A.k., the Student; and V.I., the Student’s Parent v. Department of Education, State of Hawaii

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A.K., the Student; and V.I., the Student’s
Parent,
Plaintiffs-Appellants,
v.
DEPARTMENT OF EDUCATION, STATE
OF HAWAII,
Defendant-Appellee.
No. 21-17127
No. 1:21–cv–00127–DKW–RT
MEMORANDUM*
Appeal from the United States District Court
District of Hawaii
Derrick Kahala Watson, Chief District Judge, Presiding
Submitted November 15, 2022 **
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge.
Appellant A.K., by and through her mother, V.I., appeals from the district
* This disposition is not appropriate for publication and is not precent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
NOV 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s judgment affirming the decision of an administrative hearings officer
(“Hearings Officer”) that A.K.’s school district did not violate the Individuals with
Disabilities Education Act (“IDEA”). A.K. claims that the Department denied her
a free appropriate public education (“FAPE”) when it, pursuant to an
individualized education program (“IEP”), reduced her weekly feeding therapy
regimen and removed her communication aide. We have jurisdiction under 28
U.S.C. § 1291, and we review the district court’s factual findings for clear error
and its legal conclusions de novo, including whether the school district complied
with the IDEA, Timothy O. v. Paso Robles Unified Sch. Dist., 822 F.3d 1105, 1118
(9th Cir. 2016). Because petitioners fail to meet their burden of proving error
below, we affirm.
1. Because the Department adequately considered the recommendations and
concerns of A.K.’s mother, its contrary decision to decrease her weekly feeding
therapy regime based on the speech language pathologist’s recommendation does
not constitute a denial of a FAPE. See Capistrano Unified Sch. Dist. v. S.W., 21
F.4th 1125, 1134 (9th. Cir. 2021) (“Parents’ participation does not require school
authorities automatically to defer to their concerns.”).
2. Nor did the Department deny A.K. a FAPE when it removed her
communication aide. Based on the “snapshot” rule, review of an IEP
determination is limited to evidence before the IEP team at the time it made the

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determination, Baquerizo v. Garden Grove Unified Sch. Dist., 826 F.3d 1179, 1187
(9th Cir. 2016) (limiting review “based on the information that was reasonably
available to the [school district] at the time” the IEP was created), unless the
additional evidence concerns events occurring after the determination that “provide
significant insight into the child’s condition, and the reasonableness of the school
district’s action, at the earlier date,” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch.
Dist. Off. of Admin. Hearings, 652 F.3d 999, 1004, 1006 (9th Cir. 2011). The
Hearings Officer and the district court properly excluded testimony from one of
A.K.’s registered behavioral technicians related to the communication aide
removal because it was not “reasonably available” to the IEP team and did not
provide any “significant insight” into A.K.’s condition at the time of IEP
determination. Additionally, even if the additional evidence was considered, it
would not have had an impact on the FAPE determination.
AFFIRMED.

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