1487 (9th Cir. 1992) (awarding parents reimbursement for private tutoring).

[7] As discussed above, the district court must determine whether Hawaii DOE erroneously denied Courtney eligibility for special education under the “specific learning disability” classification. We remand to the district court to determine whether Courtney’s privately procured education, including private school placement, private tutoring and related services, was appropriate and to award reimbursement accordingly.

See, e.g., Adams v. Oregon, 195 F.3d 1141, 1151 (9th Cir. 1999) (finding in favor of student, but remanding to the district court to determine whether private services obtained by student’s parents were appropriate); accord D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 569 (3d Cir. 2010) (finding in favor of student, but remanding to the district court to determine the precise relief that should be afforded to the student, including reimbursement).

* * *

See: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/08/09-16078.pdf

Outcome: Hawaii DOE procedurally violated IDEA by applying regulations that require exclusive reliance on the “severe discrepancy model” at Courtney’s final eligibility meeting. This violation deprived Courtney of a significant educational opportunity because it resulted in an erroneous eligibility determination. Accordingly, we REVERSE the district court’s order affirming the Hearing Officer’s decision and REMAND for further proceedings to determine (1) whether Courtney has a “specific learning disability” and is eligible for services under IDEA, (2) whether Courtney’s placement at Assets and private dyslexia reading tutoring is appropriate, and (3) the appropriate amount of reimbursement.

REVERSED AND REMANDED.

Plaintiff's Experts: Dr. Peggy Murphy-Hazzard, clinical psychologist

Defendant's Experts: Dr. Abigail Royston, Hawaii DOE school psychologist.

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