JANE LEGGETT, in her own right and on behalf of her daughter, K.E., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 13-0084(RBW)
United States District Court, District of Columbia.
January 23, 2014
REGGIE B. WALTON, United States District Judge
Victoria Lynne Healy, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
REGGIE B. WALTON, United States District Judge
Plaintiffs Jane Leggett, in her own right and on behalf of her daughter, K.E., bring claims under the
I. Statutory Background
Under the IDEA, states and territories, including the District of Columbia, that accept federal educational funds must provide a free appropriate public education (“FAPE“) to students with disabilities residing within their borders. See
The IDEA provides that a parent may submit a complaint to an educational agency “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” and receive a hearing on the complaint conducted by an independent hearing officer.
a hearing officer may find that a child did not receive a [FAPE] only if the procedural inadequacies: (i) impeded the child‘s right to a free appropriate public education; (ii) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents’ child; or (iii) caused a deprivation of educational benefits.
II. Factual Background
K.E. is a seventeen-year-old child who has been deemed eligible to receive services under the IDEA as a student with several emotional disorders. A.R. at 9-10. Testing indicated that K.E.‘s verbal abilities are “in the superior range of intelligence,” A.R. at 127; however, K.E. is diagnosed with a Major Depressive Disorder, a Panic Disorder, a Post-Traumatic Stress Disorder, an Identity Problem, a Reading Disorder, and an Attention Deficit Hyperactivity Disorder. A.R. at 9. As a result of these diagnoses, K.E.‘s personal therapist recommends that she be placed in a small, highly-structured therapeutic classroom with a low student to teacher ratio throughout the day as well as given time accommodations on tests and quizzes. Id.
Prior to the 2012-2013 school year, K.E. attended public schools within the District of Columbia Public Schools (“DCPS“) System. A.R. at 6. During the 2011-2012 school year, K.E. attended Wilson Senior High School (“Wilson“) and was enrolled in Advanced Placement (“AP“) English, AP Biology, AP U.S. History, and Honors Pre-Calculus. A.R. at 7. At some point during the 2011-2012 school year, as a result of her various disorders, K.E. “engaged increasingly in self-destructive behaviors,” was absent from approximately seventy-five percent of her classes, and began failing her classes. A.R. at 7.
In January 2012, K.E.‘s mother requested that K.E. be evaluated for special education eligibility.2 A.R. at 8. DCPS evaluated K.E. in the spring of 2012 and determined that her “social and emotional concerns [were] exerting the most signifi
The IEP Team convened again on both June 7 and 14, 2012, to complete K.E.‘s IEP. Id. At the June 7, 2012 IEP meeting (“June 7 meeting“), DCPS presented a nine-page draft IEP to which Ms. Leggett submitted an additional seven pages of suggestions for inclusion into the IEP. A.R. at 228-37. Dr. Peggy Peagler, Wilson‘s Special Education Coordinator, testified at the administrative hearing that “based on the pages [Ms. Leggett] submitted to us we went line for line and incorporated it” into the draft IEP during the June 14, 2012 IEP meeting (“June 14 meeting“). A.R. 937. Because K.E.‘s IEP was not completed during the June 14 meeting, the IEP team agreed to meet again in late August to finish it. A.R. at 11-12, 697, 705, 983. During June and July Ms. Leggett and her attorney made telephone calls and sent emails to DCPS to schedule a meeting to complete K.E.‘s IEP, but DCPS did not respond and the meeting never occurred. A.R. at 11-12.
During the summer of 2012, the plaintiffs applied for admission to one private special education school located within the District of Columbia, but K.E. was not admitted. A.R. at 263. The plaintiffs also applied for K.E.‘s admission to The Grier School (“Grier“), an all-girls residential private school located in central Pennsylvania. A.R. at 10. At Grier, all of the core classes are taught in a general education setting by teachers who are not certified in special education. A.R. at 11. These classes are comprised of, at most, fourteen students per class. Id. Less than one percent of the students enrolled in Grier have IEPs. Id. “Grier does not have an Office of the State Superintendent of Education Certificate of Approval for nonpublic special education schools and programs[] serving students with disabilities funded by the District of Columbia,” id., and is not primarily a school for children with learning or emotional issues, A.R. at 709. On August 6, 2012, after being informed that K.E. would be admitted to Grier, the plaintiff withdrew K.E. from Wilson and notified DCPS, through counsel, that she intended to enroll K.E. at Grier and seek public funding to pay for the costs of K.E.‘s attendance at Grier. A.R. at 11. The plaintiff then filed a due process complaint on August 17, 2012, A.R. at 12, and on August 29, 2012, an unsuccessful “resolution session” was held, A.R. 12.
Classes began at Wilson on August 27, 2012, and K.E.‘s IEP was completed two weeks later on September 11, 2012.3 A.R.
The Due Process Hearing and Decision
The plaintiffs’ administrative complaint alleged that DCPS denied K.E. a FAPE when it did not complete her IEP prior to the beginning of the 2012-2013 school year and by failing to offer K.E. an appropriate school placement. A.R. 3-4. The plaintiffs sought relief in the form of funding in the amount of $56,900 which included: (1) $46,800 for tuition, room, and board at Grier; (2) $2,500 for Grier‘s horseback riding program; (3) $3,800 for the Learning Skills program; and (4) $2,000 for the Student Support Evening Tutor services. A.R. at 348.
The due process hearing was held on October 15 and 17, 2012. A.R. at 4. The hearing officer heard testimony from Ms. Leggett; Dr. Vincent Culotta, who performed K.E.‘s initial evaluation; Michelle Davis, K.E.‘s Learning Skills teacher at Grier; Caren Crago, the Director of Counseling at Grier; Jamie Josephson, K.E.‘s social studies teacher at Wilson; and Dr. Peagler. A.R. at 25. The District argued during the administrative hearing that the two-week delay in completing K.E.‘s IEP was a de minimus procedural violation, and accordingly, did not amount to a denial of K.E.‘s right to a FAPE. A.R. at 15.
On October 27, 2012, the hearing officer issued his decision. A.R. at 1. The Hearing Officer‘s Decision (“HOD“) rejected the District‘s argument to the contrary, finding that “DCPS’ failure to develop an IEP for [K.E.] prior to the start of the 2012-2013 school year resulted in [a] loss of [an] educational opportunity to [K.E.] and was a clear denial of FAPE.” A.R. at 19. However, the HOD ultimately concluded that the plaintiffs did not meet their “burden to demonstrate that [K.E.‘s] full-time residential placement at [Grier] is necessary for educational purposes.” A.R. at 24. Therefore, the hearing officer “den[ied K.E.‘s mother‘s] request that DCPS be ordered to reimburse her for the costs of [K.E.‘s] enrollment at [Grier] or to fund [K.E.‘s] continued enrollment at that school for the remainder of the 2012-2013 school year.”4 Id.
On January 18, 2013, the plaintiffs sought review of the hearing officer‘s decision by this Court, see Compl. ¶¶ 65-71, and the parties have now both moved for summary judgment.
III. Standard of Review
Summary judgment is proper when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A district court reviewing the findings and decision of an administrative hearing officer in an IDEA case “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”
Nevertheless, “the provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal citations omitted). Rather, the party challenging a hearing officer‘s determination must “at least take on the burden of persuading the court that the hearing officer was wrong, and ... a court upsetting the officer‘s decision must at least explain its basis for doing so.” Reid, 401 F.3d at 521 (quoting Kerkam I, 862 F.2d at 887). Moreover, “‘[f]actual findings from the administrative proceeding are to be considered prima facie correct.‘” Roark ex rel. Roark v. District of Columbia, 460 F.Supp.2d 32, 38 (D.D.C.2006) (quoting S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir.2003)). Finally, a court must also “defer to the [hearing officer‘s] factual findings unless it can point to contrary nontestimonial extrinsic evidence on the record.” Savoy v. District of Columbia, 844 F.Supp.2d 23, 30 (D.D.C.2012) (quoting S.H., 336 F.3d at 270).
IV. Legal Analysis
The plaintiffs argue that the hearing officer correctly determined that K.E. was denied a FAPE but that his determination that Grier was not an appropriate placement was erroneous and should be reversed. Pls.’ Mem. at 10-20. As noted above, the hearing officer made two conclusions of law. First, the hearing officer found that DCPS’ failure to develop an IEP for K.E. before the first day of school constituted a denial of FAPE. A.R. at 17. Second, the hearing officer found that although K.E. was denied a FAPE, the plaintiffs are not entitled to reimbursement for the costs associated with K.E.‘s attendance at Grier because her residential placement at Grier was not “necessary for educational purposes.” A.R. at 17-18.
Under the IDEA, parents who unilaterally place their child at a private school without the consent of school officials do so at their own financial risk. Florence Cnty. Sch. Dist. 4 v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284, (1993) (citation omitted). Parents in such situations may be reimbursed only if “the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate,”
A. The delay in completing K.E.‘s IEP
The first issue the Court must address is whether K.E. was denied a FAPE by DCPS’ failure to provide K.E. with a completed IEP prior to the start of the 2012-2013 school year. The hearing officer found that this failure “resulted in a loss of [an] educational opportunity to [K.E.] and was a clear denial of [a] FAPE.” A.R. 17. The District argues that this determination was erroneous, because the delay encompassed only eleven school days and therefore constituted a de minimus procedural violation that did not deny K.E. the right to a FAPE. The Court agrees with the hearing officer that K.E. was denied a FAPE due to DCPS’ failure to complete the IEP by August 27, 2012.
Although a procedural violation may rise to the level of a denial of a FAPE, this Circuit, along with several others, has held that “an IDEA claim is viable only if those procedural violations affected the student‘s substantive rights.” Lesesne v. District of Columbia, 447 F.3d 828, 834 (D.C.Cir.2006) (denying relief under the IDEA because the plaintiff “made no effort to demonstrate ... that [her son‘s] education was affected by any procedural violations DCPS might have committed“); see e.g., Adam J. ex rel. Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811-12 (5th Cir.2003) (“procedural defects alone do not constitute a violation of the right to a FAPE unless they result in the loss of an educational opportunity“); Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 765 (6th Cir.2001) (“a procedural violation of the IDEA is not a per se denial of a FAPE; rather, a school district‘s failure to comply with the procedural requirements of the Act will constitute a denial of a FAPE only if such violation causes substantive harm to the child or his parents“).
Under the IDEA‘s implementing regulations, substantive harm occurs if the preponderance of the evidence establishes that the procedural inadequacies: “(i) [i]mpeded the child‘s right to a FAPE; (ii) significantly impeded the parent‘s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent‘s child; or (iii) caused a deprivation of the educational benefit.”
The Third Circuit recently considered the ramifications of the failure to complete an IEP prior to the beginning of the school year in C.H. v. Cape Henlopen School District, 606 F.3d 59 (3d Cir.2010). There, like in this case, Cape Henlopen procedurally violated the IDEA by failing to com
Much like C.H.‘s parents, the plaintiffs argue that because “K.E.‘s IEP remained incomplete at the start of the 2012-2013 school year ... [the District] was to blame for this violation.” Pls.’ Reply at 3-4. As support for K.E.‘s mother‘s decision to withdraw K.E. from DCPS enrollment three weeks prior to the IEP due date, the plaintiffs rely on G.G. ex rel. Gersten v. District of Columbia, 924 F.Supp.2d 273 (D.D.C.2013), in which another member of this Court held that the “[f]ailure to develop an IEP is essentially a denial of a FAPE.” G.G., 924 F.Supp.2d at 280. However, in the plaintiffs’ efforts to inoculate the decision to unilaterally withdraw K.E. from Wilson, they fail to acknowledge that central to the Court‘s decision in G.G. was DCPS’ initial failure to timely evaluate and make any eligibility determination regarding G.G., making it impossible for the IEP to be completed by the required date. The Court in G.G. also found compelling the fact that at no point during the proceedings did “the District ... contend that an IEP was even in the process of being completed, by the ... deadline or beyond.” Id. Thus, because DCPS had not taken the steps necessary to develop an IEP within the time period required by the IDEA, the Court in G.G. found that the child was “effectively barr[ed] ... from receiving a timely IEP,” resulting in a procedural violation amounting to substantive harm. Id.
Here, there is no dispute that, as was the case in Cape Henlopen, the District committed a procedural violation by failing to have K.E.‘s IEP completed by the first day of the 2012-2013 school year. This was a violation of the plain mandate of the IDEA that a District should have an IEP in place “[a]t the beginning of each school year.”
Despite Ms. Leggett‘s premature removal of K.E. from Wilson, the Court cannot overlook DCPS’ culpability. Courts in this Circuit are willing to find a denial of a FAPE when DCPS has abrogated its responsibility and, as a result, the student‘s IEP was not completed prior to the beginning of the school year. See, e.g., Maynard v. District of Columbia, 701 F.Supp.2d 116, 123-24 (D.D.C.2010) (finding that it was a denial of a FAPE where, as a result of DCPS’ failure to convene any IEP team meeting prior to the first day of school, the student‘s IEP was not developed by that date) (emphasis added); Alfono v. District of Columbia, 422 F.Supp.2d 1, 5-8 (D.D.C.2006) (finding that DCPS’ failure to incorporate the findings of various evaluations in the student‘s IEP prior to the first day of school amounted to a denial of a FAPE until two months later when the student‘s “goals and objectives or a means for measuring her progress” were incorporated into her IEP) (emphasis added). The Court therefore rejects the defendant‘s argument that DCPS’ failure to complete K.E.‘s IEP prior to September 11, 2012, was merely a procedural violation. Unable to find any reason why Ms. Leggett‘s requests to reconvene the IEP team went unanswered by DCPS and DCPS’ failure to have the IEP in place by August 27, 2012, cause the Court to find that K.E. was denied a FAPE.8
B. The Hearing Officer‘s Reimbursement Denial
Despite DCPS’ failure to timely provide a FAPE to K.E. for the 2012-2013 school year, Ms. Leggett is only entitled to reimbursement if K.E.‘s placement at Grier was appropriate. See Holland, 71 F.3d at 420 n. 3 (noting that this circuit has ordered reimbursement “where the public agency violated [the IDEA] and the parents made an appropriate placement“). Because the Court finds that the
The hearing officer held that “to determine whether a residential placement is appropriate, a court must analyze ‘whether full-time placement may be considered necessary for educational purposes[.]‘” A.R. at 21 (quoting McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C.Cir.1985)) (emphasis added). Applying the logic of McKenzie, 771 F.2d at 1534, he reasoned that “the test is not whether the Student receives educational benefit, but whether the full-time residential placement may be considered necessary for educational purposes.” A.R. at 23. The hearing officer then made the following observations:
In the present case, [Ms. Leggett] has not met her burden of proof to establish that [K.E.‘s] ... residential placement at [Grier] is necessary for educational purposes. [Ms. Leggett] has adduced no evidence that [K.E.] requires placement at [Grier], or at any residential facility, for her medical, social, or emotional problems. To the contrary, [Ms. Leggett‘s] expert ... recommended in his February 2012 neuropsychological evaluation report that [K.E.] receive consistent psychiatric services and regular psychotherapy on an “outpatient” basis .... Moreover, [Grier] is not a residential treatment center or a therapeutic boarding school. Very few of its students have IEPs. Even the Learning Skills program at [Grier] is an elective class, designed for any student still developing organizational or study skills, or in need of individual instruction in specific subjects.
Neither does the evidence establish that [K.E.‘s] residential placement at [Grier] is necessary for educational purposes. Former Social Studies Teacher [Jamie Josephson], who, of all the witnesses except for [Ms. Leggett], knew [K.E.] best and was most familiar with her educational issues and needs, opined that [K.E.] needed 1:1 support in her classes, which could be provided by a special education co-teacher in an inclusion classroom setting. [Ms. Leggett] also acknowledged in her testimony that an inclusion setting in all core classes might be appropriate for [K.E.], but contended that such an inclusion setting was not available in all classes at [Wilson]. At the September 11, 2012 IEP meeting, [Ms. Leggett‘s] co-counsel stated [Ms. Leggett‘s] “standing belief” that [K.E.] needed specialized instruction in inclusion classes throughout the school day. In his neuropsychological evaluation report, [Dr. Culotta] recommended that [K.E.] be placed in a small, highly structured, therapeutic classroom with a low student-to teacher ratio throughout her day.... It is clear from his report, however, that [Dr. Culotta] envisioned that [K.E.] would receive these services and accommodations at a nonresidential school.
A.R. at 22-23. Based on this evidence the hearing officer concluded that Ms. Leggett had “not met her burden to demonstrate that [K.E‘s] full-time residential placement at [Grier] is necessary for educational purposes.” Id. at 24. He therefore concluded that Ms. Leggett was not entitled “to reimburse[ment] ... for the costs of [K.E.‘s] enrollment at [Grier] or to fund [K.E.‘s] continued enrollment at [Grier] or to fund [K.E.‘s] continued enrollment at that school for the remainder of the 2012-2013 school year.” Id.
Citing Wirta v. Dist. of Columbia, 859 F.Supp. 1 (D.D.C.1994), counsel for the plaintiffs argue that in the District of Columbia all Ms. Leggett is required to show is that K.E. was placed in a school that is “reasonably calculated to enable the child to receive educational benefits.” Pls.’ Opp‘n at 6. By the plaintiffs’ assessment, the hearing officer needed only to determine if Grier provided an educational benefit to K.E. and that it was error for the hearing officer to consider whether residential placement was necessary. Id. This argument is tantamount to saying that Ms. Leggett has carte blanche right to select any private school in the country so long as K.E. received some educational benefit from the placement. This argument defies logic and attempts to read the word reasonable out of case law upon which the plaintiffs rely.9
Furthermore, a finding that the selection of a school by a parent was unreasonable is not solely dependent on a determination that the private placement is an appropriate placement, but rather is informed based on a factual analysis of all of the events that lead to the selection. See Maynard v. District of Columbia, 701 F.Supp.2d 116, 124-25 (D.D.C.2010) (finding that even though the child was denied a FAPE and the private placement was appropriate, reimbursement for unilateral private placement was not appropriate when the parent acted unreasonably). “Courts fashioning discretionary equitable relief under the IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement
Aside from the unreasonableness of Ms. Leggett‘s decision to remove K.E. from Wilson three weeks before the start of the school year, at a time when the District had not yet failed in its obligations to K.E. under the IDEA, the Court also finds Ms. Leggett‘s decision to place K.E. at a school far from the District of Columbia with an annual cost of $56,900, and which, acknowledged by Ms. Leggett‘s own testimony, is “not primarily a school for kids with learning or emotional issues” was unreasonable. A.R. at 709.
Compounding what, in this Court‘s opinion, is already an extremely unreasonable set of circumstances regarding the timing of K.E.‘s withdrawal from Wilson and placement at Grier, is the fact that the plaintiffs never challenged the September 2012 IEP. Despite making a number of references to Ms. Leggett‘s dissatisfaction with the 2012 IEP, including an assertion, raised for the first time in their opposition brief, that the IEP is procedurally flawed and substantively inappropriate for K.E., at no point that the Court has been made aware, was an administrative complaint filed to address the merits of the IEP.10 Instead, after the IEP was completed on September 11, 2012, K.E. remained enrolled at Grier. And as of the date of this Court‘s decision, K.E. has now been enrolled at Grier for approximately sixteen months without an administrative complaint having been filed challenging the September 11, 2012 IEP.
While the Court is sympathetic to Ms. Leggett‘s efforts to obtain the best possible education for K.E., giving all due consideration to the hearing officer‘s factual findings, and, after its own review of the administrative record, the Court finds that the plaintiffs have failed to show by a preponderance of the evidence that the hearing officer incorrectly determined that Grier is not an appropriate placement for K.E. Consequently, the plaintiffs are not entitled to reimbursement for the costs of K.E.‘s placement at Grier.
V. Conclusion
For the foregoing reasons, the Court concludes that the District of Columbia‘s failure to adopt an IEP for K.E. before the first day of DCPS’ 2012-2013 school year violated K.E.‘s right to a FAPE as required by the IDEA. The Court further concludes that the hearing officer correctly determined that Grier was not an appropriate placement for K.E. Thus, the Court finds that the plaintiffs are not entitled to reimbursement for K.E.‘s unilateral placement at Grier. See
SO ORDERED this 23rd day of January, 2014.11
REGGIE B. WALTON
United States District Judge