KEITH H.S.

PECK
6825
3360 Kamaaina Place
Honolulu, HI 96813
Tel.No. (808) 384-7325
Fax No. (808) 595-7146
LawCenterHawaii@aol.com
Attorney for Petitioners
OFFICE OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
STATE OF HAWAII
In the Matter of:
Xxxxxxxx Xxxxxxxxx by and through
her Mother, COTY LUKE,

DOE-SY1516-______
(I.D.E.A. Impartial Hearing)
COMPLAINT; CERTIFICATE OF
SERVICE

Petitioners,
vs.
DEPARTMENT OF EDUCATION,
STATE OF HAWAII, and KATHRYN
MATAYOSHI, superintendent of the
Hawaii Public Schools,

Served Via Fax: (808) 984-8008

Respondents.

COMPLAINT
Petitioners Coty Luke, (Mother), individually and on behalf
of her minor child, Xxxxxx Xxxxxxx, (collectively Petitioners) by and
through their attorney, hereby allege and aver as follows:
I.

JURISDICTION AND VENUE

1. This Court has jurisdiction in this action pursuant to 20 U.S.C.

1415(i)(2) and H.A.R. 8-60-70(a).
2. This action arose in the District of Hawaii, and venue is proper in
Hawaii.
II.

PARTIES
3. Petitioners and Xxxxxx Xxxxxxxx and Coty Luke are residents in the
City and County of Maui, State of Hawaii. Coty Luke, is the legal
guardian of Xxxxxxx Xxxxxxx, (Student), born on 10/29/2010.
Petitioners reside within the geographical area which designates
Waihee Elementary as Students home school. Petitioners reside at 80
Kunihi Lane, #412 Kahului, HI 96732. Student is qualified to receive
special education and related services under the Individuals with
Disabilities Education Act (IDEA).
4. Respondent is the State of Hawaii Department of Education (DOE)
a political subdivision of the State of Hawaii which implements the
States Special Education Program pursuant to IDEA and Kathryn
Matayoshi, who is sued in her official capacity as the superintendent
of the Hawaii Public Schools or DOE. The DOE is a political

subdivision of the State of Hawaii, which implements the States

special education programs pursuant to the IDEA.
III.

DESCRIPTION OF CONCERNS
1. The IEP developed for Student on or about August 17, 2015 was a
violation of FAPE for the following reasons:
a. Student has been battered and assaulted on numerous occasions
in the classroom. Her processing unit of her cochlear implant
has been damaged and her lost hearing in one ear.
b. Student is left in a special education only program when the
Head Start program is not in session. This is not the least
restrictive placement.
c. Students program is not being implemented regarding the
methodology determined appropriate by the IEP team; audio
verbal methods.
d. Students program is not being implemented regarding teacher
of the deaf consultation. Additionally, this consultation
provided by the IEP is insufficient to meet Students needs.
e. The service Hearing Service in unspecific and undefined and
parent cannot enforce and/ or monitor this service without

greater definition in the IEP. The Hearing Service is insufficient

to address Students needs.
f. The Objectives provided to Student are insufficient to address
her needs for listening and communication development.
g. The services in the IEP to address Students communication
needs are not sufficient and/ or appropriate to address the
parent-chosen course for Students communication modality,
which is oral communication.
h. Student has been discriminated against where she is unable to
and/or prevented from attending the after school program at her
school where she is required to have an aid which is
unavailable. This is also a violation of FAPE where she needs
this program to address her needs.
i. Team failed to review and/ or discuss information parent
brought to IEP meeting on needed objectives and the techniques
that can be employed to address Students needs.
j. Principal denied Student appropriate level of adult oversight
and responded to parents concerns inappropriately by stating
that the school was allocated only 5 aids.

k. The classroom and program modifications are inappropriate

where lip reading, visual aids and pictures will be employed as
in the following listed accommodations for Student: (b), (d),
(e). Student is to focus on auditory verbal supports not visual or
gestural or picture supports. However, teaching methods that
utilize these modalities (such as tell a story based upon the
sequence of pictures is appropriate).
l. Student is impacted when school fails to substitute an aid for on
that is absent or otherwise unavailable.
m. Principal agreed that the services Student needs was
unavailable.
n. The IEP meeting did not have sufficient persons knowledgeable
about the communication options to address students program
needs for oral-based communication therapy.
o. The term amplification system is unspecific and not descriptive
of the devise the IEP team agreed-upon; FM system.
p. The Extended School Year (ESY) discussion was deferred
improperly. Although the discussion was deferred, the school
improperly determined Student ineligible for ESY services.

q. The school had the obligation to seek information (both prior to

the IEP meeting and at the IEP meeting from parents and other
sources) in order to discuss and consider Students eligibility.
The school asserted that it would gather information during the
short fall break in order to revisit this topic. The short fall break
would only provide certain information. There was other
information that the school could have sought to discuss and
consider eligibility for ESY during the different length
intersessions.
r. The school stated that it was not even considering the summer
intersession. Parents input was not elicited and was limited by
these actions and inactions of the school. These were procedural
flaws that denied student a FAPE.
s. Additionally, (for substantive reasons) Student should have
been made eligible for ESY for services based upon existing
information.
V.

STATEMENT ON MEDIATION and RESOLUTION

1.

Petitioners REJECTS mediation and a resolution meeting in

this matter.
V.

PROPROSED RESOLUTIONS and PRAYER FOR RELIEF

WHEREFORE, Petitioners pray that this Court find and order as

follows:
1. Order Respondent to fund and/or reimburse Students private
educational and/or related services in relation to the needs
resulting from the denial of FAPE, as alleged above (including
financing charges and lost opportunity costs);
2. Order the IEP team to alter the offered program in accordance
with some or all or Petitioners stated concerns;
3. Find that the DOE denied Student a FAPE under section 504
and/or the IDEA;
4. Find that Students private services are appropriate for purposes of
reimbursement and as Students current educational placement
for stay put purposes;
5. Order direct payment for any sum incurred, yet not paid by
parent, for educational and related expenses provided to Student
that were beneficial and appropriate for Student from the day of
the violations found, or a date thereafter proven as appropriate in
hearing, including, but not limited to mental health services,
medications, transportation, uniforms, tutoring tuition, mental

health therapy and other needs resulting from the misdeeds of the
DOE herein alleged;
6. Order a compensatory educational remedy as appropriate;
7. Award damages in a sum that will compensate Student and
family for losses not compensable through the provision of
educational and related services, in an amount to be proven at
trial;
8. Find that Petitioners are the prevailing party;
9. Order the DOE to pay attorneys fees and costs related to
Petitioner instant action; and
10.Order such other relief that is appropriate and justified in equity
and/or in law, under the circumstances.
DATED: Honolulu, Hawaii, September 14, 2015.
_________________________
KEITH H.S. PECK
Attorney for Petitioners

OFFICE OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
STATE OF HAWAII
Xxxxxxx Xxxxxxxxx by and through her
Mother, COTY LUKE,

DOE-SY1516-_____
(I.D.E.A. Impartial Hearing)

Petitioners,
vs.

CERTIFICATE OF SERVICE

DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
Respondents.

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was duly
served upon the Department of Education, State of Hawaii, via facsimile on
September 14, 2015.

__________________________
KEITH H.S. PECK
Attorney for Petitioners