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Hymes v. District of Columbia

March 2, 2005

JON & SHELLY HYMES, PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

REPORT AND RECOMMENDATION

This case is before me for a Report and Recommendation pursuant to LCvR 72.3. I herein take up plaintiffs' Motion for Summary Judgment ("Plains. Mot.") and Defendant's Motion for Summary Judgment ("Defs. Mot.). For the reasons stated below, I recommend that plaintiffs' motion be denied and that defendant's motion be granted.

BACKGROUND

S.H. is a six-year-old boy who suffers from autism. Complaint ("Comp.") ¶ 4. His parents, Mr. and Mrs. Jon Hymes ("plaintiffs"), bring this action against the District of Columbia ("defendant") on the minor's behalf, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983. Id. ¶ 1.*fn1 Defendant operates the District of Columbia Public School System ("DCPS") and is responsible for implementing the IDEA with regard to disabled children who reside in the District of Columbia. Id. ¶ 3.

During the 2001-2002 school year, S.H. attended the River School, a private school. Id. ¶ 5. In February of 2002, plaintiffs visited the McLean School ("McLean"). Plains. Mot., H.O. Decision at 5.*fn2 On May 28, 2002, DCPS convened a meeting in order to develop a new Individualized Education Program ("IEP") for S.H.. Id. ¶ 7. At the meeting, DCPS representative Cassandra Williams Pinkey ("Pinkey") proposed the autism program at Myer Elementary School ("Myer ES") as an appropriate placement for S.H. for the 2002-2003 school year. Id. ¶ 8; Plains. Mot., H.O. Decision at 4. No details about Meyer ES were given by DCPS at the meeting, but plaintiffs agreed to visit the school to learn more about the program. Plains. Mot., H.O. Decision at 4. Horace Mann Elementary School was also discussed at the meeting and ultimately rejected in favor of Meyer ES. Id.

On August 19, 2002, plaintiffs notified DCPS Assistant Superintendent Anne Gay, by letter, of their unilateral intent to enroll S.H. at McLean. Comp. ¶ 10; Administrative Record ("A.R.") at 48. On the same day, but by a separate letter, plaintiffs also requested a due process hearing. Plains. Mot., H.O. Decision at 5; A.R. at 53. Plaintiffs never received a response to their letter notifying DCPS of their unilateral decision to place S.H. at McLean.

On October 7, 2002, a due process hearing was held in order to determine whether or not plaintiffs were entitled to be reimbursed for the cost of sending S.H. to McLean. Comp. ¶ 12. Hearing Officer Robin Boucher ("the Hearing Officer") concluded that DCPS did not have to reimburse plaintiffs for S.H.'s education at McLean. Id. ¶ 13.

DISCUSSION

I. The Hearing Officer's Decision

A. Legal Standard for Review of the Hearing Officer's Decision

In reviewing a hearing officer's decision under the IDEA, "the court (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." 20 U.S.C. § 1415(i)(2)(B). When determining whether plaintiffs' parents may be reimbursed for tuition they have paid to a private institution, courts must determine 1) whether FAPE was denied and 2) whether the private school placement was proper for the child. The court then applies the two-part test set forth by the Supreme Court in Bd. of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176 (1982). First, the court must consider whether"the State has complied with the procedures set forth in the Act." Id. at 206. Second, the court must consider whether"the individualized education program developed through the Act's procedures [is] reasonably calculated to enable the child to receive educational benefits." Id. at 207.

B. The Hearing Officer's Findings and Conclusions

The hearing officer concluded that "the parties were on two separate tracks" as to the placement of the child for the 2002-2003 school year. She indicated that 34 C.F.R. § 300.503(a)(1)(I) requires written notice to be given to the parents of a child with a disability a reasonable time before the public agency proposes to change the educational placement of the child. She then concluded that there was an unreasonable lapse of time when DCPS issued no formal placement notice for 2002-2003 and when the parents did not communicate with DCPS. Plains. Mot. H.O. Decision at 6. Thus, the question she posed for her consideration-"Did DCPS fail to issue a prior notice within a reasonable time," id., was not specifically answered because it appeared that both parties caused the lateness of the notice. Instead, she issued a specific remedy by issuing the following order:

* DCPS shall issue a prior notice of placement at the Meyer ES autism program within five school days of receipt of the parents's written notification that they have visited the program and approved it; in the alternative, DCPS shall reconvene an IEP meeting to consider other placement options within 10 school days of receipt of the parents' written ...


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