FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
K.D. a minor child, through his
mother and next friend, C.L., No. 10-15454
Plaintiff-Appellant, D.C. No.
v. 1:09-cv-00197-HG-
DEPARTMENT OF EDUCATION, LEK
STATE OF HAWAII, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Argued and Submitted
October 13, 2011—Honolulu, Hawaii
Filed December 27, 2011
Before: Diarmuid F. O’Scannlain, Richard C. Tallman, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
21231
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21235
COUNSEL
Matthew Charles Bassett (argued), Hawaii Disability Rights
Center, Kula, Hawaii, for plaintiff-appellant K.D.
Berton Kato, Deputy Attorney General (argued), Honolulu,
Hawaii, for defendant-appellee Department of Education,
State of Hawaii.
21236 K.D. v. HAWAII DEPARTMENT OF EDUCATION
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant K.D., a minor who has been diagnosed
with autism, appeals the district court’s affirmance of the
Hawaii Department of Education (DOE) hearing officer’s
decision that K.D.’s free and appropriate public education
placement complied with the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. § 1400 et seq. K.D. also
claims that his tuition reimbursement request for the 2007-08
school year was timely, and that Loveland Academy (Love-
land) was his “stay put” placement. We affirm the decision of
the district court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Statutory Framework
The IDEA ensures that “all children with disabilities have
available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for further educa-
tion, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA primarily seeks to make public
education available to handicapped children who were previ-
ously excluded from any form of public education. Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458
U.S. 176, 191-92 (1982). In particular, the IDEA aims to
address concerns about the “apparently widespread practice of
relegating handicapped children to private institutions or
warehousing them in special education classes.” N.D. v. Haw.
Dep’t of Educ., 600 F.3d 1104, 1115 (9th Cir. 2010) (citing
Sch. Comm. of the Town of Burlington v. Mass. Dep’t of
Educ., 471 U.S. 359, 373 (1985)). On the other hand, the
IDEA aims to ensure that handicapped children are provided
public education appropriate for their needs, and are not “left
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21237
to fend for themselves in classrooms designed for education
of their non[-]handicapped peers.” Rowley, 458 U.S. at 191.
A free and appropriate public education (FAPE) is defined
as “special education and related services that—(A) have been
provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the
State educational agency; (C) include an appropriate pre-
school, elementary school, or secondary school education in
the State involved; and (D) are provided in conformity with
the individualized education program required under section
1414(d) of this title.” 20 U.S.C. § 1401(9). In order to provide
children with a FAPE, schools and parents work together to
develop an individualized education program (IEP). Schaffer
v. Weast, 546 U.S. 49, 53 (2005). An IEP is defined as a
“written statement for each child with a disability that is
developed, reviewed, and revised in accordance with section
1414(d) of this title.” 20 U.S.C. § 1401(14). The IEP is, in
effect, a “comprehensive statement of the educational needs
of a handicapped child and the specially designed instruction
and related services to be employed to meet those needs.”
Burlington, 471 U.S. at 368.
A state must comply both procedurally and substantively
with the IDEA. Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d
877, 881 (9th Cir. 2001). While the IDEA does not define the
particular substantive level of education that must be provided
to a child, the state must provide an education that is “reason-
ably calculated to enable the child to receive educational ben-
efits.” Rowley, 458 U.S. at 206-07. The IDEA focuses on a set
of extensive procedures that must be followed in formulating
an IEP for a particular child. See 20 U.S.C. § 1414. In addi-
tion, the IDEA sets forth a set of procedural safeguards that
help ensure that a child receives a FAPE. See id. § 1415. A
child may file a timely complaint and request a due process
hearing for any violation of the IDEA. Id. § 1415(b), (f). Dur-
ing the pendency of the due process hearing, the child is enti-
tled to stay put at his “then-current educational placement,”
21238 K.D. v. HAWAII DEPARTMENT OF EDUCATION
regardless of the eventual outcome of the hearing. Id.
§ 1415(j).
II. Factual Background
K.D. is a ten-year-old boy who has been diagnosed with
moderate to severe autism. In November 2006, K.D.’s
mother, C.L., enrolled him at Loveland, a private school, after
he spent his kindergarten year in public school. Subsequently,
C.L. filed a request for a due process hearing with the DOE.
The DOE and C.L. settled the due process request on March
23, 2007. As part of the settlement agreement, the DOE
agreed to pay K.D.’s tuition at Loveland for the 2006-07
school year. In addition to the dismissal with prejudice of the
hearing request, C.L. agreed to sign consent forms allowing
DOE employees to conduct observations of K.D. at Loveland,
and to obtain K.D.’s 2006-07 education records. The settle-
ment agreement also required C.L. to “participate in transition
planning for [K.D.] to a Department of Education public
school at the end of the 2006-07 school year, if appropriate.”
Accordingly, on April 5, 2007, the DOE held the first IEP
meeting for K.D. for the 2007-08 school year, with both C.L.
and the Loveland placement director in attendance. At the
meeting, the parties agreed to continue the meeting until July
2007 due to time constraints. After this initial meeting, the
DOE conducted one visit at Loveland on April 19, 2007 to
observe K.D. Subsequently, C.L. sent a letter to the DOE
placing limitations on future observations of K.D. because she
felt that the April 19, 2007 visit had been disruptive to him.
The DOE objected to C.L.’s limitations because they did not
comply with the settlement agreement, and because it needed
to perform assessments in order to prepare for the upcoming
IEP meeting. After several delays caused by C.L.’s cancella-
tions of scheduled tests, the tests finally took place in July
2007.
On June 28, 2007, the DOE sent C.L. a letter proposing
dates for the continued IEP meeting, and stating that the meet-
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21239
ing would be held on July 25, 2007 if C.L. failed to respond.
Having received no response to its June 28, 2007 letter, the
DOE sent C.L. another letter on July 13, 2011 informing her
the meeting would be held on July 25, 2007. On July 25,
2007, the DOE held the second IEP meeting without either
C.L. or Loveland’s director being in attendance. The DOE
finalized the IEP for K.D. for the 2007-08 school year, and
sent it to C.L. on July 31, 2007, as the child’s FAPE, placing
him at Pearl Harbor Kai Elementary School in a small class-
room setting.
C.L. did not respond, and re-enrolled K.D. at Loveland for
the 2007-08 school year. The DOE sent C.L. several letters
between August 2007 and February 2008 regarding the IEP
developed for K.D., and warned C.L. that K.D.’s continued
enrollment at Loveland was a unilateral decision made by her
alone, and that the DOE would not be responsible for any
tuition payments or reimbursement for K.D.’s 2007-08 school
year enrollment at Loveland. On February 27, 2008, over
seven months after the IEP offer was made by the DOE, C.L.
finally responded that K.D.’s enrollment at Loveland was not
unilateral, and requested that the DOE make tuition payments
for K.D. C.L. and the DOE exchanged several letters in which
they disagreed concerning whether K.D.’s enrollment at
Loveland was unilateral. No due process hearing request was
filed by C.L. at that time.
The DOE subsequently began preparing for K.D.’s 2008
IEP. The DOE sent letters to C.L. requesting K.D.’s progress
reports from Loveland, and C.L.’s written consent to observe
K.D. at Loveland. No written consent was provided to the
DOE, though C.L. later testified that she gave the DOE verbal
consent. On July 10, 2008, the DOE sent C.L. a letter propos-
ing dates for the 2008 IEP meeting, and stating that the meet-
ing would be held on July 25, 2008 if C.L. failed to respond.
Due to another failure to respond, the 2008 IEP meeting was
held on July 25, 2008 without either C.L. or Loveland’s direc-
tor being in attendance. The DOE sent the proposed 2008 IEP
21240 K.D. v. HAWAII DEPARTMENT OF EDUCATION
to C.L. on August 6, 2008, offering placement at Pearl Harbor
Kai for the 2008-09 school year. On August 29, 2008, K.D.
filed the request for a due process hearing that is at issue in
this appeal.
III. Procedural History
A. Proceedings Before the Administrative Hearing
Officer
The administrative hearing officer issued a written decision
on April 3, 2009, in which he concluded that the proposed
2007 IEP was a FAPE. The hearing officer found that the
2007 IEP offered K.D. the following services: 1,530 minutes
of special education per week, 1,350 minutes of speech-
language therapy per quarter, 540 minutes of occupational
therapy services per quarter, and transportation services. Sup-
plemental services were also ordered for K.D., including indi-
vidualized instructional support during school of 6.25 hours
per week, behavioral instructional support services for four
hours per week, and a 1:1 paraprofessional support after
school for two hours, five times a week. The hearing officer
also concluded that the individualized instructional support
during school and 1:1 paraprofessional support after school
met K.D.’s need for a 1:1 trainer.
Similarly, the hearing officer concluded that the 2008 was
a FAPE. The 2008 IEP offered K.D. the following services:
1,740 minutes per week of special education during school
and 950 minutes per week after school, 60 minutes of occupa-
tional therapy per week, 200 minutes of speech-language ther-
apy per week, and transportation services. Additional services
offered included 1,800 minutes of paraprofessional services
per week during school and 950 minutes per week after
school, four hours of behavioral support services per week,
and one hour of parent training per month.
The hearing officer also dismissed K.D.’s claims for tuition
reimbursement for the 2007-08 Loveland school year because
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21241
K.D.’s enrollment at Loveland after the 2006-07 school year
had been a unilateral placement, and the reimbursement
request, filed over a year after the placement, was untimely.
B. Proceedings in District Court
K.D. filed a timely appeal of the administrative decision in
the district court. The primary issues presented to the district
court were: (1) whether the DOE’s placement of K.D. at Pearl
Harbor Kai for the 2007-08 and 2008-09 school years was a
denial of a FAPE, and (2) whether IDEA’s stay put provision
applied to keep K.D. at Loveland during the 2007-08 and
2008-09 school years. The district court affirmed the hearing
officer’s conclusion that the IEPs offered in 2007 and 2008
were sufficient to constitute a FAPE. The district court also
affirmed that the request for reimbursement for the 2007-08
school year was untimely because K.D.’s enrollment at Love-
land was unilateral. Finally, the district court held that Love-
land was not K.D.’s stay put placement.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo the district court’s decision that the
school district complied with the IDEA. N.B. v. Hellgate Ele-
mentary Sch. Dist., 541 F.3d 1202, 1207 (9th Cir. 2008).
However, we must give “due weight” to judgments of educa-
tion policy when reviewing state hearings and must take care
to “not substitute [our] own notions of sound educational pol-
icy for those of the school authorities [we] review.” Seattle
Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996)
(internal citation omitted). The extent of deference given to
the state hearing officer’s determination is within our discre-
tion. Ashland Sch. Dist. v. Parents of Student R.J., 588 F.3d
1004, 1009 (9th Cir. 2009). We give deference to the state
hearing officer’s findings particularly when, as here, they are
21242 K.D. v. HAWAII DEPARTMENT OF EDUCATION
thorough and careful. Union Sch. Dist. v. Smith, 15 F.3d 1519,
1524 (9th Cir. 1994).
We review the district court’s factual determinations for
clear error, even when based on the administrative record. J.L.
v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir.
2010). A finding of fact is clearly erroneous when the evi-
dence in the record supports the finding but “the reviewing
court is left with a definite and firm conviction that a mistake
has been committed.” Burlington Northern, Inc. v.
Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983).
K.D., as the party challenging the district court’s ruling,
bears the burden of proof on appeal. Ms. S. ex rel. G. v.
Vashon Island Sch. Dist., 337 F.3d 1115, 1127 (9th Cir.
2003).
DISCUSSION
I. K.D.’s Stay Put Placement
[1] Before evaluating the substance of the 2007 and 2008
IEPs challenged by K.D., we address K.D.’s argument that he
is entitled to stay at Loveland until the termination of these
proceedings, pursuant to the stay put provision of the IDEA.
The “stay put” provision provides that “during the pendency
of any proceedings conducted pursuant to this section, unless
the State or local educational agency and the parents other-
wise agree, the child shall remain in the then-current educa-
tional placement of the child.” 20 U.S.C. § 1415(j). K.D.
contends that the district court erred in determining that
K.D.’s stay put placement was not at Loveland.
A. Pre-August 29, 2008 Effect
[2] We first hold that K.D. is not entitled to reimbursement
based on the stay put provision for the 2007-08 school year.
The stay put provision may only be invoked “during the pen-
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21243
dency of any proceedings.” 20 U.S.C. § 1415(j). Accordingly,
the stay put provision does not apply unless and until a
request for a due process hearing is filed. See Zvi D. v.
Ambach, 694 F.2d 904, 906 (2d Cir. 1982) (“This provision
is, in effect, an automatic preliminary injunction.”). K.D.’s
request for a due process hearing was not filed until August
28, 2009. Thus, the stay put provision can have no effect on
K.D.’s enrollment at Loveland during the 2007-08 school year
or during the 2008-09 school year prior to August 28, 2009—
during which no due process hearing was pending.
B. Post-August 29, 2008 Effect
[3] Whether the application of the stay put provision of the
IDEA requires that K.D. remain at Loveland Academy after
the filing of the August 29, 2008 due process hearing request
depends on whether Loveland is K.D.’s “current educational
placement.”1 20 U.S.C. § 1415(j). We have previously recog-
nized that the term “current educational placement” is not
defined within the IDEA. N.D., 600 F.3d at 1114. “We have
interpreted ‘current educational placement’ to mean ‘the
placement set forth in the child’s last implemented IEP.’ We
have offered no additional guidance on the issue.” Id. (inter-
nal citation omitted).
The dispute between the DOE and K.D. centers on the
effect, if any, of the March 2007 settlement on K.D.’s educa-
tional placement. K.D. argues that he was placed at Loveland
by the settlement agreement, and that Loveland remained his
current educational placement because he continued to attend
school and he never accepted any of the subsequent IEPs
offered by the DOE. In response, the DOE contends that the
settlement agreement only required the DOE to pay K.D.’s
1
The stay put provision potentially applies to a civil action filed in fed-
eral district court challenging agency decision, as well as an appeal from
the district court’s final judgment. Joshua A. v. Rocklin Unified Sch. Dist.,
559 F.3d 1036, 1038 (9th Cir. 2009).
21244 K.D. v. HAWAII DEPARTMENT OF EDUCATION
Loveland tuition for the 2006-07 school year and did not
make Loveland K.D.’s placement for purposes of the stay put
provision. We agree with the DOE.
[4] We have previously held that a post-placement admin-
istrative or judicial determination can operate to define the
“current educational placement” of a child. Where a parent
unilaterally changes the placement of a child, but a subse-
quent administrative or judicial decision confirms that the
parental placement is appropriate, the decision “constitute[s]
an agreement by the State to the change of placement” and the
placement becomes the “current educational placement” for
the purposes of the stay put provision. See Clovis Unified Sch.
Dist. v. California Office of Admin. Hearings, 903 F.2d 635,
641 (9th Cir. 1990) (citing Burlington, 471 U.S. at 372-73);
see also L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900,
903 (9th Cir. 2009) (“Where the agency or the court has ruled
on the appropriateness of the educational placement in the
parents’ favor, the school district is responsible for appropri-
ate private education costs regardless of the outcome of an
appeal.”). However, such a favorable decision for a parent
must expressly find that the private placement was appropri-
ate. See L.M., 556 F.3d at 903-04 (finding that there was no
implied “current educational placement” because the district
court’s ruling in favor of the parents was on procedural
grounds and the court never adjudicated the appropriateness
of the private placement).
[5] The cited cases do not apply directly to this case
because there was no favorable agency or district court deci-
sion agreeing with K.D.’s initial unilateral placement at Love-
land. Rather, K.D. urges us to construe the March 2007
settlement agreement as having the same effect. We have
never determined whether a settlement agreement may have
the same legal effect as an affirmative agency decision to
define a student’s “current educational placement.” However,
two cases that have addressed this issue (neither of which is
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21245
binding upon us) provide helpful reasoning for our consider-
ation.
In Zvi D., a student was transferred by his parents to a pri-
vate school, different from the one in which he had been
placed by the state. 694 F.2d at 907. After his parents filed a
due process hearing request, the Board of Education agreed to
provide funding at the new private school for the 1978-79
school year through an agreement that also provided for a
review of the student’s classification, to be conducted at the
end of the school year with a “a view toward placing him in
an appropriate public program in September, 1979.” Id. The
agency subsequently reevaluated the student and placed him
for the 1979-80 school year at a public school. Id. The Second
Circuit concluded that the new private school was not the
“current educational placement” because the agreement did
not constitute “public agency placement” of the student at the
school and no agency decision ever determined that the par-
ent’s private placement was appropriate. Id. at 908. Thus,
“during [ ] review of his initial placement, [the student] has a
right to a place in a public school or he may remain at [the
new private school] at his parent’s expense.” Id. (internal cita-
tions omitted). While agreeing that the agency would have
been required to pay for the student’s private school education
had the agency “previously agreed to, or been ordered to pro-
vide private school placement,” the court stated that
“[p]ayment and placement are two different matters.” Id.
In contrast, K.D. urges us to follow the outcome in Bay-
onne Board of Education v. R.S., 954 F. Supp. 933 (D.N.J.
1997). In Bayonne, an autistic student was originally placed
in a public school, but his parents removed him from that
school, placed him in a private school, and filed a request for
a due process hearing. Id. at 935. The due process hearing
resulted in a settlement agreement wherein the Board agreed
to “undertake the placement” of the student at the private
school effective March 1, 1996. Id. The settlement agreement
further stated that the student would return to public school
21246 K.D. v. HAWAII DEPARTMENT OF EDUCATION
starting September 1996, subject to the satisfaction of four-
teen conditions. Id. at 935-36. The court found the factual sit-
uation in Bayonne to be distinguishable from that in Zvi D.
because the Bayonne settlement agreement specifically called
for “placement.” Id. at 942 (“Significantly, the child in Zvi D.
was never placed in the private school—the Board of Educa-
tion merely agreed to pay for his tuition until the review of his
classification could be conducted.”). Moreover, the Bayonne
court also recognized that the placement did not necessarily
end in September 1996 because this transition was subject to
the satisfaction of fourteen conditions, and the parties dis-
puted whether these conditions had been met. Id.
We do not find the reasoning in Zvi D. and Bayonne to be
inconsistent. Both cases involved settlement agreements, but
only the Bayonne agreement actually “placed” the student,
whereas the Zvi D. agreement only called for tuition reim-
bursement. Furthermore, the Zvi D. agreement clearly con-
templated transition out of the school at the end of the school
year, whereas transition to a public school under the Bayonne
agreement was subject to the satisfaction of fourteen condi-
tions.
[6] We find that K.D.’s case is more analogous to the facts
in Zvi D. than those in Bayonne. K.D.’s settlement agreement
never called for “placement,” and only required tuition reim-
bursement. This is not an insignificant semantic difference.
Rather, it was logical for the DOE to settle the case by agree-
ing to pay tuition for a limited amount of time in order to
avoid the costs associated with a full due process hearing.
However, it does not follow that, by doing so, the DOE had
conducted the detailed evaluation required to determine
whether Loveland was the proper educational institution for
K.D. under the IDEA.
Moreover, K.D.’s settlement agreement also stated that
K.D. would transition to a public school at the end of the
2006-07 school year. This fact stands in stark contrast to the
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21247
conditions that had to be satisfied in the Bayonne agreement
prior to public school placement. Although K.D.’s transition
was subject to an “if appropriate” qualifier, the IDEA itself
requires that any placement be appropriate and thus, the quali-
fier cannot be understood as a negotiated limitation on K.D.’s
transition. The settlement agreement could only be reasonably
read to be time-limited to the 2006-07 school year. The K.D.
settlement agreement specified in several places that it applied
only to the 2006-07 school year: (1) tuition was to be reim-
bursed for the 2006-07 school year; (2) DOE’s employees
were to conduct evaluations of K.D. during the 2006-07
school year; and (3) C.L. was required to consent to observa-
tions of K.D., and the release of his educational records at
Loveland for the 2006-07 school year. Furthermore, the 2007
IEP proposed by the DOE clearly shows that the DOE did not
consider it appropriate for K.D. to remain at Loveland. Thus,
the “if appropriate” language cannot reasonably be read to
give C.L. the power to unilaterally decide to keep K.D. at
Loveland, and expect the DOE to continue paying tuition.
Accordingly, K.D.’s stay put placement is not at Loveland
because the March 2007 settlement agreement did not place
him there, and was limited to the 2006-07 school year.2
K.D. next refers us to a Sixth Circuit case, Thomas v. Cin-
cinnati Board of Education, 918 F.2d 618, 626 (6th Cir.
1990), for the proposition that “where . . . the dispute arises
before any IEP has been implemented, the ‘current educa-
tional placement’ will be the operative placement under which
the child is actually receiving instruction at the time the dis-
pute arises.” Though this language, read in isolation, may
appear helpful to K.D.’s position, a close examination of the
2
K.D. also argues that the placement in Zvi D. was made pursuant to an
exception to the stay put provision, so it does not apply to this case. The
referenced exception states that a student does not have to remain at an
educational placement during the pending due process period if the “State
or local educational agency and the parents otherwise agree.” 20 U.S.C.
§ 1415(j). We reject this interpretation of Zvi D. because the opinion
makes no reference to such an exception in its analysis.
21248 K.D. v. HAWAII DEPARTMENT OF EDUCATION
case clearly shows that the case is not on point. Thomas
involved a child who suffered from severe psychomotor retar-
dation, was prone to seizures, and was required to eat through
a feeding tube and breathe through a tracheotomy. Id. at 621.
Cincinnati Public Schools originally provided the child with
one hour of home training per week, and changed it to one
hour of training per day after a change in state funding regula-
tions. Id. at 621-22. The IEP team proposed a placement for
the child at an out-of-home program in a nearby school. Id.
at 621. However, of necessity, the child had to be transported
to school and, before the IEP was implemented, a dispute
arose over who would bear the cost of transportation, and
whether it would be safe to transport the child in her condi-
tion. Id. Thus, at the time the request for a due process hear-
ing was filed, the child was still receiving at-home care. The
court held that the child was to continue receiving at-home
care as her stay put placement during the pendency of the pro-
ceedings. Id. at 626. Thomas differs from K.D.’s situation
because the at-home care the child was receiving was pro-
vided by the state prior to the IEP dispute, and there was no
evidence that this prior agreement was time-limited.
[7] We acknowledge that the purpose behind the stay put
provision of the IDEA is to maintain the status quo. See, e.g.,
Thomas, 918 F.2d at 626. In this case, at the time the due pro-
cess hearing was filed, K.D. had attended Loveland for over
a year without the DOE’s permission and in spite of numerous
letters from the DOE stating that they would not pay for his
continued attendance there. Nothing in the stay put provision
prevented K.D. from staying at Loveland. Rather, the issue is
who is required to pay for the Loveland tuition during the pro-
ceedings. Were K.D. to succeed in this case, and were we to
conclude that the DOE denied him a FAPE, K.D. may be eli-
gible to receive tuition reimbursement regardless of the stay
put provision. See Zvi D., 694 F.2d at 908 n.8. However,
applying the reasoning of both Zvi D. and Bayonne, we hold
that Loveland Academy is not K.D.’s stay put placement
because the DOE only agreed to pay tuition for the limited
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21249
2006-07 school year, and never affirmatively agreed to place
K.D. at Loveland.
II. A Free and Appropriate Public Education
Next, we consider whether the district court erred in con-
cluding that the 2007 and 2008 IEPs were offers of a FAPE,
and offered K.D. an actual placement. We conclude that
K.D.’s tuition reimbursement claim for the 2007-08 school
year is time-barred and that the district court did not err in
finding that the 2007 and 2008 IEPs comply with IDEA
requirements.
A. Timeliness of Request for Tuition Reimbursement
[8] K.D. challenges the district court’s finding that his
request for tuition reimbursement for the 2007-08 school year
was time-barred. The IDEA provides an opportunity for any
party to seek an impartial hearing, and permits a state to set
the timeline for when such a request must be filed. 20 U.S.C.
§ 1415(b)(6)(B). Hawaii has set a timeline for the filing of a
request seeking a due process hearing, in Hawaii Revised
Statutes Section 302A-443. The statute, in relevant part, read
as follows during the 2007-08 school year:
(a) An impartial hearing may be requested by any
parent or guardian of a child with a disability, or by
the department, on any matter relating to the identifi-
cation, evaluation, program, or placement of a child
with a disability; provided that the hearing is
requested:
(1) Within two years of the date the parent, guard-
ian, or department knew or should have known about
the alleged action that formed the basis of the
request for a hearing; and
(2) Notwithstanding paragraph (1), within ninety
days of a unilateral special education placement,
21250 K.D. v. HAWAII DEPARTMENT OF EDUCATION
where the request is for reimbursement of the costs
of the placement.
Haw. Rev. Stat. § 302A-443.3 Thus, whether the two-year or
90-day statute of limitations applies depends on whether a
placement is a “unilateral special education placement.” Id.
§ 302A-443(2).
i. Unilateral Placement
K.D. contends that a “unilateral placement” occurs only
when a parent physically removes the child from public
school and enrolls him or her in a private school, without
DOE agreement. K.D. also asserts that his placement at Love-
land was bilateral because it was agreed upon in the 2007 set-
tlement agreement with the DOE, and that settlement
agreement was not time-limited.
[9] The term “unilateral placement” is not defined by stat-
ute, and at least two Hawaii-based courts have concluded that
the legislative history of Section 302A-443 is silent on the
meaning of “unilateral” and “placement.” See D.C. v. Dep’t
of Educ., 550 F. Supp. 2d 1238, 1248 (D. Haw. 2008); Makiko
D. v. Hawaii, No. 06-CV-00189, 2007 WL 11453811, at *7
(D. Haw. April 17, 2007). Nevertheless, the Makiko D. court
defined the term as follows, based on its plain meaning: “a
unilateral special education placement occurs when one party
unilaterally (i.e., without consent or agreement of the other
party) enrolls the student in a special education program.” Id.
at *7. For purposes of this opinion, and given the plain mean-
3
The statute was amended effective July 1, 2008 to change the ninety
day limitation to “one hundred and eighty calendar days.” 2008 Hawaii
Laws Act 179 (S.B. 2004). However, K.D.’s claim likely accrued in July
2007 when the 2007 IEP was presented and thus the request for a hearing
had to be filed within 90 days. Regardless, as the district court concluded,
the request was filed more than a year later, in August 2008, so it would
be untimely under either the 90-day or 180-day rule if the placement was
unilateral.
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21251
ing of the statute, we adopt the definition of “unilateral spe-
cial education placement” used in Makiko D. As so defined,
the term “unilateral special education placement” does not
support K.D.’s contention that “placement” only occurs upon
the physical removal of a student from one school to another.
Here, the agreement between the DOE and K.D. ended after
the 2006-07 school year, and the DOE proposed a new IEP
placing K.D. at a different school. However, C.L. unilaterally
decided to enroll K.D. at Loveland for the 2007-08 school
year. This enrollment thus occurred “without consent or
agreement of the other party.” Id.
[10] K.D.’s contention that the settlement agreement is not
time-limited is likewise without merit, as discussed supra at
section I.B, in our stay put provision analysis. K.D. also
argues that the settlement agreement somehow modifies
K.D.’s enrollment at Loveland to be bilateral from that point
forward. K.D. claims that the effect of the agreement is analo-
gous to situations in which a hearing officer’s decision in
favor of the parent changes a unilateral placement to a bilat-
eral placement. To support this argument, K.D. cites D.C. v.
Department of Education, which held that “a favorable
administrative ruling constituted the State’s agreement to the
private placement” and changed an otherwise unilateral place-
ment to a bilateral placement. 550 F. Supp. 2d at 1249. How-
ever, in so holding, the D.C. court relied on the reasoning that
we have applied to the stay put provision of the IDEA. Id.
(citing Burlington, 471 U.S. at 372 (holding same in the con-
text of the stay put provision of the IDEA) and Clover, 903
F.2d at 641 (holding same also in the stay put context)). Thus,
just as we found that Loveland was not K.D.’s stay put place-
ment based on the settlement agreement, we also conclude
that the settlement agreement did not operate to change the
placement from unilateral to bilateral.
ii. Timeliness of the 2007-08 School Year Claim
[11] Because K.D.’s enrollment at Loveland for the 2007-
08 school year is a unilateral placement, the 90-day statute of
21252 K.D. v. HAWAII DEPARTMENT OF EDUCATION
limitation applies. K.D. filed his request for an impartial due
process hearing challenging the 2007 IEP on August 29,
2008. This was over a year after his enrollment at Loveland
for the 2007-08 school year. Thus, K.D.’s claim requesting
tuition reimbursement for the 2007-08 school year is barred
by the statute of limitations in Section 302A-443(2).
B. The 2007 and 2008 IEPs
“[A] state must comply both procedurally and substantively
with the IDEA.” M.L. v. Fed. Way Sch. Dist., 394 F.3d 634,
644 (9th Cir. 2005). The court must determine (1) whether the
state complied with procedures set forth in the IDEA and (2)
whether the state developed an IEP that is “reasonably calcu-
lated to enable the child to receive educational benefits.”
Rowley, 458 U.S. at 206-07. Procedural violations may be
harmless if they do not “result[ ] in a loss of educational
opportunity or significantly restrict parental participation.”
L.M.. 556 F.3d at 910. K.D. challenges the 2007 and 2008
IEPs on several procedural and substantive grounds.
i. Procedural Requirements
a. Predetermined Placement
K.D.’s first procedural contention is that placement was
determined prior to the 2007 IEP meeting, in violation of the
IDEA. K.D. asserts that the DOE settled on Pearl Harbor Kai
as a placement for K.D. about three weeks after the settlement
agreement was signed in March 2007, and that the IEP team
did not consider any other placement options for K.D.
[12] A school district violates the IDEA if it predetermines
placement for a student before the IEP is developed or steers
the IEP to the predetermined placement. W.G. v. Bd. of Tr. of
Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992), superseded by statute on other grounds, as recognized
in R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932 (9th
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21253
Cir. 2007); see also Spielberg v. Henrico Cnty. Pub. Schs.,
853 F.2d 256, 258-59 (4th Cir. 1988). Predetermination vio-
lates the IDEA because the Act requires that the placement be
based on the IEP, and not vice versa. Spielberg, 853 F.2d at
259.
[13] Here, the fact that the DOE scouted out Pearl Harbor
Kai in March of 2007 as a place of potential placement for the
2007 IEP is not conclusive evidence that the DOE had
decided to place K.D. there. See, e.g., Doyle v. Arlington
Cnty. Sch. Bd., 806 F. Supp. 1253, 1262 (E.D. Va. 1992) (not-
ing that school officials must come to an IEP meeting with
“an open mind” but may have given thought to placement).
The first 2007 IEP meeting was held on April 5, 2007, shortly
after the DOE’s visit to Pearl Harbor Kai. However, a review
of the prior written notices of placement from the 2007 and
2008 IEPs indicates that other options were considered,
including placement at Loveland, at another private school
setting at Hauoli Na Kekei, and in a full inclusion class setting
with same age peers without resource special education ser-
vices. The DOE rejected the full inclusion class setting
because K.D. required a more “distraction free environment
with more specialized activities to target his learning style and
rate of learning.” The DOE rejected Hauoli Na Kekei because
it only enrolls children with severe communication and
behavioral needs, and it feared that K.D. might not develop
his potential communication skills in that setting. Finally, the
DOE rejected Loveland because Pearl Harbor Kai was a less
restrictive environment where K.D. could receive similar ser-
vices to those he was receiving at Loveland and, in addition,
have immediate access to non-disabled peers in that commu-
nity. Thus, the record reveals that the DOE considered other
options besides Pearl Harbor Kai, reasonably rejected them,
and therefore did not predetermine K.D.’s placement.
b. Parental Participation in the IEP Process
K.D. also argues that his parent, C.L., was deprived of an
opportunity to participate in the IEP process, and that the dis-
21254 K.D. v. HAWAII DEPARTMENT OF EDUCATION
trict court erred in blaming C.L. for not cooperating with the
IEP team, and missing both the July 2007 and July 2008 IEP
meetings.
[14] Parental participation in the IEP process is an integral
part of the IDEA. See Amanda J., 267 F.3d at 890-91. The
regulations require the DOE to take steps to ensure that the
parents of a disabled student is present at the IEP meeting, or
at least afforded the opportunity to participate. 34 C.F.R.
§ 300.322(a). However, an IEP meeting may take place with-
out a parent in attendance if the agency is “unable to convince
the parent that they should attend.” Id. § 300.322(d). In such
a situation, the agency must “keep a record of its attempts to
arrange a mutually agreed on time and place.” 34 C.F.R.
§§ 300.322(d)(1)-(3); see also Shapiro ex rel. Shapiro v. Par-
adise Valley Unified Sch. Dist., 317 F.3d 1072, 1078 (9th Cir.
2003) (“[T]he school district must document phone calls, cor-
respondence, and visits to the parents demonstrating attempts
to reach a mutually agreed upon place and time for the meet-
ing.”). We conclude that the record clearly reveals that the
DOE attempted to have C.L. participate in both the 2007 and
2008 IEP meetings.
C.L. and the Loveland director were in attendance at the
first IEP meeting held on April 5, 2007, which was continued
to July due to time constraints. C.L. and the DOE continued
to correspond from May 2007 through July 2007 regarding
the scheduling of tests for K.D., in preparation for his IEP. On
June 28, 2007, the DOE wrote C.L. a letter reminding her that
the parties had agreed to continue the April IEP meeting to
July, and suggesting three possible dates for the meeting. The
letter also indicated that if C.L. did not respond by July 13,
2007, the meeting would be held on July 25, 2007. C.L.
signed for receipt of this letter on June 30, 2007. The DOE
did not receive a response to its June 28 letter, and sent C.L.
another letter on July 13, 2007 stating that because it had not
heard from C.L., the meeting was scheduled for July 25,
2007. C.L. signed for receipt of this letter on July 14, 2007.
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21255
[15] This pre-IEP meeting correspondence shows that the
DOE presented C.L. with several opportunities to raise any
concerns with the proposed meeting date. The hearing officer
and district court both found that, after the fact, C.L. gave
conflicting stories about why she was not present at the meet-
ing. C.L. originally testified that she was escorting her son to
the mainland for the entire month of July 2007, as required by
a divorce decree, but later changed her testimony, and admit-
ted that she was in Hawaii, but contended that she could not
attend the meeting because she had started a new job and
needed money. The record is devoid of any evidence show-
ing that C.L. attempted to contact the DOE to reschedule the
meeting. See Shapiro, 317 F.3d at 1078 (finding that because
the parents asked to reschedule the meeting, the school district
violated the IDEA by prioritizing the schedule of its represen-
tatives over the parents). Indeed, even after the IEP meeting
occurred, C.L. still failed to respond to several letters from the
DOE—sent in July, August, October, December, and Febru-
ary, respectively—asking whether she accepted the 2007 IEP
offered to K.D., and encouraging her to contact the DOE to
discuss any concerns, changes, or issues regarding the IEP.
We conclude that this record clearly shows that the DOE sat-
isfied its duty to involve C.L. in the 2007 IEP process, as
required under the IDEA.
Similarly, the record shows that the DOE also attempted to
find a mutually acceptable time and place for the July 2008
IEP meeting. The DOE began corresponding with C.L. in
preparation for the 2008 IEP meeting in May 2008, by
requesting written consent to conduct observations of K.D.,
and requesting his performance reports. The DOE repeated its
requests on June 19 and July 10, 2008. In a letter dated July
10, 2008, the DOE suggested three dates for the IEP meeting,
and indicated that if no response was received before July 16,
2008, the meeting would be set for July 25, 2008. C.L. failed
to respond to any of the referenced correspondence, and did
not attend the July 25, 2008 meeting. Later, C.L. cited a work
conflict as her reason for missing the meeting.
21256 K.D. v. HAWAII DEPARTMENT OF EDUCATION
[16] As was the case with the previous year’s IEP meeting,
despite receiving the DOE’s letters, C.L. never attempted to
contact the DOE to reschedule the meeting. We conclude that
the DOE satisfied its duty to involve C.L. in the 2008 IEP
process, as required under the IDEA.
ii. Substantive Violations
We next consider whether K.D.’s 2007 and 2008 IEPs were
substantively appropriate for K.D., and we conclude that they
were.
a. The 2007 and 2008 IEPs
K.D. argues that the 2007 and 2008 IEPs did not offer ade-
quate goals and objectives, and failed to address K.D.’s edu-
cational needs. Moreover, K.D. contends that the goals set
forth in the IEPs were poorly written, not measurable, and
vague.
In preparing K.D.’s 2007 IEP, the DOE conducted several
tests that were documented in the IEP. These included (1)
occupational therapy testing, which assessed K.D.’s motor
skills, (2) academic diagnostic testing, which tested K.D.’s
knowledge of body parts, colors and shapes, (3) cognitive
development assessment, (4) communication testing, and (5)
speech-language assessment. Based on these assessments, the
IEP provided K.D. with occupational therapy services,
speech/language therapy, special education, individualized
instructional support, behavior intensive support services, par-
ent training, and 1:1 after-school support. Furthermore, the
IEP stated that K.D. should receive verbal/physical prompts
and auditory/visual cues as needed, constant supervision and
redirection to ensure that objects are not put in his mouth, and
constant supervision to ensure that he remains with the class.
The hearing officer concluded that the goals and treatment
plan set forth in the 2007 IEP were substantially similar to the
plan that was in place for K.D. at Loveland.
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21257
[17] K.D.’s only specific, substantive complaint about the
2007 IEP is that the DOE never offered a 1:1 skills trainer.
However, both the hearing officer and the district court con-
cluded that the prescribed individualized instructional support
and 1:1 after-school support met the requirement for a 1:1
skills trainer. K.D.’s argument to the contrary is insufficient
to disturb this finding in the absence of evidence that these
services would not be on a 1:1 basis.
[18] K.D. also claims that the goals and assessment the
DOE proffered are generally insufficient. We disagree. The
IEP showed a focus on evaluating K.D.’s speech and commu-
nication progress—areas identified by C.L. as the areas most
crucial to K.D.’s development—and offered him services like
speech/language therapy and behavior intensive support to
address concerns in those areas. Furthermore, with respect to
goals, the IEP provided for specific goals and areas where
K.D. needed to improve. For example, under fine motor skills,
the IEP indicated that K.D. could not screw or unscrew a cap,
turn pages one at a time, or cut with scissors, and needed
assistance dressing, using the toilet, and with grooming and
hygiene. Likewise, the IEP stated that K.D. needed to
improve with other goals, such as to increase eye contact and
to respond to social greetings and verbal cues. K.D. has not
shown that the IEP the DOE provided is not “reasonably cal-
culated to enable [him] to receive educational benefits.” Row-
ley, 458 U.S. at 206-07.
The DOE prepared the 2008 IEP for K.D. based on many
of the same tests considered in the 2007 IEP. K.D. faults the
DOE for not conducting updated tests. However, the record
shows that the DOE requested information regarding K.D.’s
performance at Loveland in 2008 in order to update its test
results and information about K.D.’s performance. The DOE
sent C.L. letters on four separate occasions between March
14, 2008 and July 10, 2008 requesting written consent to
observe K.D. at Loveland, and requesting access to his perfor-
mance reports. Not having received written consent or any
21258 K.D. v. HAWAII DEPARTMENT OF EDUCATION
records from Loveland due to C.L.’s lack of cooperation, the
DOE could only prepare a 2008 IEP that was substantially
similar to the 2007 IEP.
[19] K.D. argues that the district court erred in blaming
C.L. for the DOE’s inability to perform further testing in
preparation for the 2008 IEP. While it is the DOE’s responsi-
bility to develop the IEP, the record shows that the DOE took
reasonable steps to prepare the 2008 IEP. While C.L. testified
to the hearing officer that she gave verbal consent to the DOE
to observe K.D., she did not provide details on when this
communication allegedly took place. In light of the letters
produced by the DOE requesting consent from C.L., it
appears that both the hearing officer and the district court
gave C.L.’s claim little weight in reaching the decision that it
was reasonable for the DOE to base the 2008 IEP largely on
the 2007 tests. We find that the district court did not err, par-
ticularly in light of the documented issues between the DOE
and Loveland regarding C.L.’s history of withholding and
revoking consent. The 2008 IEP—like the 2007 IEP—was a
FAPE.
b. Actual Placement
K.D. also contends that he was never offered actual “place-
ment” in either the 2007 or 2008 IEP offers, and alternatively,
that any placement he may have been offered was inappropri-
ate. Under the IDEA’s regulations, a placement must be made
in compliance with the following:
(a) The placement decision
(1) 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
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21259
(2) Is made in conformity with the LRE provisions
of this subpart, including §§ 300.114 through
300.118;
(b) The child’s placement—
(1) Is determined at least annually;
(2) Is based on the child’s IEP; and
(3) Is as close as possible to the child’s
home;
34 C.F.R. § 300.116. The least restrictive environment provi-
sion (LRE) requires that the state “have in effect policies and
procedures to ensure that public agencies in the state meet the
LRE requirements of this section and §§ 300.115 through
300.120.” Id. § 300.114. Hawaii Administrative Rules defines
the LRE requirement as “to the maximum extent appropriate,
educating students with disabilities . . . with students who are
non-disabled and removing students with disabilities from the
regular educational environment only if the nature or severity
of the disability is such that education in regular classes with
the use of supplementary aids and services cannot be achieved
satisfactorily.” Haw. Admin. R. § 8-60-2; see also 34 C.F.R.
§ 300.114(a)(2).
The 2007 IEP offered to K.D. specified a “free and appro-
priate public education at Pearl Harbor Kai elementary to be
supported by an after-school program (2hrs/daily) . . . in a
smaller student to teacher ratio [setting] within a fully self
contained environment designed . . . especially for the stu-
dents.” The 2007 IEP further stated that K.D. would “partici-
pate with general education peers for the following activities,
when deemed appropriate: lunch in the cafeteria, recess and
school wide assemblies.” The 2008 IEP offered to K.D. speci-
fied a “placement in a special education setting at Pearl Har-
bor Kai in a small group setting with not more than ten (10)
21260 K.D. v. HAWAII DEPARTMENT OF EDUCATION
students of varying levels of competencies, but with language
abilities that will assist in facilitating [K.D.]’s communication
and social skill development.” The IEP also indicated that
K.D. may participate with non-disabled peers in after-school
group activities and outings if deemed appropriate.
[20] We conclude that both the 2007 and 2008 IEPs
offered K.D. actual placement. Both identified the specific
school K.D. was to attend—Pearl Harbor Kai Elementary—
along with a description of the classroom environment. The
cases that K.D. cites for the proposition that a placement is
only valid if the exact room where K.D. would be placed is
specified are inapposite. In A.K. ex rel. J.K. v. Alexandria City
School Board, 484 F.3d 672, 681 (4th Cir. 2007), the court
held “as a matter of law that because [the agency] failed to
identify a particular school, the IEP was not reasonably calcu-
lated to enable [the child] to receive educational benefits.” In
that case, the IEP only recommended a private day school, but
did not specify the specific private day schools being consid-
ered. Id. The court reasoned that without a specific school
being named, “the parents were left to fend for themselves to
determine whether any private day school in their area . . .
would be a satisfactory fit.” Id. In contrast, K.D.’s IEP speci-
fied Pearl Harbor Kai as the school where he would be placed
and offered that he would be placed into one of the three fully
self contained classrooms that were available at the school.
There was no question that he would have had a place in a
classroom had he accepted the FAPE offer. Furthermore, in
Union School District v. Smith, we held that a school district
must formally offer an appropriate educational placement. 15
F.3d at 1526. In that case, the school district claimed that it
did not need to do so because the parents visited the school
and rejected it before a formal placement offer was actually
made. Id. We held that the offer of placement was a “formal
requirement [that] has an important purpose that is not merely
technical” and that it “creates a clear record that will do much
to eliminate troublesome factual disputes many years later
about when placements were offered, what placements were
K.D. v. HAWAII DEPARTMENT OF EDUCATION 21261
offered, and what additional educational assistance was
offered to supplement a placement, if any.” Id. In contrast,
placement was formally offered to K.D., and any dispute that
C.L. may have had with the appropriateness of the placement
is immaterial to whether the placement offer was formally
made.
K.D. also claims that the placement offered in Pearl Harbor
Kai was not appropriate. C.L.’s advocate, who visited Pearl
Harbor Kai with her in 2008, testified that she believed that
the classrooms were not appropriate to meet K.D.’s needs,
and were “babysitting” classes with no good role models. To
the contrary, Pearl Harbor Kai’s principal, Elynne Chung, tes-
tified that the school offered three fully self contained class-
rooms and two resource rooms. One of the classrooms had
only autistic children, but autistic children were part of the
other two classrooms as well. K.D. argues that the principal’s
testimony should be discounted because she had not reviewed
K.D.’s IEP before she showed C.L. and her advocate the
classrooms, and she was the only person who testified at the
hearing qualified to discuss the programs offered at Pearl Har-
bor Kai.
However, the record shows that the district resource
teacher, Aletha Sutton, also testified that she was familiar
with the programs and services available at Pearl Harbor Kai.
In addition, the district resource teacher testified as an expert
in special education and autism, and stated that she had
reviewed K.D.’s records and assessments and had an under-
standing of his IEP. She testified that Pearl Harbor Kai works
with students with similar and lower abilities than K.D., and
that one of the classrooms would be an appropriate placement
for K.D. K.D. contends that Sutton’s testimony should be dis-
counted because she never assessed K.D. or worked directly
with him or performed an classroom assessment of K.D. her-
self. However, the record reveals that Sutton additionally tes-
tified that she reviewed K.D.’s records and had observed him
before he left for Loveland. The district court could properly
21262 K.D. v. HAWAII DEPARTMENT OF EDUCATION
consider the testimony of Pearl Harbor Kai’s principal and the
district resource teacher, and conclude that the placement
offered in one of Pearl Harbor Kai’s classroom was an appro-
priate placement for K.D.
[21] Furthermore, the record shows that Pearl Harbor Kai
was more appropriate than Loveland as the least restrictive
environment for K.D. Both K.D.’s 2007 and 2008 IEPs plac-
ing him at Pearl Harbor Kai included provisions providing
that he would have the opportunity to interact with non-
disabled peers. In contrast, Loveland placed K.D. in a class-
room with only students who had mental health or learning
disabilities, and K.D. proffered no evidence indicating that he
had any opportunity there to interact with his non-disabled
peers. K.D.’s Loveland placement does not square with one
of the main purposes behind the IDEA—to combat the “ap-
parently widespread practice of relegating handicapped chil-
dren to private institutions or warehousing them in special
education classes.” N.D., 600 F.3d 1104 at 1115. Thus, the
record evidence supports the district court’s decision that
K.D.’s 2007 and 2008 IEPs offered appropriate placement.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court.