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SMITH v. SQUILLACOTE

September 25, 1992

FRANKLIN L. SMITH, Plaintiff,
v.
THERESA SQUILLACOTE, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 Before the Court are plaintiff's and defendants' cross-motions for summary judgment and the oppositions thereto. This action concerns the legal standard governing the notice a public school system must give parents and guardians when it proposes to change a student's placement pursuant to the Individuals with Disabilities Education Act ("the IDEA" or "the Act"). 20 U.S.C.A. § 1400 et seq. (West 1990 & Supp. 1992). *fn1" Plaintiff, Superintendent of the District of Columbia Public Schools, contends that the Notices of Proposed Change in Educational Placement sent to defendants, the parents of a handicapped child, Karl Stand, were statutorily sufficient and that the hearing officer erred in finding the notices deficient. Further, plaintiff argues that the officer improperly denied plaintiff an opportunity to present evidence to establish the appropriateness of the proposed placement. Plaintiff requests that the Court reverse the hearing officer's findings, declare the notices statutorily sufficient, and remand the case to the administrative level for appropriate findings. Defendants request that the Court uphold the hearing officer's determinations. The Court grants plaintiff's motion and denies defendants' motion.

 Background

 Statutory Framework

 The IDEA provides federal funds to assist state and local agencies in educating disabled children. Recipients of these funds are required to provide all disabled children within their jurisdiction with "a free appropriate public education." 20 U.S.C.A. § 1412(1). As a recipient, the District of Columbia Public Schools (DCPS) is required to develop an individualized education program (IEP) for each eligible disabled child, with input from the child's parents. The IEP must describe specific educational goals and requirements for the child and place the child in a school capable of fulfilling the child's needs. See id. §§ 1412(4), 1414(a)(5), and 1401(a)(20). The Act also imposes extensive procedural requirements on the DCPS to protect eligible children and their parents and guardians. See id. § 1415. The procedural requirements include written notice to the child's parents or guardians whenever the DCPS proposes to initiate or change the "identification, evaluation, or educational placement of the child . . . ." Id. § 1415 (b)(1)(C). Provisions must also be made for the parents or guardians to challenge the proposed action in a "due process hearing" before an impartial hearing officer. Id. § 1415(b)(2). Either party may appeal the decision of the hearing officer in a civil action in either a state court or a federal district court. Id. § 1415(e).

 Factual Background2

 Karl is an eight-year-old disabled child living in the District of Columbia. In December of 1988, Karl's mother filed a Comprehensive Student Services form requesting that the DCPS provide Karl with special education and related services. *fn3" Pursuant to that request, the DCPS evaluated Karl. The DCPS issued a Confidential Multi-disciplinary Team Report (MDT Report), dated March 29, 1989, and provided a copy of the report to Karl's parents. The report concluded that Karl was a "multiply handicapped" child eligible for a free appropriate public education under the IDEA. On April 7, 1989, an IEP meeting was held, which Karl's parents and their Special Education Consultant attended.

 Subsequently, an IEP was prepared for Karl, and on April 11, 1989, the DCPS sent Karl's parents a Notice of Proposed Change in Educational Placement. The notice proposed placing Karl in the Sharpe Health School, a public special education school for multihandicapped students. Attached to the notice was a full page description of the program offered at the Sharpe Health School. The notice also stated in part that Karl was "multiply handicapped," that the DCPS had considered placements at the Lab School of Washington and the Ivymount School, and had rejected these options because an appropriate public placement was available. *fn4"

 At the parents' request, an appropriateness hearing was held on June 28, 1989, to contest the proposed placement. At the conclusion of the hearing and later in a written opinion dated July 6, 1989, the hearing officer held that the DCPS had not complied with the procedural requirements regarding notice contained in 34 C.F.R. §§ 300.504, 300.505 (1991). Specifically, the hearing officer found that the DCPS should have explained in the notice why it had classified Karl as "multiply handicapped" and why Karl could not be placed in a program designed solely to meet one of his handicapping conditions. The hearing officer gave the DCPS two days to amend its notice.

 The DCPS issued a revised notice on June 30, 1989. The revised notice explained in part that the DCPS considered Karl "multiply handicapped" because it found him to be both "learning disabled" and "other health impaired." The revised notice further explained in part that the DCPS considered these disabilities to be concomitant. Thus, the DCPS believed Karl would have difficulty achieving educationally in a program designed to deal with only one of his disabilities.

 A second appropriateness hearing was held on July 31 and August 1, 1989. On August 11, 1989, the hearing officer again held that the notice was statutorily deficient. Due to the deficient notice, the hearing officer would not allow the DCPS to present evidence regarding the appropriateness of its proposed placement. However, the hearing officer allowed Karl's parents to present evidence regarding their preferred placement, the Ivymount School, a private school for learning disabled children. The hearing officer found the Ivymount School to be an appropriate placement and ordered the DCPS to place and fund Karl there for the 1989-1990 school year. The DCPS filed this action on September 11, 1989. In its complaint, the DCPS stated its position that first, the notice was sufficient and the hearing officer erred in ruling otherwise, and second, "any defect with DCPS' Notice and Revised Notice was non-prejudicial and should not have precluded DCPS from moving forward on the merits of the case . . . ." (Compl. P 27). *fn5"

 Discussion

 Timeliness of the Appeal

 Defendants have asked the Court to limit its review to the hearing officer's determination of August 11, 1989. Defendants contend that plaintiff's challenge to the July 6, 1989, determination was not timely because it was not filed within 30 days from that date. *fn6" Although an appeal of a hearing officer's determination under the IDEA generally must be brought within 30 days of a final decision, see Spiegler v. District of Columbia, 275 U.S. App. D.C. 260, 866 F.2d 461 (D.C. Cir. 1989), "'the philosophy of the Act is that a plaintiff must first exhaust the state administrative remedies provided under the Act, including the administrative appeals provisions, before bringing an action in federal court to challenge the evaluation and placement of a child.'" Cox v. Jenkins, 278 U.S. App. D.C. 312, 878 F.2d 414, 418 (D.C. Cir. 1989) (quoting Riley v. Ambach, 668 F.2d 635, 640 (2d Cir. 1981) and citing 20 U.S.C.A. § 1415(e)(2), (f)). ...


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