State fell short in school plan for autistic child, court rules

The state should have offered an autistic child services better tailored to his needs when it proposed moving him to public school rather than continuing to pay his private-school tuition, an appeals court ruled Wednesday.

Keith Peck, attorney for the child identified only as J.B., said the ruling by the 9th U.S. Circuit Court of Appeals has far-reaching implications because it gives parents “very strong tools” to advocate for their children’s special education.

“This is a game changer for families,” Peck said. “Now parents have these rights that are clearly delineated. This is a landmark case.”

One of those tools involves special education services provided during school breaks, he said.

“Schools must design the intersession program and placement for children individually and cannot merely provide them whatever the school has available,” Peck said. “It must meet their individual needs.”

Supervising Deputy Attorney General Holly Shikada, who heads the education division and handled the case, was out of state Wednesday and not available for comment.

The case arose after the Department of Education proposed that J.B. enter kindergarten at Koko Head Elementary School rather than continue at Pacific Autism Center, a small private school where the state had been covering his tuition.

Educators worked with his father, identified as R.E.B., and developed an individual educational plan for the boy, but his father objected that it was inadequate.

An administrative hearings officer sided with the Department of Education in finding the plan was sufficient, as did U.S. District Court Judge Derrick Watson.

The family appealed to the 9th Circuit on grounds that the child was being denied the “free and appropriate education” that is required by law.

The appeals court ruled for J.B. on several issues. It determined that:

>> He was entitled to transition services to ease his adjustment to a new school.

>> His individual educational plan should have specified that he receive “applied behavioral analysis” as a teaching method, since it was integral to his education.

>> It should have specified the “least restrictive environment” for services during the school breaks as well as the school year.

>> The plan should have specified whether he would be mainstreamed for science and social studies, rather than leaving it up to his teachers.

The judges sided with the state on one issue, agreeing that J.B.’s educational plan did not need to specify the qualifications of his one-on-one aide.

The Department of Education paid for J.B.’s tuition at PAC from 2012 to 2015 while the case was pending, until his father decided to move the family to Massachusetts.

“He got fed up and moved to Massachusetts, one state that optimizes special education services instead of just giving the basic access,” Peck said.

The case now goes back to the lower court to determine the remedy. The family is seeking reimbursement for transportation and compensatory education costs.

The 9th Circuit judges split 2-to-1 on the case, known as R.E.B. et al. v. State of Hawaii Department of Education. Circuit Judges Alex Kozinski and Michael Daly Hawkins made up the majority.

In dissent, Judge Carlos Bea said the school had offered transition services; J.B.’s educational plan did not specify applied behavioral analysis because his teachers wanted to use more than one teaching method; and his educational plan indicated which courses he would be mainstreamed for except science and social studies, which would depend on the activity.