Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 1 of 5 PageID #: 3154 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Transcription

1 Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 1 of 5 PageID #: 3154 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII R.P.-K, through his parent, C.K., et al., vs. Plaintiffs, DEPARTMENT OF EDUCATION, State of Hawaii, Defendant. CIVIL NO SOM/KSC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS This case, originally assigned to the Honorable David Alan Ezra, concerns whether the State of Hawaii Department of Education ( DOE wrongfully denied services under the Individuals with Disabilities Education Act ( IDEA to individuals that the DOE viewed as having aged out of being eligible to receive services. On March 15, 2011, Judge Ezra granted a motion to certify a class in this case. See ECF No. 31. In the same order he dismissed some of the purported class representatives. Id. Judge Ezra subsequently ruled that the DOE was not required to provide services under the IDEA to class members. See ECF No Plaintiffs appealed that decision. See ECF No. 125.

2 Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 2 of 5 PageID #: 3155 In an order filed on August 28, 2013, the Ninth Circuit reversed Judge Ezra s decision in part, ruling that the DOE s reliance on a Hawaii statute to deny services under the IDEA was improper, and that individuals covered by the IDEA had not aged out at the age calculated by the DOE. See ECF No On remand, the case was assigned to this judge because Judge Ezra was residing in another district. Before the court are what are essentially cross-motions concerning how the Ninth Circuit s decision should be implemented. In an IDEA case, a court has the power to grant such relief as the court determines is appropriate. 20 U.S.C. 1415(i(2(C. The Ninth Circuit has stated that, when a child is denied the Free Appropriate Public Education ( FAPE contemplated by the IDEA, a court may provide additional services to make up for lost time, as it may be a rare case when compensatory education is not appropriate to remedy an IDEA violation. R.P ex rel. C.P. v. Prescott Unified Sch. Dist., 631 th F.3d 1117, (9 Cir Given the Ninth Circuit s determination that the DOE denied a FAPE to a class of individuals by determining that they had aged out when in actuality they remained eligible for services, this court now determines that the members of the class should receive compensatory services to make up for the services missed as a result of that improper determination of 2

3 Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 3 of 5 PageID #: 3156 ineligibility. To the extent part of Plaintiff s motion seeks compensatory education, that portion is granted. Both Plaintiffs and Defendant propose ways to address the DOE s IDEA violation. While both sides raise the issue, both leave a great deal to the court in terms of logistics. For that reason, to the extent Plaintiffs motion seeks an order appointing a special master and the DOE s motion seeks an order leaving it to the DOE determine what services to provide to which individuals, both motions are denied. Instead, this court orders certain initial determinations to be made before a final course of action is selected. The parties are ordered to work with Magistrate Judge Kevin S.C. Chang concerning the following: 1 Determination of Class Members: as soon as practicable, but in no event later than September 22, 2014, the DOE must provide Plaintiffs counsel with the name of every potential class member, accompanied by his or her last-known contact information. The DOE must include the names and lastknown contact information of all individuals who might have been affected by the DOE s age out calculation, including individuals that the DOE concludes may have opted not to receive services, such as drop outs and those with employment. The DOE may provide names by grouping similarly situated individuals. 3

4 Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 4 of 5 PageID #: 3157 Magistrate Judge Chang will settle all disputes concerning the identification of class members; 2 Consideration of the DOE s ability to provide compensatory education to class members; 3 Identification of private service providers likely to be needed to provide compensatory education to class members and likely to be agreed to by the parties; and 4 Consideration of prompt class notification and of further class certification issues, with any modification of the existing class certification to be sought by motion(s filed no later than October 31, The parties are directed to file status reports on the above matters by September 30, Once these initial matters are addressed, there will, of course, need to be further decisions on what procedure to follow to provide compensatory education to class members. This may ultimately mean that the DOE must propose a compensatory education package for every class member who desires one, or that a special master should be appointed to oversee that process. At this time, the court rules only that it is appropriate to 4

5 Case 1:10-cv SOM-KSC Document 187 Filed 08/22/14 Page 5 of 5 PageID #: 3158 determine the scope of the class as well as the services that may be available to compensate class members for the DOE s violation of the IDEA. IT IS SO ORDERED. DATED: Honolulu, Hawaii, August 22, /s/ Susan Oki Mollway Susan Oki Mollway Chief United States District Judge R.P.-K, et al. v. Dep t of Educ., State of Hawaii, Civ. No SOM/KSC; ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS 5

6 Rose Patrocinio - Activity in Case 1:10-cv SOM-KSC P.-K. et al v. Department of Education, State of Hawai'i Order on Motion for Miscellaneous Relief From: <hid_resp@hid.uscourts.gov> To: <hawaii_cmecf@hid.uscourts.gov> Date: 8/22/ :23 AM Subject: Activity in Case 1:10-cv SOM-KSC P.-K. et al v. Department of Education, State of Hawai'i Order on Motion for Miscellaneous Relief BC: Rose Patrocinio This is an automatic message generated by the CM/ECF system. Please DO NOT RESPOND to this because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** There is no charge for viewing opinions. Notice of Electronic Filing U.S. District Court District of Hawaii The following transaction was entered on 8/22/2014 at 11:22 AM HST and filed on 8/22/2014 Case Name: P.-K. et al v. Department of Education, State of Hawai'i Case Number: 1:10-cv SOM-KSC Filer: Document Number: 187 Docket Text: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF COMPENSATORY EDUCATION AND APPOINTMENT OF SPECIAL MASTER; ORDER DENYING DEFENDANT'S MOTION FOR THE COURT TO DETERMINE THE APPROPRIATE FORUM AND PROCESS FOR EVALUATING COMPENSATORY EDUCATION CLAIMS OF CLASS MEMBERS re [172]; [173] - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/22/2014. "The parties are ordered to work with Magistrate Judge Kevin S.C. Chang concerning the following: 1 Determination of Class Members: as soon as practicable, but in no event later than September 22, 2014, the DOE must provide Plaintiffs' counsel with the name of every potential class member, accompanied by his or her last-known contact information. The DOE must include the names and last-known contact information of all individuals who might have been affected by the DOE's "age out" calculation, including individuals that the DOE concludes may have opted not to receive services, such as drop outs and those with employment. The DOE may provide names by grouping similarly situated individuals. Magistrate Judge Chang will settle all disputes concerning the identification of class members ; 2 Consideration of the DOE's ability to provide compensatory education to class members; 3 Identification of private service providers likely to be needed to provide compensatory education to class members and likely to be agreed to by the parties; and 4 Consideration of prompt class notification and of further class certification issues, with any modification of the existing class certification to be sought by motion(s filed no later than October 31, " "The parties are directed to file status reports on the above matters by September 30, 2014." (emt,

7 CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the address listed on the Notice of Electronic Filing (NEF. Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry 1:10-cv SOM-KSC Notice has been electronically mailed to: Paul Alston Harvey E. Henderson, Jr Steve K. Miyasaka Holly T. Shikada Gary S. Suganuma Matthew C. Bassett Jason H. Kim Carter K. Siu Louis Erteschik Adam T. Snow Jennifer Visitacion Patricio Michelle N. Comeau Claire Wong Black 1:10-cv SOM-KSC Notice will not be electronically mailed to: The following document(s are associated with this transaction: Document description:main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfstamp_id= [Date=8/22/2014] [FileNumber= ] [3ba93e966f30bba dd4c8d980ad5426b3710e1cf6e0746bdc30e92c19ef1

8 cc207dbc596fa2c18f8cfed81e016fe1fbf62b9f add9862d3]]