United States District Court, D. Columbia
September 19, 2005.
A.I., a minor, by her parents and next friends, Rosemary & Michael Iapalucci, and ROSEMARY & MICHAEL IAPALUCCI, Plaintiffs,
DISTRICT OF COLUMBIA, and ROBERT C. RICE, in his official capacity as Interim Superintendent of the District of Columbia Public Schools, Defendants.
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiffs Rosemary and Michael Iapalucci, on behalf of their
minor daughter, A.I., and in their own right, brought this action
under the Individuals with Disabilities Education Act ("IDEA" or
"the Act"), 20 U.S.C. § 1400 et. seq., against Defendants, the
District of Columbia and Robert C. Rice, in his official capacity
as Interim Superintendent of the District of Columbia Public
Schools. The IDEA provides that all children with disabilities
will be provided a free and appropriate public education
("FAPE"), and provides for procedural safeguards to ensure that
disabled children receive individualized education programs
("IEP") to fulfill the Act's goals. This case comes to the Court
on appeal from the April 21, 2004 Hearing Officer Determination ("H.O.D.") and related proceedings.
Currently before the Court are Plaintiffs' Motion for Summary
Judgment ("Pls.' Summ. J."), Defendants' Opposition to
Plaintiffs' Motion for Summary Judgment ("Defs.' Opp'n"),
Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion
for Summary Judgment (Pls.' Reply), Defendants' Motion for
Summary Judgment ("Defs.' Summ. J."), Plaintiffs' Opposition to
Defendants' Motion for Summary Judgment ("Pls.' Opp'n") and
Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion
for Summary Judgment ("Defs.' Reply"). Upon a searching
examination of the present filings, the relevant case law, and
the entire record herein, the Court shall deny Plaintiffs' Motion
for Summary Judgment and shall grant Defendants' Motion for
A.I. is thirteen-year old child*fn1 who has been coded by
the District of Columbia Public Schools (DCPS) with "Multiple
Disabilities," which includes a Speech-Language Impairment, a
Learning Disability, and an Other Health Impairment, and has been
found to be in need of special education. Compl. ¶ 7; Plaintiffs'
Statement of Undisputed Facts ("Pls.' Facts") ¶ 4. A.I. was
adopted by Rosemary and Michael Iapalucci when she five years and
nine months old from an orphanage in Kazakhstan. Compl. ¶ 6;
Pls.' Facts ¶ 2; R. at 56. Upon adoption, the Iapaluccis enrolled
A.I. in pre-Kindergarten at Janney Elementary School ("Janney"),
their neighborhood elementary school in the District of Columbia.
4/2/2004 Tr. at 179. Because A.I. was almost six-years old at
this time, pre-Kindergarten was a year behind her grade level.
Id. Mrs. Iapalucci testified that upon enrollment she and Mr. Iapalucci immediately
requested speech therapy. Id. When none was provided by the
school, they obtained outside therapy at their own cost. Id. At
the end of A.I.'s Kindergarten year, her teacher recommended more
testing. Id. In response to this recommendation, Gabrielle
Grunau, a DCPS School Psychologist, conducted a psychological
evaluation of A.I. on May 19, 1999, and determined that "[a]t
this time, [A.I.] does not meet the criteria as a Learning
Disabled student, and therefore, is not considered multiply
handicapped. She is Speech Impaired." Pls' Summ. J., Ex. 1 at 6.
The Iapaluccis again requested testing when A.I. was in second
grade because she continued to have difficulties in the
classroom. Pls.' Summ. J. at 6; 4/2/2004 Tr. at 179.
Concerned about the level of difficulty A.I. was having
completing her homework, the Iapaluccis sought an outside
neuropsychological evaluation by Dr. Patricia Papero when A.I.
was in fourth grade. 4/2/2004 Tr. at 179; R. at 56. Dr. Papero
observed and tested A.I. on three occasions from October 25, 2002
through October 31, 2002. R. at 56. Dr. Papero concluded that
A.I. should be classified by the DCPS as having an Other Health
Impairment, a Learning Disability, and Speech/Language Disorder.
R. at 69. Furthermore, Dr. Papero suggested that "[m]ore
intensive intervention must be put in place as possible in order
for [A.I.] to have a chance of making a better rate of progress"
and recommended that the Iapaluccis consider placing A.I. in a
"self-contained language-based learning program." R. at 70. She
also recommended that the Iapaluccis seek a comprehensive
speech/language evaluation. R. at 72.
On December 12, 2002, the Iapaluccis had A.I. evaluated by Lisa
Washington, a speech pathologist with the University of the
District of Columbia. R. at 45. Ms. Washington agreed with Dr.
Papero's conclusion that A.I. would benefit from "an educational
program that could more fully integrate language and learning strategies into the
classroom curriculum." R. at 50; Defs.' Statement of Material
Facts as to Which There is No Dispute ("Defs.' Facts") ¶
4(3).*fn2 H.O.D. at 6-7, R. at 101.
The Iapaluccis subsequently provided both Ms. Washington's and
Dr. Papero's reports to the DCPS. On January 24, 2003, Dr. Belton
Wilder a clinical psychologist contracted by the DCPS
conducted a review of Dr. Papero's evaluation. R. at 51. In large
part, Dr. Wilder's conclusions did not differ from those of Dr.
Papero, and Dr. Wilder agreed that A.I. would require educational
accommodations for her weaknesses. R. at 54. During this same
time period, on January 17, 2003, the DCPS conducted an
occupational therapy ("OT") evaluation of A.I., wherein the
therapist, Amanda Farber, OTR/L, found that A.I. "demonstrates
average visual motor skills and very strong visual perceptual
skills. She demonstrates decreased speed when performing fine
motor coordination and manipulation skills although she has fair
accuracy when provided increased time." R. at 196. The OT
evaluation concluded that A.I. did not require special education
OT services, but did recommend: (1) that A.I. be provided a
pencil grip to "improve comfort and pressure of grasp," (2)
participation in extracurricular activities to improve balance
and gross motor skills, (3) visual aids "to enhance learning
secondary to her strong visual perceptual and visual memory
skills," and (4) additional time to complete tasks with fine
motor components. R. at 197-97.
As a result of the testing, DCPS convened a Multidisciplinary
Team ("MDT")/IEP meeting on March 18, 2003, in order to develop a
strategy to cope with A.I.'s disabilities. Pls.' Summ. J. at 8;
R. at 147. While they attended and participated in the meeting,
the Iapaluccis were ultimately dissatisfied with the number of
hours of special education recommended in the resulting IEP
approximately 9.5 hours/week*fn3 and refused to signed the
IEP. Compl. ¶ 15, 4/2/2004 Tr. at 182. According to the
Iapaluccis, the IEP also failed (1) to include A.I.'s present
levels of educational performance in the classroom, (2) identify
appropriate goals and objectives by not specifying the goals and
objectives that she had not previously mastered, (3) address her
OT-based needs, (4) list any classroom accommodations, and (5)
place her in a situation where she was provided a low
student-teacher ratio for large periods of time. See Pls.'
Facts ¶¶ 19-22. Despite these objections, A.I. received these
services provided for in her IEP for the remainder of the
2002-2003 school year at Janney. 4/2/2004 Tr. at 140; Pls.' Summ.
J. at 9.
On June 11, 2003, a MDT/IEP meeting was held in order to review
A.I.'s IEP, to examine her progress, and to discuss A.I.'s IEP
for the 2003-2004 school year. The Iapaluccis once again attended
and expressed their concern that the proposed IEP would not
provide A.I. with enough support for her to make progress. R. at
202. It was their impression, based on the recommendations of the
experts, that A.I. should be receiving more of her education in a
special education setting, rather than in a regular classroom
setting. R. at 203. The minutes of the IEP meeting reflect that the Iapaluccis agreed with the goals of the
IEP but rejected (1) the level of service being offered and (2)
Janney Elementary School ("Janney") as a placement for A.I.
Furthermore, they opined that certain goals should have been
included in the IEP but wrongly were omitted. R. at 203. Despite
these concerns, the IEP team concluded that mainstreaming A.I.
would have educational benefit and declined to modify the IEP to
provide her with more time out of the classroom in special
education.*fn4 R. at 209. On June 24, 2003, the Iapaluccis
informed Janney that they had decided to enroll A.I. in "a
non-public special education setting" and that "[t]hey do not
believe that [A.I.] would be expected to make meaningful
educational progress in the program and placement proposed
through the recent IEP process." R. at 76. The Iapaluccis settled
on Kingsbury Day School ("Kingsbury"), a private school in
Washington, D.C., that offers special education services for
children with language disorders, learning disabilities, and
social/emotional disorders, and enrolled A.I. in school there for
the 2003-2004 school year. Compl. 16-17; R. at 76. By all
accounts, A.I. has been successful in this placement, wherein she
is enrolled in a class of ten students, as opposed to
twenty-five, and can now complete her homework independently. R.
at 103 (H.O.D.); Pls. Summ. J. at 10; 4/2/2004 Tr. at 139, 154,
On November 4, 2003, the Iapaluccis attended an IEP meeting at
Kingsbury intended to develop a new IEP for A.I. for the
2003-2004 school year there. R. at 94. The IEP that was developed
by Kingsbury included one-hour and fifteen-minutes of speech and
language therapy each week. R. at 77. The IEP noted that A.I.
needed small group instruction and one-on-one support and that putting her in the least restrictive placement
"will result in loss of self esteem as [a] competent learner." R.
at 93. The IEP developed by Kingsbury placed A.I. at Kingsbury
for the 2003-2004 school year, R. at 93, and Mr. Iapalucci signed
the IEP indicating that he, as A.I.'s parent, agreed with the
IEP. R. at 77. On November 13, 2003, the Iapaluccis filed a
request with the DCPS for a due process hearing seeking funding
and placement at Kingsbury and alleging that "DCPS failed to
develop an appropriate IEP [and] placement for [A.I.]." R. at 6.
The hearing was scheduled for December 12, 2003, and was
presided over by Terry Michael Banks, an independent hearing
officer. Pls.' Facts ¶ 30. Due to the number of witnesses and the
late hearing time, the hearing had to be continued to a date
agreed upon by both counsel for Plaintiffs and Defendants.
12/12/03 Tr. at 115-16. On February 17, 2004, Plaintiffs' counsel
requested the Student Hearing Office to set a date for
reconvening the hearing, stating that as of February 17, 2004,
there had been no date proposed to him for a hearing. R. at 114.
On March 11, 2004, the Student Hearing Office informed counsel
for both parties that a date had been set to reconvene on March
26, 2004. R. at 142. Plaintiffs' counsel requested a continuance
and Hearing Officer Banks granted the unopposed motion and set
the hearing for April 2, 2004. R. at 109-11. At the April 2, 2004
hearing, Hearing Officer Banks denied Plaintiffs' motion for
relief based upon failure to conform to the 45-day procedural
time limit required by 34 C.F.R § 300.511(a) on conducting due
process hearings and rendering a final decision on the due
process petition because he found "[t]here has been no effort
between counsel to set a date" despite their agreement to do so
at the December 12, 2003 hearing. 4/2/2004 Tr. at 17.
In the April 21, 2004 H.O.D. resulting from the December 12,
2003 and April 2, 2004 hearings, Hearing Officer Banks concluded
that DCPS had met its burden of proving the IEP for placement at Janney was appropriate for A.I. R. at 103 (H.O.D.).
The decision of the IEP Team for A.I. to receive her education
principally in the regular classroom was determined to be
reasonable in light of testimony by A.I.'s teachers that she was
benefitting from interacting with children who were not disabled.
R. at 104 (H.O.D.). Hearing Officer Banks further concluded that
while the testimony of Mrs. Iapalucci regarding the progress A.I.
made at Kingsbury was credible, DCPS had "provided [A.I.] with
the education benefit as required by IDEA." R. at 105 (H.O.D.).
According to Hearing Officer Banks, "DCPS is obligated only to
provide educational benefit to [A.I.], not maximize her
educational experience." Id.
In contesting the H.O.D., Plaintiffs' Complaint alleges three
central claims. Compl. ¶¶ 49-59. First, Plaintiffs charge that
Defendants failed to provide A.I. with a free appropriate public
education and due process of law. Second, Plaintiffs charge that
Defendants failed to place and fund A.I. at Kingsbury for the
2003-2004 school year. Third, Plaintiffs charge that Hearing
Officer Banks erroneously denied reimbursement of the Kingsbury
tuition costs to the Iapaluccis. Defendants, in addition to
contesting the claims made by Plaintiffs, contend in response:
(1) Plaintiffs are not entitled to private school tuition
reimbursement where a public school was appropriate, and where
the parents were given a chance to have their objections to the
IEP heard; (2) the Iapalucci's failure to cooperate with the DCPS
ensured that they forfeited any right to reimbursement; (3) the
parents' failure to provide notice that would permit the IEP team
to address their concerns with Janney nullified their right to
reimbursement for private school tuition; and (4) Plaintiffs'
interest in a private school placement should have been expressed
at the MDT/IEP meeting before the unilateral withdrawal of A.I
from Janney. See Defs.' Summ. J. at 18-25. II: STATUTORY FRAMEWORK
The purpose of the IDEA is "to ensure that all children with
disabilities have available to them a free appropriate public
education ["FAPE"] that emphasizes special education and related
services designed to meet their unique needs. . . ."
20 U.S.C. § 1400(d)(1)(A). "Implicit" in the IDEA's guarantee "is the
requirement that the education to which access is provided be
sufficient to confer some educational benefit upon the
handicapped child." Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester County v. Rowley, 458 U.S. 176, 200,
102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("Rowley").
As a condition of funding under the IDEA, the Act requires
school districts to adopt procedures to ensure appropriate
educational placement of disabled students. See
20 U.S.C. § 1413. School districts must also develop comprehensive plans for
meeting the special educational needs of disabled students. See
20 U.S.C. § 1414(d)(2)(A). These plans, known as individualized
education plans, or IEPs, must
include a written statement of evaluation and plan of
action that sets forth the child's present level of
educational performance, measurable goals, including
benchmarks or short-term objectives, special
education and related services to be provided to the
child and program modifications or supports for
school personnel that will be provided to the child,
the child's ability to interact with non-disabled
children, a statement of administrative modification,
the projected date for the beginning of services, and
the anticipated frequency, location and duration of
those services, and how the child's progress toward
the annual goals will be measured.
Diatta v. Dist. of Columbia, 319 F. Supp. 2d 57
, 66 (D.D.C.
2004) (citing 20 U.S.C. § 1414(d)(1)(A)(i)-(vi), (viii)).
A student's eligibility for a FAPE under the IDEA is determined
by the results of testing and evaluating the student, and the
findings of a "multidisciplinary team" and/or "individualized educational plan team" ("MDT/IEP team"). Such a team consists of
the disabled student's parents, teachers, and other educational
specialists, who meet and confer in a collaborative process to
determine how best to accommodate the needs of the students to
provide a FAPE. See 20 U.S.C. § 1414(d)(1)(B) (outlining the
membership of the IEP team). The federal regulations interpreting
the IDEA require that a meeting to develop an IEP be held within
thirty (30) days of the determination of a child's need for
special education and related services.
34 C.F.R. § 300.343(b)(2).*fn5 The District of Columbia's regulations
follow suit. D.C. Mun. Regs. tit. 5 § 3007.1.
The IDEA also guarantees parents of disabled children the
opportunity to participate in the evaluation and placement
process. See 20 U.S.C. § 1414(f) (allowing for alternative
means of participating in meetings, such as tele- or
video-conferencing), 1415(b)(1) (ensuring that the parents have
the opportunity to participate fully in the process by providing
access to records relating to the child and allowing for
independent evaluations of the child). "The IEP team shall
conduct an initial evaluation of a child within a reasonable time
of receiving a written referral and parental consent to proceed
within timeliness consistent with Federal law and D.C. Code §
38-2501(a)." D.C. Mun. Regs. tit. 5, § 3005.2. The regulations
require DCPS to use "a variety of assessment tools and
strategies" to gather "relevant functional and developmental
information about the child." Id. § 3005.9(b). Parents who
object to their child's "identification, evaluation, or educational placement" are entitled to an impartial due
process hearing, see 20 U.S.C. §§ 1415(b)(6)(A) (permitting the
filing of a complaint by objecting parents), (f)(1)(A) (providing
parents who file a complaint under § 1415(b)(6) with the
opportunity to have an impartial due process hearing), at which
they have a "right to be accompanied and advised by counsel."
20 U.S.C. § 1415(h)(1). A qualified impartial Hearing Officer
conducts the due process hearing in accordance with the Act. D.C.
Mun. Regs. tit. 5, § 3030.1. Under the IDEA, a party who is a
parent of the disabled child is entitled to attorney's fees and
costs if he or she is a "prevailing party."
20 U.S.C. § 1415(i)(3)(B). To be the prevailing party, the parent(s) must
gain a "material alteration of the legal relationship of the
parties" and gain judgment on the merits. Bridgeforth v. Dist.
of Columbia, 933 F. Supp. 7, 10 (D.D.C. 1996).
Parents "aggrieved by" a Hearing Officer's findings and
decision may bring a civil action in either state or federal
court. 20 U.S.C. § 1415(i)(2); D.C. Mun. Regs. tit. 5, § 3031.5.
The district court has remedial authority under the Act, and
broad discretion to grant "such relief as the court determines is
appropriate" under the IDEA as guided by the goals of the Act.
20 U.S.C. § 1415(i)(2)(B)(iii).
III: LEGAL STANDARDS
A. Summary Judgment
In this case the Court is presented with cross motions for
summary judgment. A party is entitled to summary judgment if the
pleadings, depositions, and affidavits demonstrate that there is
no genuine issue of material fact in dispute and that the moving
party is entitled to judgment as a matter of law. See
Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Under the summary judgment standard, Defendant, as the moving
party, bears the "initial responsibility of informing the district court of the basis for
[its] motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits which [it] believe[s] demonstrate
the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Plaintiff, in response to Defendants' motion, must "go
beyond the pleadings and by [his] own affidavits, or depositions,
answers to interrogatories, and admissions on file, `designate'
specific facts showing that there is a genuine issue for trial."
Id. at 324 (internal citations omitted).
Although a court should draw all inferences from the supporting
records submitted by the nonmoving party, the mere existence of a
factual dispute, by itself, is not sufficient to bar summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the
factual assertion must be capable of affecting the substantive
outcome of the litigation; to be genuine, the issue must be
supported by sufficient admissible evidence that a reasonable
trier-of-fact could find for the nonmoving party. Laningham v.
U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty
Lobby, 477 U.S. at 251, 106 S.Ct. 2505 (the court must determine
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law"). "If the evidence is
merely colorable, or is not sufficiently probative, summary
judgment may be granted." Liberty Lobby, 477 U.S. at 249-50,
106 S.Ct. 2505 (internal citations omitted). "Mere allegations or
denials in the adverse party's pleadings are insufficient to
defeat an otherwise proper motion for summary judgment."
Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The
adverse party must do more than simply "show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Instead, while the movant bears the
initial responsibility of identifying those portions of the
record that demonstrate the absence of a genuine issue of
material fact, the burden shifts to the non-movant to "come
forward with `specific facts showing that there is a genuine
issue for trial.'" Id. at 587, 106 S.Ct. 1348 (citing
Fed.R.Civ.P. 56(e)) (emphasis in original).
B. The IDEA
1. Legal Standard
The IDEA permits "any party aggrieved by the findings and
decision" rendered during administrative proceedings to "bring a
civil action" in state or federal court without regard to the
amount in controversy. 20 U.S.C. § 1415(i)(2);
34 C.F.R. § 300.512(b)(3). The reviewing court "shall receive the records of
the administrative proceedings, shall hear additional evidence at
the request of a party, and, 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)(C);
34 C.F.R. § 300.512(b)(3). In a review of an H.O.D., the burden of
proof is always on the party challenging the administrative
determination, who must "at least take on the burden of
persuading the court that the Hearing Officer was wrong, and that
a court upsetting the officer's decision must at least explain
its basis for doing so." Reid v. Dist. of Columbia,
401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie,
862 F.2d 884, 887 (D.C. Cir. 1988) ("Kerkum I")). Little deference,
however, is due those hearing decisions which lack "reasoned and
specific findings." Id. (quoting Kerkum v. Superintendent,
D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991) "Kerkum
II")). The Supreme Court has interpreted the "preponderance standard
of review not to be an allowance of unfettered de novo review."
Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63, 67 (D.D.C.
2005) (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034). Courts
must give administrative proceedings "due weight," and "[f]actual
findings from the administrative proceedings are to be considered
prima facie correct." Id. (quoting S.H. v. State-Operated Sch.
Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)).
Courts may not substitute their own views for those of the
Hearing Officer, Rowley, 458 U.S. at 206, 102 S.Ct. 3034; Shaw
v. Dist. of Columbia, 238 F. Supp. 2d 127, 134 (D.D.C. 2002),
and a court upsetting a Hearing Officer's decision "must at least
explain its basis for doing so." Ramirez, 377 F. Supp. 2d at 67
(quoting Kerkam I, 862 F.2d at 887). However, the statute also
suggests "less deference than is conventional in administrative
proceedings," Reid, 401 F.3d at 521, since the district court
is allowed to hear additional evidence at the request of the
party. 20 U.S.C. § 1415(i)(2)(C)(ii). "When no additional
evidence is introduced in a civil suit seeking review of an
H.O.D., a motion for summary judgment operates as a motion for
judgment based on the evidence comprising the record." Ramirez,
377 F. Supp. 2d at 67 (citing 20 U.S.C. § 1415(i)(2)(B)).
2. Private Placement
Under the IDEA, parents who unilaterally decide to place their
disabled child in a private school, without obtaining the consent
of local school officials, "do so at their own risk." Florence
County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361,
126 L.Ed.2d 284 (1993) (quoting Burlington Sch. Comm. v. Dep't
of Educ. of Mass., 471 U.S. 359, 372, 105 S.Ct. 1996,
85 L.Ed.2d 385 (1985)). Parents may only receive tuition reimbursement if a
court concludes that (1) "the public school placement violated
the IDEA" and (2) "the private school placement was proper under the Act." Id. at 15, 114 S.Ct. 361.
Importantly, the first factor is a threshold question: if the
public school placement would have been appropriate, the court's
analysis ends, and a disabled child's parents are not entitled to
reimbursement. 20 U.S.C. § 1412(a)(10)(C)(I) (indicating that the
IDEA "does not require a local educational agency to pay for the
cost of education, including special education and related
services, of a child with a disability at a private school or
facility if that agency made [FAPE] available to the child and
parents elected to place the child in such private school or
facility"); M.C. v. Voluntown Bd. Of Educ., 226 F.3d 60, 66 (2d
Cir. 2000) ("Only if a court determines that a challenged IEP was
inadequate should it proceed to the second question."); T.R. v.
Kingwood Township Bd. Of Educ., 205 F.3d 572, 582 (3d Cir. 2000)
("The threshold question here focuses on the first prong-viz.,
whether the Board's proposed placement violated the IDEA. . . .
The parental reimbursement mandate comes into play only if we
answer yes to this initial question.").
Moreover, even when a court finds that parents of a disabled
child eligible for tuition reimbursement under Carter,
510 U.S. at 15, 114 S.Ct. 361, amendments made to the IDEA in 1997 allow a
court to reduce or deny reimbursement under certain
circumstances. See 20 U.S.C. § 1412(a)(10)(C)(iii); Ms. M. v.
Portland Sch. Comm., 360 F.3d 267, 271 (1st Cir. 2004) ("In
1997, Congress significantly amended IDEA and, in the process,
clarified the circumstances in which parents who unilaterally
remove their children from private school may receive tuition
reimbursement.") (citing Pub.L. No. 105-17, 111 Stat. 37
(1997)). A court may reduce or deny tuition reimbursement if,
inter alia, a disabled child's parents, prior to or during the
most recent IEP meeting before removing their child from school,
failed to "inform the IEP team that they were rejecting the
placement proposed by the public agency to provide a [FAPE] to
the child including stating their concerns and their intent to enroll their
child in a private school at public expense. . . ."
20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa). A court may also reduce or deny
tuition reimbursement "upon a judicial finding of
unreasonableness with respect to actions taken by the parents."
Id. § 1412(a)(10)(C)(iii)(IIII).
Plaintiffs move for summary judgment on the grounds that the
Hearing Officer failed to properly allocate the burden of proof,
ignored relevant evidence regarding A.I.'s IEP, and failed to
address the legal and factual issues in the case. Pls.' Summ. J.
at 15-16. Defendants dispute these allegations and move for
summary judgment on the grounds that the Hearing Officer's
determinations that (1) DCPS provided A.I. with a FAPE and (2)
that an adequate IEP had been developed were reasonable.
In reviewing an administrative determination under the IDEA,
the Court must address two questions that are aimed at the DCPS's
paralleling responsibilities to comply with the procedural and
substantive requirements of the IDEA:
First, has the State complied with the procedures set
forth in the Act? And second, is the individualized
educational program developed through the Act's
procedures reasonably calculated to enable the child
to receive educational benefits? If these
requirements are met, the State has complied with the
obligations imposed by Congress and the courts can
require no more.
Petersen v. Hastings Pub. Schs., 31 F.3d 705
, 707 (8th Cir.
1994). Accordingly, the Court must analyze: (1) whether the IEP
designed for A.I. was procedurally and substantively deficient,
and (2) whether, given the contours of A.I.'s IEP, was A.I.
receiving sufficient educational benefits to meet the
requirements of a FAPE. Because this Court finds that the
evidence provided by Defendants was sufficient to establish that
A.I. received meaningful educational benefit despite some procedural deficiencies with the actual IEP itself,
Defendants' Motion for Summary Judgment is granted and
Plaintiffs' Motion for Summary Judgment is denied.
A. The Alleged Procedural and Factual Deficiencies in the IEP
Plaintiffs allege roughly six deficiencies in A.I.'s IEP, each
of which stem from the testimony of Dr. Laura Solomon offered at
the April 2, 2004 hearing before the Hearing Officer. Pls.' Summ.
J. at 9; 4/2/2004 Tr. at 96 (beginning of Dr. Solomon's
Testimony), 121-33 (testimony of Dr. Solomon describing how the
IEP is deficient in her opinion), 169 (end of Dr. Solomon's
testimony). The alleged deficiencies are:
1. The IEP did not include a description of A.I.s'
present level of performance in the classroom.
2. The IEP did not identify goals and objectives
appropriate for A.I.'s skill level.
3. The IEP failed to include those goals from A.I.'s
previous IEP that she had failed to master.
4. The IEP failed to include an implementation
strategy to insure A.I. met the goals and objectives
5. The IEP did not address A.I.'s fine or gross motor
6. The IEP did not provide A.I. with any classroom
Id. at 9. According to Plaintiffs, "DCPS has never offered any
testimonial or written evidence to address or refute any of
these deficiencies. The law on this point is clear: under the
IDEA, placement is to be based on the IEP." Pls.'Opp'n at 4.
Plaintiffs stress "[i]f the IEP is [in]appropriate [sic], the
placement is defacto inappropriate." Id. In response to
Plaintiffs' assertion of procedural deficiencies, Defendants
essentially concede the existence of some deficiencies. See
Defs.' Reply at 8. However, Defendants assert that "[i]nstances
of minor nonconformance with an IEP does not negate a placement." Id.
The Supreme Court has long recognized that the adequacy of an
IEP is to be judged by whether the procedural requirements of the
IDEA have been satisfied. In relevant part, the Court stated:
When the elaborate and highly specific safeguards
embodied in § 1415 are contrasted with the general
and somewhat imprecise substantive admonitions
contained in the Act, we think that the importance
Congress attached to these procedural safeguards
cannot be gainsaid. It seems to us no exaggeration to
say that Congress placed every bit as much emphasis
upon compliance with procedures giving parents and
guardians a large measure of participation at every
stage of the administrative process, see, e.g., §§
1415(a)-(d), as it did upon the measurement of the
resulting IEP against a substantive standard.
Rowley, 458 U.S. at 205-06, 102 S.Ct. 3034. Given the
importance of the IDEA's procedural safeguards, it should be of
no surprise that when a school district or other state agency
violates "the procedural requirements of the Act by failing to
develop an IEP in the manner specified, the purposes of the Act
are not served, and the district may have failed to provide a
FAPE." W.G. v. Bd. of Trustees of Target Range Sch. Dist.,
960 F.2d 1479
, 1485 (9th Cir. 1992) ("Target Range").
However, contrary to Plaintiffs' assertion, not every technical
violation of the procedural prerequisites of an IEP will
invalidate its legitimacy. See Amanda J. v. Clark County Sch.
Dist., 267 F.3d 877, 892 (9th Cir. 2001) ("Not every procedural
violation, however, is sufficient to support a finding that the
child in question was denied a FAPE."). While "[c]ourts must
strictly scrutinize IEPs to ensure their procedural integrity,"
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir.
1990) (citing Doe By and Through Doe v. Defendant I,
898 F.2d 1186, 1190 (6th Cir. 1990)), such "strictness . . . must be
tempered by considerations of fairness and practicality," id. As such, courts have consistently held that
"[t]echnical violations, for example, `will not render an IEP
invalid.'" Amanda J., 267 F.3d at 892 (quoting Burilovich v.
Bd. of Educ., 208 F.3d 560, 566 (6th Cir. 2000), cert. denied,
531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000)); see also
Defendant I, 898 F.2d at 1190-91 (procedural safeguards
emphasized by Rowley pertain to the process by which the IEP is
produced, "rather than the myriad of technical items that must be
included in the written document"). On the other hand, procedural
inadequacies that (1) "result in the loss of educational
opportunity," Target Range, 960 F.2d at 1484; or (2) seriously
infringe upon the parents' opportunity to participate in the IEP
formulation process, Roland M., 910 F.2d at 994; Hall by Hall
v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985);
Target Range, 960 F.2d at 1484; or (3) that "caused a
deprivation of educational benefits," Roland M.,
910 F.2d at 994, clearly result in the denial of a FAPE. See also Amanda
J., 267 F.3d at 892; Indep. Sch. Dist. Number 283 v. S.D.,
88 F.3d 556, 562 (8th Cir. 1996); Doe v. Ala. State Dep't of
Educ., 915 F.2d 651, 662 (11th Cir. 1990).
Upon an analysis of the six alleged procedural deficiencies in
the IEP developed at Janney for A.I., the Court concludes that
the deficiencies constitute "technical" violations of the IDEA
and by themselves are not sufficient to have rendered the IEP
inappropriate and ensured the denial of a FAPE. Several important
considerations lead to this finding. First, Plaintiffs
overstate some of the alleged procedural deficiencies. For
instance, while Plaintiffs claim that the March 18, 2003 IEP
developed at Janney for A.I. "did not include any description of
[A.I.'s] present levels of performance in the classroom," Pls.'
Summ. J. at 9, a review of the IEP does indicate a detailed
description of A.I.'s performance, at least in certain areas.
See, e.g., R. at 147 (listing under "Present Educational
Performance Levels in Areas Affected by the Disability," A.I.'s strengths in math and reading, the impact of
her disability in both areas, and test scores in both areas).
Again, while Plaintiffs claim that the IEP "failed to identify
goals and objectives appropriate for [A.I.'s] skill level," Pls.'
Summ. J. at 9, the IEP developed for A.I. actually contains six
pages of twenty-six (26) specific "short-term objectives" to be
evaluated quarterly and six (6) annual goals. See R. at 148-54.
While Plaintiffs might object to the appropriateness or adequacy
of some of these goals and objectives, their claim that the IEP
procedurally "failed to identify goals and objectives" is simply
contradicted by the record.
Second, to the extent that Plaintiffs are accurate in
asserting that the DCPS failed to follow the laundry list of
specifics identified by the IDEA, "technical defects are not
sufficient to render the IEP inappropriate if the parents and
district are aware of the relevant information." Chuhran v.
Walled Lake Consol. Schs., 839 F. Supp. 465, 471 (E.D. Mich.
1993); Indep. Sch. Dist. No. 283, St. Louis Park v. S.D., Civ.
No. 3-93-662, 1995 WL 875463, at *12 (D. Minn. Mar. 13, 1995)
(same). While Plaintiffs stress that "the Hearing Officer did not
address the substantive and procedural deficiencies in the . . .
IEP, and the school system has not addressed this issue either at
the hearing or their opposition in the instant case," once again
their claims are contradicted in part by the record. For
instance, Plaintiffs claim that the IEP provided "did not address
[A.I.'s] fine or gross motor skills," Pls.' Summ. J. at 9, and
that the Hearing Officer did not address this deficiency, Pls.'
Reply at 5. However, as the Hearing Officer noted in the H.O.D.,
The OT evaluation recommended four accommodations
that were not included in [A.I.'s] IEP, one of which
was addressed to [A.I.'s] mother. As for the three
remaining recommendations, the testimony and exhibits
revealed that [A.I.] did have access to visual aids
and was provided ample time to complete assigned
tasks. Thus, only the recommendation that [A.I.] be
provided a pencil grip was ignored. In light of the examiner's overall
conclusions that [A.I.] "demonstrates average visual
motor skills and very strong visual perceptual
skills" and did not require OT services, the MDT's
failure to prescribe the pencil grip does not render
the IEP inappropriate or amount to a denial of free
appropriate public education.
R. at 104 (H.O.D.) (also noting that one of the two greatest
areas of concern to the Hearing Officer was the MDT's "failure to
prescribe the accommodations recommended in the OT evaluation").
As such, based on the record, it is clear that the DCPS did
address A.I.'s fine or motor skills, and provided some of the
recommended solutions. Moreover, the Hearing Officer, when making
his decision, was certainly informed of these facts, and
testimony on this issue was provided. Accordingly, it is clear
that while some information might have been left out of A.I.'s
formal IEP, the Iapaluccis and the DCPS were aware of this
information and collectively incorporated it into A.I.'s program.
Given the awareness of the relevant information, the technical
violation of the IEP does not necessarily render inappropriate
the IEP provided to A.I. See Defendant I, 898 F.2d at 1191 ("We
underscore the fact that the information absent from the IEP was
nonetheless known to all the parties.").
Third, as the Sixth Circuit has emphasized, "[a]dequate
parental involvement and participation in formulating an IEP, not
adherence to the laundry list of items given in [S]ection
1401(9), appear to be the [Rowley] Court's primary concern in
requiring that procedures be strictly followed." Id. (citing
Rowley, 458 U.S. at 205-06, 102 S.Ct. 3034). The Supreme Court
reiterated this emphasis on parental involvement in Burlington
School Committee: Congress incorporated an elaborate set of what it
labeled "procedural safeguards" to insure the full
participation of the parents and proper resolution of
substantive disagreements. Section 1415(b) entitles
the parents "to examine all relevant records with
respect to the identification, evaluation, and
educational placement of the child," to obtain an
independent educational evaluation of the child, to
notice of any decision to initiate or change the
identification, evaluation, or educational placement
of the child, and to present complaints with respect
to any of the above. The parents are further entitled
to "an impartial due process hearing". . . to resolve
Burlington Sch. Comm., 471 U.S. at 368-69, 105 S.Ct. 1996; see
also id. at 368, 105 S.Ct. 1996 (noting that the "Act emphasizes
the participation of the parents in developing the child's
educational program and assessing its effectiveness"). In this
case, Plaintiffs have presented no evidence nor have they
argued that Defendants failed to ensure adequate parental
involvement in the creation of the IEP for A.I. While Plaintiffs
may disagree with the end result and may feel that certain
evidence was overlooked, they do not argue that they were denied
the opportunity to examine relevant records, present complaints,
or obtain an independent evaluation of A.I.; moreover, they do
not argue that the DCPS somehow failed to provide the proper
notice of relevant events and decisions. As such, based on this
record it appears as though Defendants ensured adequate parental
involvement the key procedural safeguard as identified by the
Supreme Court. Moreover, there is no evidence that Defendants, in
failing to meet all of the laundry list of requirements, somehow
were guilty of the kind of "procedural bad faith" that other
courts have considered determinative. See Town of Burlington v.
Dep't of Educ. of Mass., 736 F.2d 773, 783 (1st Cir. 1984)
("Burlington II"); see also Roland M., 910 F.2d at 995
(noting that "the lack of any indication of `procedural bad
faith'" on the school's part was a consideration in the
determination that the school "fulfilled the essence of its
procedural responsibilities"). Ultimately, given the fact that (1) Plaintiffs overstate the
scope of the alleged procedural deficiencies in the IEP, (2) the
remaining deficiencies were essentially "technical" and known to
the parties during the evaluation and determination process, (3)
Defendants clearly ensured adequate parental involvement, and (4)
no "procedural bad faith" took place, the Court concludes that to
the extent that the IEP provided by Janney to A.I. failed to meet
all of the laundry list of procedural requirements outlined in
the IDEA, such deficiencies are insufficient to invalidate the
IEP and compel a conclusion that A.I. was denied a FAPE. As such,
the Court shall shift from a consideration of the alleged
procedural deficiencies to an examination of both the substance
of the IEP provided to A.I. and the conclusions reached by the
Hearing Officer in the H.O.D.
B. Defendants Carried Their Burden of Proving at the Hearing
that A.I.'s IEP Was Adequate and that She Was Receiving a FAPE.
Plaintiffs' Complaint hinges on whether the Defendants carried
their burden at the hearing. The District of Columbia regulations
that apply IDEA to the District mandate that the DCPS, as the
local education agency ("LEA") under D.C. Mun. Regs. tit. 5, §
3001, carries the burden of proving "based solely upon the
evidence and testimony presented at the hearing, that the action
or proposed placement is adequate to meet the educational needs
of the student." D.C. Mun. Regs. tit. 5, § 3030.3. In addition,
as stated above, Plaintiffs in this case, as the party
challenging the Hearing Officer's determination, carry the burden
of persuading this Court that the Hearing Officer was wrong in
making his determination. Kerkam I, 862 F.2d at 887.
The Plaintiffs focus almost exclusively on the substantive
deficiencies in the 2002-2003 IEP in order to show that the
proposed IEP developed by the DCPS for the 2003-2004 school year
is inadequate, because the DCPS made no major changes to the
2002-2003 IEP for the 2003-2004 school year. Pls.' Summ. J. at 5, 9; 4/2/2004 Tr. at
121-40, 154-60 (testimony of Dr. Laura Solomon, a private
consultant, qualified to give expert opinion testimony, hired by
the Iapaluccis to review and make recommendations on the March
2003 IEP opining that the 20022-003 IEP was inadequate); R. at
147 (referred to in the transcripts as DCPS-1). Plaintiffs argue
that the testimony produced at the hearing by Defendants
supporting the IEP amounted to nothing more than "self-serving,
conclusory statements regarding A.I.'s progress at Janney . . .
[and] DCPS simply failed to address any of the procedural or
factual deficiencies contained in the IEP." Pls.' Summ. J. at 20.
The Plaintiffs also allege that Hearing Officer Banks ignored
these issues and focused solely on whether A.I. was making
progress. Pls.' Summ. J. at 13.
Importantly, while the Hearing Officer must make his
determination based on the testimony at the hearing, he is also
required to examine all of the evidence presented, including the
evidence presented in the written administrative record. Kerkam
I, 862 F.2d at 887. While the testimony provided at the hearing
by Defendants' witnesses focused largely on A.I.'s progress, the
evidence in the record supported the Hearing Officer's finding
that the Defendants met their burden in disproving the alleged
substantive deficiencies of the IEP. As such, and as detailed
below, the Court concludes that the Hearing Officer's conclusion
that A.I. had evinced meaningful educational progress during the
two month IEP period at Janney was grounded upon reasoned
findings clearly supported by the record.
The standard set out by the Supreme Court in determining
whether a child is receiving a FAPE, or the "basic floor of
opportunity," is whether the child has "access to specialized
instruction and related services which are individually designed
to provide educational benefit to the handicapped child."
Rowley, 458 U.S. at 201, 102 S.Ct. 3034. The IDEA, according to Rowley, imposes "no additional requirement that the services so
provided be sufficient to maximize each child's potential
commensurate with the opportunity provided other children." Id.
at 198, 102 S.Ct. 3034 (emphasis added); see also Kerkam I,
862 F.2d at 886 (emphasizing that Rowley rejected "[i]n at least
four places" the notion that a public school placement must
"maximize the potential of handicapped children"). Furthermore,
if a public school placement is appropriate, a school district
need not consider a private placement, "even though a private
school might be more appropriate or better able to service the
child." Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir.
1991). Rather, the analysis of the appropriateness of a public
school placement "is not comparative." Id.
It is therefore highly relevant whether A.I. was making
progress and experiencing meaningful educational benefit from the
IEP established and implemented at Janney. It is uncontested that
A.I. is benefitting from her placement at Kingsbury, and that
Kingsbury "is a better fit for [A.I.] than Janney," R. at 105
(H.O.D.). However, a court must not focus on whether the DCPS is
maximizing A.I.'s potential through its proposed placement of
A.I. at Janney under the terms of the IEP; rather, the
appropriate focus of the court's review should be on whether DCPS
is providing A.I. with an IEP that is reasonably calculated to
produce meaningful educational benefit. See Rowley,
458 U.S. at 199, 102 S.Ct. 3034; see also M.C. v. Cent. Regional Sch.
Dist., 81 F.3d 389, 393 (3d Cir. 1996) (noting that "de
minimis benefits" are insufficient to satisfy Rowley's "some
educational benefit"). Furthermore, it is irrelevant and improper
for this Court to engage in a comparison of how A.I. progressed
at Kingsbury versus her progress at Janney. The question is
whether the 2003-2004 IEP was appropriate and whether Janney
could implement the IEP in order to provide A.I. with a FAPE.
See Angevine v. Smith, 959 F.2d 292, 295-96 (D.C. Cir. 1992) (finding that the district
court reversed the decision of the Hearing Officer based largely
on an impermissible comparison of the child's experiences at the
public versus the private schools).
The Hearing Officer heard testimony from A.I.'s teachers that
while she did not master the goals of her IEP during the
relatively short period of time between the issuance of the IEP
and the Iapaluccis decision to remove A.I. from Janney, she did
make noticeable progress between March 2003 (when the IEP was
implemented) and the end of that school year roughly two months
later. R. at 103 (H.O.D.); 12/12/2003 Tr. at 64-65 (testimony of
Ms. Laura Estomin, one of A.I.'s teachers, explaining anecdotally
how A.I.'s reading, writing, and math improved after the
implementation of the IEP); R. at 159-61 (A.I.'s IEP Report
Cards, indicating progress); R. at 162-67 (A.I.'s Related
Services Progress Reports dealing with speech and language,
noting "continued improvement" and a good "prognosis" for future
improvement). Upon a review of both the written record and oral
testimony, the Hearing Officer concluded that as a result of the
made progress on her speech and language skills
throughout the 2002-2003 school year. She mastered
none of her IEP goals, but she generally made
progress on all of them. She improved from being
overwhelmed by being asked to summarize a chapter in
a book to being able to do things on her own,
including writing on her own. Her comfort level doing
math also increased over the year, and "things came a
lot faster and easier towards the end of the year."
R. at 103 (H.O.D.) (quoting testimony of Ms. Estomin).
Plaintiffs now attack the testimony offered at the hearing by
A.I.'s teachers at Janney, contending that "DCPS witnesses were
unable to point to any quantitative data demonstrating [A.I.'s]
progress [during the 2002-2003 school year]." Pls.' Facts ¶ 50.
While it is true that the vast majority of evidence presented at the hearing and relied on
by the Hearing Officer was anecdotal, the Hearing Officer based
his analysis regarding A.I.'s progress in part on four detailed
progress reports crafted during A.I.'s 2002-2003 school year at
Janney. The Hearing Officer specifically mentioned that A.I.'s
"fourth quarter progress report provided a thorough analysis of
the progress she had made during the year toward meeting her IEP
goals." R. At 104 (H.O.D.). While a review of A.I.'s "Elementary
Report Card . . . Progress Toward IEP Goals" does reveal a lack
of reference to specific test score or grade advances by A.I.,
these reports certainly contain a myriad of specifics that
substantiate the Hearing Officer's finding of progress. For
instance, these "report cards" note, inter alia, that A.I. now
(1) is able to solve word problems, (2) can add and subtract with
and without regrouping, (3) is able to use a multiplication
table, (4) is starting to memorize her multiplication tables, (5)
can tell time, (6) can identify the main idea of a chapter, (7)
can verbalize events in a chapter, and set them out in paragraph
form, (8) edit her own work, and (9) has begun working with
geometry. R. at 155-56.
In addition to the detailed testimony and specific written
evidence provided by the DCPS, indicating A.I.'s academic
progress during the 2002-2003 school year, the Hearing Officer
was also provided significant testimony detailing the opinion of
A.I.'s teachers and the IEP team that A.I.'s spoken language
skills and her language recognition would benefit from
interaction with children who were not disabled and were able to
talk to her on age-appropriate topics. 12/12/2003 Tr. at 67
(testimony of Ms. Estomin regarding whether A.I. benefitted from
being in a classroom with non-disabled children); R. at 204
(6/11/2003 IEP/MDT Meeting Minutes). The Hearing Officer was
presented with evidence by the DCPS indicating progress in this
area as well, as A.I.'s fourth quarter progress report noted
that, "[s]he has many friends in the classroom, and she seems to really enjoy her time at school." R. at 104
Importantly, it is not necessary that all benefits fall under
the strict category of "academic benefit." The decision by the
D.C. Circuit in Dawkins v. District of Columbia is instructive
on this matter. In Dawkins, the D.C. Circuit stated that the
vocational program that DCPS identified as the appropriate
placement for the child was not rendered inappropriate simply
because it did not constitute an "academic type program"; rather,
the Dawkins court emphasized that the IEP was appropriate
because it was "reasonably calculated to confer educational
benefit," and noted that the fact that there may have been a
better placement does not render inadequate the current
placement. Dawkins v. Dist. of Columbia, 872 F.2d 496 (D.C.
Cir. 1989) (table), 1989 U.S. App. LEXIS 5463, at *6-7 (D.C. Cir.
Apr. 29, 1989) (per curium). The testimony of Ms. Estomin that
A.I. was benefitting from interacting with non-disabled children
is relevant to whether A.I. was receiving educational benefit
from the placement at Janney. As such, the Hearing Officer's
consideration of this testimony, and his use of this evidence in
making his ultimate determination, was certainly supportable and
within his discretion in analyzing the relevant IEP.
In response, Plaintiffs contend that Hearing Officer Banks
disregarded the evidence presented by Plaintiffs' that
contradicts that presented by the Defendants. Plaintiffs'
contention is undermined by three important facts. First, the
Hearing Officer's H.O.D. was often quite explicit in recognizing
possible contradictions. For instance, while noting that "DCPS
offered credible testimony from Ms. Wood and Ms. Estomin that
[A.I.] was receiving educational benefit at Janney" and gaining
social acceptance, he also specifically indicated that A.I.'s
"mother refuted the purported progress, testifying that [A.I.]
had to spend an inordinate amount of time on homework, was
confused, and was socially unaccepted." R. at 104 (H.O.D.). The
Hearing Officer did consider this disparity "significant," and although
he ultimately credited the testimony of Ms. Estomin and the
analysis in A.I.'s progress reports on this issue, he did credit
the testimony of A.I.'s mother to the extent that she found that
"Kingsbury was a better fit for [A.I.] than Janney." R. at 105
(H.O.D.). Moreover, the Hearing Officer also emphasized that
"[t]he two issues of greatest concern to the hearing officer were
the MDT's failure to adopt the recommendations of Dr. Panero
[sic]*fn6 and Ms. Washington to place [A.I.] in a
self-contained setting, and its failure to prescribe the
accommodations recommended in the OT evaluation." R. at 104
(H.O.D.). While he certainly did not find for Plaintiffs on all
issues, a review of the H.O.D. indicates that he did not
"disregard" much of their evidence.
Second, Hearing Officer Banks was the trier of fact at the
due process hearing. As such, it was his responsibility to
determine how much weight to give the evidence. Upon a review, it
is impossible to support the assertion that Hearing Officer Banks
"ignored" the testimony of Plaintiffs' witnesses. It is just as
likely that Hearing Officer Banks relied heavily upon the
testimony of the DCPS witnesses because those witnesses worked
everyday with A.I. throughout the three-month implementation of
the 2002-2003 IEP and would be in the best position to gauge her
performance and determine whether the goals of the 2003-2004 IEP
were appropriate. See R. at 104 (H.O.D.) (noting that the
teachers involved "offered credible testimony"). Indeed, the
H.O.D. is replete with references by the Hearing Officer to the
evidence offered by Plaintiffs. For instance, the Hearing Officer
specifically noted that one of the two areas of "greatest
concern" for him was the MDT's "failure to adopt the
recommendations of Dr. Panero [sic] and Ms. Washington to place Petitioner in a self-contained setting."
R. at 104 (H.O.D.). The Hearing Officer correctly emphasized that
Dr. Papero clearly favored a self-contained classroom model, as
Plaintiffs requested; while considering that evidence, the
Hearing Officer also weighed the social benefits of mainstream
placement, with a high level of daily supports an option
supported by the MDT and identified by Dr. Papero as having
certain "relative benefits." R. at 104 (H.O.D.). In this area,
the Hearing Officer clearly considered Plaintiffs' evidence, but
rejected some of their conclusions, finding "[i]n light of the
progress reported by Ms. Estomin throughout the school year, the
MDT's decision to place [A.I.] in a lesser restrictive
environment was reasonable." R. at 104 (H.O.D.).
Third, Plaintiffs provide no legal support for the assertion
that Hearing Officer Banks had to offer a detailed explanation
for why he gave more weight to Defendants' evidence than to
Plaintiffs' evidence. A similar argument was made by the
plaintiffs in Schoenbach v. District of Columbia,
309 F. Supp. 2d 71 (D.D.C. 2004), and was rejected. The Schoenbach court
noted that the Hearing Officer was entitled to make such
decisions regarding the weight to give witnesses in order to come
to a conclusion. Id. at 79. There are strong policy
considerations for providing the Hearing Officer such leeway; as
the Hearing Officer as opposed to this Court has an
opportunity to hear testimony in person, examine the demeanor of
the witness and reactions of the participants, and can bring
immeasurable experience and expertise in this specialized area.
"[T]he Hearing Officer was utilizing his knowledge and experience
such that judicial deference to his expertise is especially
appropriate." Block v. Dist. of Columbia, 748 F. Supp. 891, 896
(D.D.C. 1990). Importantly, this "Court may reverse the Hearing Officer's
decision only if the Court . . . giving his decision due weight . . .
is nevertheless satisfied that [Plaintiffs] ha[ve] shown by a
preponderance of the evidence that he was wrong." Id. at 895.
"[W]hile de novo review is inappropriate, a court's authority
is not so limited that it must accord the hearing officer
deference as great as the `clearly erroneous,' `abuse of
discretion,' or `substantial evidence' standards of review. . . .
In short, the standard of review is somewhere in the
middle. . . ." Id. at 895 (citation omitted). Upon an
analysis of the H.O.D. as set forth above, the Court concludes
that Plaintiffs have not shown, by a preponderance of the
evidence, that the Hearing Officer's conclusion that A.I.
experienced progress at Janney as a result of her IEP was
incorrect. The Court finds that the Hearing Officer clearly
identified certain areas of progress, set forth his reasons for
concluding that meaningful educational progress had occurred, and
had sufficient evidence in the record upon which to make such
conclusions. The H.O.D. also indicates that the Hearing Officer
considered evidence contrary to his conclusions, and carefully
balanced the evidence presented before him. As such, the Court
finds that Plaintiffs' assertion that the Hearing Officer
improperly concluded that meaningful educational progress had
occurred is without merit. While the Court certainly sympathizes
with the conscientious efforts of the Iapaluccis to obtain the
best possible education and services for their daughter, this is
simply a case in which the DCPS met the statutory thresholds
provided for in the IDEA.*fn7 IV: CONCLUSION
For the reasons set forth above, Plaintiffs' Motion for Summary
Judgment is denied and Defendants' Motion for Summary Judgment is
granted. The Court finds that Plaintiffs are not entitled to any
reimbursement of costs incurred while A.I. has been at Kingsbury
and are not entitled to attorney's fees. An Order accompanies
this Memorandum Opinion.
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