MEMORANDUM OPINION
Plaintiff Evelyn Savoy filed suit as the parent and next friend of her son, T.W., seeking injunctive and declaratory relief against the District of Columbia under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiff is appealing the Hearing Officer Determination which found that placing T.W. at Ballou Senior High School did not deny T.W. a free appropriate public education. Presently before the Court are the parties’ cross-motions for summary judgment. PL’s Mot. for Summ. J., ECP No. [11]; Def.’s Cross-Mot. for Summ. J., ECF No. [13].
I. EVIDENTIARY ISSUES
Before addressing the merits of the parties’ motions, the Court briefly turns to an issue with the Plaintiffs pleadings. In the Scheduling and Procedures Order, the Court emphasized that the parties were expected to “comply fully with Local Civil Rule LCvR 7(h)” in submitting statements of material facts not in dispute in support of their respective motions. 3/9/11 Order, ECF No. [9], at 1 (emphasis in original). The Court explained that
A party responding to a statement of material facts must respond to each paragraph with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied. The responding party should include any information relevant to its response in that paragraph. If the responding party has additional facts that are not addressed in the corresponding paragraphs, the responding party should include these at the end of its responsive statement of facts. At all points, parties must furnish precise citations to the portions of the record on which they rely.
Id. at 1-2.
Both parties submitted statements of material facts in support of their respec
II. BACKGROUND
A. Statutory Framework
The IDEA was enacted to “ensure 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 education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A).
B. Factual Background
T.W. is now a sixteen year old special education student. See Administrative Record (“A.R.”) 20. T.W. attended the Children’s Guild of Prince George’s Coun
1. Placement at Ballou
On January 5, 2010, during T.W.’s eighth grade year, his MDT met to revise his IEP. Def.’s Stmt. ¶ 4. The IEP classified T.W. as learning disabled, and outlined goals for T.W. in math, reading, written expression, and emotional, social and behavioral development. Id. at ¶¶ 5-6. The IEP provided that T.W. should receive 28.5 hours of specialized instruction and 1.5 hours of behavioral support services each week, both outside the general education setting. Id. at ¶ 7. In describing the “least restrictive environment” where T.W. should be placed, the IEP stated
General Education Rejected possible school failure insufficient supports available General Education w Sped Component Rejected services required to support IEP are not available Separate Day school Accepted—behavior modification program, small structured class size, on staff therapists provide support to enable [T.W.] to progress academically, socially and behaviorally.
A.R. 45 (all errors in original).
At the conclusion of the 2009-2010 school year, T.W. aged out of the Children’s Guild. Def.’s Stmt. ¶ 10. T.W.’s MDT met in July 2010 to discuss T.W.’s placement for the 2010-2011 school year. Id. Plaintiff proposed placing T.W. at the High Road Academy in Lanham, Maryland. Id. at ¶ 13. The District proposed, and the MDT ultimately decided, to place T.W. at Ballou Senior High School, a public school in the District of Columbia. Id. at ¶ 11.
Dissatisfied with the results of the IEP review meeting, Plaintiff filed a Due Process Complaint on August 5, 2010. Def.’s Stmt. ¶ 14; A.R. 79-84 (Due Process Complaint). The Due Process Complaint alleged DCPS failed to provide T.W. with a free appropriate public education “by failing to determine an appropriate educational placement/location of services.” A.R. 81. Specifically, Plaintiff alleged that placing T.W. at Ballou was inadequate because it was not a “separate, fulltime, special education program,” and that Ballou “cannot implement the student’s IEP and cannot provide him the services to which he is entitled,” because “Ballou is an inclusion program and has yet to be fully developed.” Id. Plaintiff requested, among other things, that (1) T.W. be placed at High Road Academy; (2) T.W. undergo a new comprehensive psychological evaluation; (3) a new MDT meeting be held to update T.W.’s IEP; and (4) all future MDT meetings be scheduled through Plaintiffs counsel. Id. at 82.
2. Due Process Hearing
The Due Process Hearing commenced on October 14, 2010 in front of Hearing Officer Frances M. Raskin. A.R. 134 (Transcript of Due Process Hearing). Corrine Anyanwu, the head of administration at High Road Academy, testified on behalf of T.W., asserting that High Road Academy would be able to implement T.W.’s IEP. Id. at 151-162. Plaintiff testified, stating that T.W. had been suspended twice while attending Ballou, for one day each time. Id. at 178:9-18. Plaintiff indicated that when T.W. initially enrolled at Ballou, she routinely received calls from T.W.’s teachers regarding his behavior,
Dori Cook, T.W.’s educational advocate also testified. See id. at 191. Plaintiffs counsel asked Ms. Cook about the July 2010 meeting where T.W.’s MDT decided to place T.W. at Ballou instead of High Road Academy. Ms. Cook mentioned that T.W.’s social worker at the Children’s Guild, Ms. Shaun Feltom, purportedly wanted to modify the behavioral program implemented for T.W. Id. at 200:20-201:16. The District objected to this testimony, and after clarifying that Ms. Cook was discussing what Ms. Feltom had purportedly stated at a previous MDT meeting, not the July 2010 meeting, the Hearing officer limited Ms. Cook’s testimony to what Ms. Cook stated at the July meeting, and not what the social worker orally recommended on some earlier occasion. Id. at 202:16-205:5. It was clarified at this point in the Hearing record by Plaintiffs counsel that Plaintiff was not challenging the appropriateness of T.W.’s IEP. Id. at 203:7-14. Ms. Cook indicated she observed T.W. in class at Ballou on two occasions. Id. at 212:3-9. On the first occasion, Ms. Cook observed T.W. with the first iteration of his schedule, observing his math and science classes. Id. at 213:1-4. Ms. Cook observed T.W. a second time in a new math class. Id. at 219:4-9. During the second observation, Ms. Cook noted that two additional adults in the math classroom, whom she inferred were support staff, failed to provide any “academic or instructional support” to T.W. Id. at 220:12-19. T.W. apparently sat by himself and did not do any work, routinely putting his head down on his desk. Id. at 220:19-221:22. From this observation, Ms. Cook concluded T.W.’s behavior intervention plan was not being properly implemented and that he was being educated in “inclusion” classes with non-disabled students rather than a special education classes. Id. at 221:16-22, 225:11-227:12. Under cross-examination, Ms. Cook admitted that she concluded that T.W. was in inclusion classes because she did not see a “special educator” in the class, but knew nothing about the instructors or the actual students in the class. Id. at 225:11-227:12. Ms. Cook also concluded that the adults in T.W.’s class were “support staff’ because of a conversation she overheard between the teacher and one of the adults, but did not ask anyone to confirm her suspicions. Id. at 228-29.
T.W. testified and explained that his schedule changed several times while attending Ballou. Initially, T.W. had math, art, English, and history or reading classes. Id. at 236-39. Each class had approximately 11 to 17 students. Id. T.W. indicated he did not understand some of the content, and was often pulled out of class by his teachers purportedly for being disruptive. Id. As part of his second schedule, T.W. attended two math classes as well as environmental science and a literacy class. A.R. 118 (T.W. Student Timetable). Each class had approximately 8-10 students, with two teachers in each class. Id. at 240-42. T.W. stated he “was doing perfectly” in his first math class, but had behavioral issues in his other classes. Id. T.W.’s final schedule, implemented in October 2010, left T.W. in his first period math class, but moved him to a single classroom for his three remaining classes. Id. at 244:2-245:. T.W. indicated he still had some behavioral issues, and he felt as if he only “learned anything” in his fourth period class. Id. at 246:2-4.
The District called only one witness at the Due Process Hearing, Shamele Straughter, the special education coordina
3. Hearing Officer Determination
The Hearing Officer issued her determination on October 24, 2010. A.R. 4 (Hearing Officer Determination (“HOD”)). The Hearing Officer made a number of factual findings regarding T.W.’s abilities, limitations, behavior, and environment at Ballou, none of which are disputed by the parties in this case. See id. at 5-12. The Hearing Officer found that all of the witnesses were credible, except for Ms. Cook, whom the Hearing Officer found was only partially credible. Id. at 12. Ultimately, the Hearing Officer found Plaintiff failed to show T.W. was denied a free appropriate public education because (in relevant part):
(1) Although T.W. receives only 27.6 hours of specialized instruction instead of 28.5, and he interacts more with his nondisabled peers when entering and leaving the school building, “[t]his is not a material change from what the Student’s IEP requires.”
(2) Plaintiff failed to prove T.W. requires a separate day school in order to make academic progress. The District is “essentially providing the Student the specialized and behavioral support required by his IEP” in an out-of-general education setting; and
(3) “[The District] is required only to make available a ‘basic floor of opportunity’ that is ‘reasonably calculated’ to enable the Student to receive ‘educational benefit.’ [Plaintiff] has failed to prove that the Student is not receiving educational benefit at [Ballou].”
Id. at 15. Plaintiff filed suit in this Court challenging the HOD on January 21, 2011.
III. LEGAL STANDARD
Under the IDEA, a “party aggrieved by the findings and decision” of
The party challenging the HOD bears the burden of proof and must “ ‘at least take on the burden of persuading the court that the hearing officer was wrong.’ ” Reid ex rel. Reid v. District of Columbia,
IV. DISCUSSION
A. Characterization of Plaintiffs Claim
Plaintiff and the Hearing Officer referred to Plaintiffs claim as alleging T.W. was denied a free appropriate public education because his placement at Ballou amounted to a “change in placement.” Under the IDEA, when the school district changes a student’s educational placement, the parents are entitled to, among other things, an impartial due process hearing to challenge the school district’s decision. See § 1415(f)(1)(A). In the interim, the student must remain in the “then-current educational placement.” § 1415(j). Simply changing the location where the student receives services does not amount to a change in educational placement. As the Hearing Officer explained, several factors are relevant in determining whether a change in location amounts to a change in
By contrast, Defendant refers to Plaintiffs claim as a “failure-to-implement” claim. A material failure to implement a student’s IEP constitutes a denial of a free appropriate public education. Banks ex rel. D.B. v. District of Columbia,
In the context of the criteria used to evaluate IDEA claims, it is clear that Plaintiffs Complaint asserts a “failure-to-implement” rather than a “change in educational placement” claim. The common feature of the criteria used to determine if a change in placement has occurred is that they require comparison of the student’s previous and current (or proposed) placements. In this case, the relevant question is not whether Ballou provides equivalent services to Children’s Guild; T.W. aged out of the Children’s Guild and could not remain there. Rather, the pertinent question is whether Ballou is adequately implementing T.W.’s IEP. See A.R. 81 (Due Process Complaint) (“[Ballou] cannot implement the student’s IEP and cannot provide him the services to which he is entitled.”). Plaintiffs allegations that Ballou failed to provide the number of hours and types of services required by T.W.’s IEP are properly characterized as a “failure-to-implement” claim. N.D. ex rel. parents acting as guardians ad litem v. Hawaii Dep’t of Educ.,
B. Merits of Plaintiff's Complaint
Although Plaintiffs specific arguments are often vague and unclear, Plaintiff alleges two general flaws in the Hearing Officer Determination: (1) the Hearing Officer erred in finding that the placement of T.W. at Ballou did not deny T.W. a free appropriate public education; and (2) the Hearing Officer erred in failing to determine whether the failure of T.W.’s social worker, Ms. Feltom from the Children’s Guild, to attend the MDT meeting in July 2010 denied T.W. a free appropriate public education. Notably, Plaintiff does not challenge the sufficiency of the findings of fact and conclusions of law provided in the Hearing Officer Determination. Cf. S.B. v. District of Columbia,
1. T.W.’s Placement at Ballou did not Deny T.W. a Free Appropriate Public Education
Plaintiff initially argues that the Hearing Officer erred in concluding that placing T.W. at Ballou did not deny T.W. a free appropriate public education. Specifically, Plaintiff alleges Ballou failed to implement material portions of T.W.’s IEP because (1) the District failed to consider placing T.W. in a private school; (2) Ballou is not a separate day school; (3) T.W. receives only 27.6 hours of instruction per week instead of the 30 hours required by his IEP; and (4) T.W. has had behavioral issues since enrolling at Ballou. None of these arguments are sufficient to warrant reversal of the Hearing Officer Determination.
a. The District was not required to consider private placements.
First, Plaintiff argues that the District erred in failing to consider Plaintiffs proposal to place T.W. at the High Road Academy, a private school. Pl.’s Mot. at 12-13. However, as Plaintiff notes in the same paragraph, the District need not consider private placement where an appropriate public placement is available. Id. at 13 (quoting Jenkins v. Squillacote,
b. Ballou fully implements the services required by T.W.’s IEP.
Second, Plaintiff argues that Ballou fails to implement substantial portions of T.W.’s IEP because Ballou is not a “separate day school.” In support of this argument, Plaintiff vaguely alleges that Ballou cannot provide the “level of services, as they related to the type and duration,” and that these services “could only be carried out in [sic] separate day school facility.” Pl.’s Mot. at 10; PL’s Reply at 6.
The IEP specifies that T.W. should be placed in an educational environment that includes a “behavior modification pro
Plaintiff never identifies what services required by T.W.’s IEP are not provided by Ballou and can only be provided by a separate day school. Plaintiff never explains why the behavioral reward system explained by Ms. Straughter is inadequate. Even if the behavioral modification system in place at Ballou differs from that used at Children’s Guild, that difference alone would not amount to a failure to implement T.W.’s IEP because the IEP itself does not specify what type of behavior modification system must be used, or how it should be implemented. Van Duyn,
The IEP explicitly requires a separate day school, because at the time it was drafted, the “services required to support IEP” were not available in a general education environment. A.R. 45. The fact that Ballou is not technically classified a separate day school is not a substantial departure from T.W.’s IEP when all of the enumerated services and the required class structure are provided. Based on the record before the Hearing Officer and this Court, Plaintiff fails to show by a preponderance of the evidence that Ballou fails to provide the “level of services” required by T.W.’s IEP.
c. The shorter length of T.W.’s classes at Ballou is not a material failure to implement T.W.’s IEP.
Third, Plaintiff contends that Ballou fails to implement a significant portion of T.W.’s IEP because T.W. receives only 27.6 hours of instruction instead of the 28.5 hours of specialized instruction and 1.5 hours of behavioral support services required by the IEP. A.R. 45(IEP). As Defendant points out, Plaintiffs calculation of the relevant hours is partially incorrect.
In some cases, the failure to provide the requisite number of hours of instruction or services provided in the student’s IEP has been found to be a material failure to implement. For example, in Sumter County School District 17 v. Heffernan ex rel. T.H.,
The minimal difference in hours provided by Ballou and required by T.W.’s IEP—less than one hour per week— makes this case more akin to Catalan than Sumter or Van Duyn. In both Sumter and Van Duyn, the student received only half of the hours dictated in the student’s IEP. Here, T.W. receives 97% of the hours required by his IEP. Quantitatively, a 3%, or ten minute per day deviation is not a material to T.W.’s IEP. Qualitatively speaking, Plaintiff failed to provide any evidence or testimony demonstrating that these ten minutes per day of instruction was important to achieving the goals set out in T.W.’s IEP. At no point during the Due Process hearing did Plaintiff even attempt to argue that the missing minutes deprived T.W. of any educational benefit, much less all educational benefit. Moreover, as explained above, T.W. receives all of the services required by his IEP within the hours of instruction provided by Ballou. With no allegation that the shorter class schedule deprives T.W. of an educational benefit, and in light of the fact he receives all of the services required by the
d. T.W.’s behavioral issues do not show that Ballou failed to implement T.W.’s IEP.
Plaintiffs final argument regarding the failure to implement claim is that T.W.’s behavioral issues at Ballou demonstrate his IEP was not implemented properly. Plaintiff cites two pieces of evidence in support of this argument: T.W.’s suspensions from school and Ms. Cook’s observations of T.W. Initially, T.W. had behavioral issues, including the phone calls from his teachers which appear to have significantly declined since T.W. was moved into the ED class. See A.R. 180:6-10 (E. Savoy). Second, most of Ms. Cook’s observations are irrelevant since T.W. is no longer in the classes in which Ms. Cook observed him. The only relevant observation of T.W., Ms. Cook’s second observation performed in October 2010, involved the unusual circumstance of having several Teach for America volunteers observing the class as well. A.R. 266:2-267:7 (S. Straughter). Rather than speak to T.W.’s teacher regarding the other adults in the room, Ms. Cook simply speculated that they were support staff who failed to provide any support to the students. Id. at 220:12-19 (D. Cook). On this basis, the Hearing Officer found Ms. Cook was only partially credible, a finding to which the Court defers given the absence of facts in the record to second guess the Hearing Officer’s finding. Richardson v. District of Columbia,
Even if the Court were to credit Ms. Cook’s observation that T.W. had to be redirected several times and simply laid his head on his desk for most of his math class, Plaintiff has still failed to provide sufficient evidence to show T.W. is not receiving an educational benefit. The IDEA only requires the District to provide T.W. with an educational program “sufficient to confer some educational benefit.” Leonard ex rel. Leonard v. McKenzie,
In her motion, Plaintiff argues that “the question for the hearing officer should have been was [sic] whether the District’s placement of T.W. at Ballou allowed for him to gain [sic] educational benefit as it related to progress and advancement.” Pl.’s Mot. at 13. As the Hearing Officer Determination explicitly notes, this is the question the Hearing Officer considered. A.R. 15. The Hearing Officer concluded, as does the Court, that Plaintiff failed to present evidence that T.W. could not access the curriculum and was not receiving an educational benefit at Ballou. Id.
Plaintiff attempts to refine the argument, positing that the “specific” relevant question is whether T.W.’s transfer into the ED class “allowed him to adequately participate in [sic] curriculum.” Pl.’s Mot. at 13. Plaintiff’s counsel briefly argued
2. The Hearing Officer’s Purported Failure to Consider the Composition of the Multi-Disciplinary Team does not Require Remand
Plaintiff also argues that the District violated the procedural requirements of the IDEA by convening a MDT meeting in July 2010 without a required team member: T.W.’s social worker, Ms. Feltom, from the Children’s Guild. The Court agrees with Defendant that this argument was not properly raised before the Hearing Officer, and in the alternative, Plaintiff failed to show the absence of the social worker violated T.W.’s substantive rights.
a. Plaintiff did not properly raise the ■ issue of the composition of the MDT team before the Hearing Officer.
“Absent evidence that ‘an attempt was made to raise this issue before the hearing officer’ and ‘absent a showing that exhaustion would be futile or inadequate, a party must pursue all administrative avenues of redress under the IDEA before seeking judicial review under the Act.’ ” Roark,
In the section of the Due Process Complaint entitled “Nature of the Problem,” Plaintiff briefly states that “[the District] failed to ensure that the appropriate persons were present at the student’s MDT meeting from the Children’s Guild, most importantly, the student’s social worker and/or therapist.” A.R. 81. The rest of the Due Process Complaint is silent on this issue. Plaintiff did not raise the absence of the social worker in the “Issues Presented” section of the Due Process Complaint, nor did Plaintiff request any relief on this issue. Id. at 81-82. This issue is also included in the initial Prehearing Order. A.R. 103 (9/27/10 Prehearing Order). In addition, Plaintiff appears to have raised the issue during the “resolution meeting” held with a compliance officer prior to the Due Process Hearing. Id. at 92-93, 96 (Resolution Meeting Notes). Nevertheless, at the Hearing itself, Plaintiff failed to present any evidence in support of this claim.
b. Plaintiff failed to introduce evidence that the absence of T.W.’s social worker impaired T.W.’s or Plaintiffs substantive rights.
“[A] claim based on a violation of IDEA’S procedural requirements ‘is viable only if those procedural violations affected the student’s substantive rights.’ ” Kings-more ex rel. Lutz v. District of Columbia,
V. CONCLUSION
For the foregoing reasons, Plaintiff failed to show by a preponderance of the evidence that the Hearing Officer erred in concluding that T.W. was not denied a free appropriate public education. The District was not required to consider private placement for T.W. because an adequate public placement was available. Ballou Senior High School provides all of the services required by T.W.’s IEP. The shorter school day at Ballou is not a material deviation from T.W.’s IEP since T.W. receives 97% of the hours of instruction dictated by the IEP, receives all of the services required by his IEP, and there is no evidence the missing time is material to T.W.’s IEP. Despite T.W.’s behavioral issues early on at Ballou, his behavior has improved since moving into the ED class, and there is no evidence in the record to indicate T.W. is not receiving an educational benefit from the program. Finally, because Plaintiff failed to raise before the Hearing Officer the issue of the composition of the July 2010 meeting of the MDT team, and failed to present any evidence that the procedural issue violated T.W.’s substantive rights, the Court does not reach the claim. Therefore, Plaintiffs [11] Motion for Summary Judgment is DENIED and Defendant’s [13] Cross-Motion for Summary Judgment is GRANTED.
An appropriate Order accompanies this Memorandum Opinion.
Notes
. For ease of reference, the Court shall refer to the parties' pleadings as follows: Pl.’s Mot. for Summ. J., ECF No. [1] ("PL's Mot.”); Def.’s Cross-Mot. for Summ. J. & Opp'n to Pl.’s Mot. for Summ. J., ECF Nos. [13, 14] ("Def.’s Opp'n”); PL’s Reply & Opp'n to Def.'s Cross-Mot. for Summ. J., ECF Nos. [15, 16] ("PL’s Reply”); Def.’s Reply, ECF No. [17],
. The IDEA was re-authorized and re-codified pursuant to the Individuals with Disabilities Education Improvement Act in 2004, Pub. L. No. 108-446, 118 Stat. 2647 (2004). The short title of the re-authorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. No 108-446, § 101;
. Unless otherwise indicated, all section references are to Title 20 of the United States Code.