                           NOT FOR PUBLICATION                           FILED
                                                                          MAY 9 2019
                    UNITED STATES COURT OF APPEALS
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT         1




R. E. B., individually and on behalf of his      No.   14-15895
minor child, J.B.,
                                                 D.C. No.
             Plaintiff-Appellant,                1:13-cv-00016-DKW-BMK

    v.
                                                 MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
EDUCATION and KATHRYN
MATAYOSHI, in her official capacity as
Superintendent of the Hawaii Public
Schools,

             Defendants-Appellees.


                  Appeal from the United States District Court
                            for the District of Hawaii
                 Derrick Kahala Watson, District Judge, Presiding

               Argued February 23, 2017; Submitted April 3, 2018
                              Honolulu, Hawaii

Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.




*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
       This case concerns J.B.’s transition from Pacific Autism Center (“PAC”), a

small private school for students with autism and other special needs, into a Hawaii

public school named Koko Head Elementary School (“Koko Head”). During that

time, Hawaii Department of Education (“DOE”) personnel convened to develop an

Individualized Education Plan (“IEP”) for J.B.’s transition. J.B.’s father, R.E.B.,

raised various objections to J.B.’s proposed IEP, but the administrative hearings

officer found that his IEP was adequate. The district court affirmed. R.E.B. then

appealed to this court. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

       1. As a threshold matter, DOE claims this case is moot because J.B.

received relief beyond that originally requested. But a case is moot “only when it

is impossible for a court to grant any effectual relief whatever to the prevailing

party.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013) (quoting Knox v.

Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)). While R.E.B.

initially sought reimbursement of PAC tuition for the 2012–2013 school year,

which DOE provided, his due process complaint also sought reimbursement for

transportation and compensatory education, which he never received. Because it is

still possible for us to grant effectual relief, this case is not moot.

       2. Next, R.E.B. contends that DOE violated the Individuals with Disabilities

Education Act (“IDEA”) because it denied J.B. a free appropriate public education


                                             2
(“FAPE”). We review the district court’s factual findings for clear error and its

legal conclusions, including whether an IEP provides a FAPE, de novo. Doug C.

v. Haw. Dep’t of Educ., 720 F.3d 1038, 1042 (9th Cir. 2012).

      “A FAPE must be ‘tailored to the unique needs of the handicapped child by

means of an [IEP].’” M.C. v. Antelope Valley Union High Sch. Dist., 858 F.3d

1189, 1194 (9th Cir. 2017) (quoting Hendrick Hudson Cent. Sch. Dist. Bd. of Educ.

v. Rowley, 458 U.S. 176, 181 (1982)). To constitute a denial of a FAPE,

procedural errors must “result in the loss of educational opportunity, or seriously

infringe the parents’ opportunity to participate in the IEP formulation process.”

Doug C., 720 F.3d at 1043 (quoting Shapiro v. Paradise Valley Unified Sch. Dist.

No. 69, 317 F.3d 1072, 1078 (9th Cir. 2003), superseded on other grounds by 20

U.S.C. § 1414(d)(1)(B)). Substantively, the court must determine whether the IEP

was “reasonably calculated to enable the child to receive educational benefits.” Id.

(internal quotation marks omitted). To satisfy the “educational benefit”

requirement, DOE must “provid[e] personalized instruction with sufficient support

services to permit the child to benefit educationally from that instruction.”

Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1057 (9th Cir. 2012) (quoting

Rowley, 458 U.S. at 203).

      R.E.B. first argues that DOE violated the IDEA by failing to address his

concerns about J.B.’s transition from PAC to Koko Head. Particularly, R.E.B.


                                          3
complains that J.B.’s IEP did not specify where J.B.’s summer 2012 Extended

School Year (“ESY”) services would take place when J.B. was transitioning from

PAC to Koko Head.

      DOE sufficiently addressed R.E.B.’s concerns about J.B.’s transition

services. Although J.B.’s IEP did not specify where J.B.’s summer 2012 ESY

services would take place, his IEP listed his current school as Koko Head.

Additionally, the IDEA does not require that an IEP list the specific school where

summer transition services will take place. See 20 U.S.C. § 1414(d)(1)(A).

      Further, while R.E.B. and DOE worked together to develop J.B.’s IEP, DOE

listened to R.E.B.’s concerns about J.B.’s transition and tried to address them at a

“transfer plan meeting” held on June 13, 2012. Koko Head’s principal stated that

the meeting’s purpose was “to consider [J.B.’s] possible needs to minimize

potential harmful effects in the transfer from PAC to a DOE public school

campus.” The school district decided at that meeting that, to ease J.B.’s transition,

J.B. would gradually transition during the summer from PAC to public school and

would not be “mainstreamed” (educated in a general education setting with

nondisabled peers) during this summer transition. DOE decided that this gradual

transition would help avoid anxiety that could overwhelm J.B. Thus, DOE

responded to R.E.B.’s concerns about J.B.’s transition and made a plan to facilitate




                                          4
that transition that would help J.B. adapt to his new school. Therefore, DOE did

not violate the IDEA by failing to address R.E.B’s concerns.

      3. R.E.B. also contends that DOE violated the IDEA because J.B.’s IEP did

not specify the Least Restrictive Environment (“LRE”) for J.B. The IDEA states

that children with disabilities should be placed in the LRE:

      To the maximum extent appropriate, children with disabilities,
      including children in public or private institutions or other care
      facilities, are educated with children who are not disabled, and special
      classes, separate schooling, or other removal of children with
      disabilities from the regular educational environment occurs only when
      the nature or severity of the disability of a child is such that education
      in regular classes with the use of supplementary aids and services
      cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A). Regulations interpreting the IDEA state that the IEP

must include “[a]n explanation of the extent, if any, to which the child will not

participate with nondisabled children in the regular class.” 34 C.F.R.

§ 300.320(a)(5).

      J.B.’s IEP states that J.B.

      will not participate with non-disabled peers for Reading, Writing, Math,
      Science, Social Studies, Speech/Language Therapy and Occupational
      Therapy. [J.B.] will participate with non-disabled peers for Library,
      Music, PE, Art, Computer, Hawaiian Studies, Mandarin, recesses,
      lunch, field trips, assemblies and school-wide activities. [J.B.] will also
      receive specialized instruction in the general education setting for
      Science and Social Studies activities as deemed appropriate by his
      Special Education teacher/Care Coordinator and General Education
      teacher.




                                          5
This explanation sufficiently specifies the LRE for J.B. under the IDEA because

J.B.’s IEP team (which included J.B.’s public school principal, future teachers, and

R.E.B.) decided for all academic subjects, as a general matter, whether J.B. would

participate with nondisabled peers. The IEP then delegated to J.B.’s teachers the

decision to have J.B. participate with nondisabled peers for certain “Science and

Social Studies activities” even though, as a general matter, J.B. would not

participate with nondisabled peers for these subjects. This nuanced determination

was reasonable because, as part of the Science and Social Studies curriculums,

elementary school students often perform experiments, simulations, and field

trips—the activities to which the IEP alluded. Given J.B.’s autism, it was

reasonable for the IEP team to conclude that he would be able to participate

successfully with nondisabled peers for some of these activities, but not for others,

and that those activities that would be proper for J.B. could not be determined at an

IEP meeting months or years before those activities happened. Therefore, it was

reasonable for J.B.’s IEP to specify that J.B.’s “Special Education teacher/Care

Coordinator and General Education teacher” would decide together which

particular activities J.B. would participate in with nondisabled peers with the

benefit of specialized instruction. Particularly in light of the fact that the IDEA




                                           6
provides that the LRE should be specified “[t]o the maximum extent appropriate,”

20 U.S.C. § 1412(a)(5)(A), J.B.’s IEP satisfied the IDEA’s LRE requirement.1

      4. R.E.B. contends that the IDEA required DOE to specify in J.B.’s IEP that

his one-on-one aide would have the same qualifications as a contracted skills

worker. But “nothing in [20 U.S.C. § 1414(d)] indicates that an IEP must specify

the qualifications or training of service providers.” S.M. v. Haw. Dep’t of Educ.,

808 F. Supp. 2d 1269, 1274 (D. Haw. 2011); see also 20 U.S.C.

§ 1414(d)(1)(A)(i)(IV) (requiring only that an IEP include a statement of the

“supplementary aids and services . . . to be provided to the child”); HAW. CODE R.

§ 8-60-44(a)(4) (same). Nor does the record establish that DOE even agreed to

provide an aide with such qualifications at the IEP meeting.




1
       DOE also sufficiently considered the Rachel H. balancing factors, which
school districts use to assess whether a child should be educated with nondisabled
peers or with other disabled peers. See Sacramento City Unified Sch. Dist., Bd. of
Educ. v. Rachel H. ex rel. Holland, 14 F.3d 1398, 1404 (9th Cir. 1994). These
factors include “(1) the educational benefits of placement full-time in a regular
class; (2) the non-academic benefits of such placement; (3) the effect [the child
has] on the teacher and children in the regular class; and (4) the costs of
mainstreaming [the student].” Id.
       As the district court concluded, the IEP team “engaged in a thorough
analysis that incorporated all four of the Rachel H. factors.” Notes from, and an
audio recording of, the May 7, 2012, IEP meeting confirm that the district court
was right. The IEP team discussed the Rachel H. factors for nearly an hour at an
IEP meeting. During this time, the members of the IEP team completed a
worksheet that helped the team understand how the different Rachel H. factors cut
in favor of educating J.B. with nondisabled peers or with other disabled peers.

                                         7
      5. Finally, R.E.B. contends that DOE violated the IDEA by not specifying

the use of Applied Behavioral Analysis (“ABA”) methodology in J.B.’s IEP. At

PAC, J.B.’s teachers used ABA, a teaching methodology for students with autism.

R.E.B. wanted DOE to specify in J.B.’s IEP that ABA methodology would be used

with J.B. At an IEP meeting on May 9, 2012, J.B.’s father directly stated that he

expressed a strong preference for “pure VB-MAPP,” a particular type of ABA

methodology. However, at that meeting, J.B.’s future teachers stated that they

thought it was best to use multiple methodologies with J.B. A special education

teacher stated that she would “work[] off the data submitted by PAC,” and then

described a number of methodologies she would use with J.B., including “natural

environment training,” “things they use in [occupational therapy] and speech

[therapy],” and “[various] reinforcers and motivators.” The principal and the

teachers explained that they did not want to specify ABA methodology in the IEP

because the teachers wanted to use more than one methodology. As a result, J.B.’s

IEP did not specify any particular methodology.

      DOE was not required to specify ABA methodology in J.B.’s IEP. While

we recognized in J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 952 (9th Cir.

2009), that “school districts should specify a teaching methodology for some

students” in their IEPs, we did not provide much guidance beyond stating that

doing so is necessary for some students. The facts of J.L., however, suggest that


                                         8
DOE was not required to specify ABA methodology in J.B.’s IEP. In J.L., “[t]he

District . . . declined to name a particular teaching methodology to be utilized by

all teachers because its experts recommended several effective programs, not just a

single ‘right’ choice.” Id. at 945. After the district court held that the school

district committed a procedural violation of the IDEA in so doing, we reversed. Id.

at 952, 954. As we explained:

      We accord deference to the District’s determination and the ALJ’s
      finding that [the student’s] teachers needed flexibility in teaching
      methodologies because there was not a single methodology that would
      always be effective. We hold that the District did not commit a
      procedural violation of the Individuals with Disabilities Education Act
      by not specifying teaching methodologies in [the student’s]
      individualized educational programs[.]”

Id. at 952. This case is similar. J.B.’s teachers thought it was best to use multiple

teaching methodologies with J.B. They wanted the flexibility to select the

methodology that best fit J.B.’s needs as they arose. Given this precedent and the

deference we owe to J.B.’s teachers who thought it was best to use multiple

teaching methodologies, we hold it was not necessary for J.B.’s IEP to specify that

the ABA methodology would be used. Therefore, DOE did not deny J.B. a FAPE

and did not violate the IDEA.

AFFIRMED.




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