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S.B., et al v. District of Columbia

May 6, 2011

S.B., ET AL.,
PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiffs Robert Boorstin and S.B., his son, bring this action under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., challenging a hearing officer's limitation of their reimbursement to only certain related services as part of S.B.'s Individualized Education Program. Plaintiffs contend that the hearing officer's failure to reimburse them for all related services operates as a denial of a free and appropriate education (FAPE) required by the IDEA. The parties have now filed cross motions for summary judgment.

I.Background

A. The IDEA Statutory Framework

The purpose of the IDEA is "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 . . . ." 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. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving funding under the IDEA, school districts are required to adopt procedures to ensure appropriate educational placement of disabled students. See20 U.S.C. § 1413. 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" or "individualized education program team." § 1414. Such a team consists of the parents and teachers of the disabled student, as well as other educational specialists, who meet and confer in a collaborative process to determine how best to accommodate the needs of the student and provide a FAPE. See § 1414(d)(1)(B).

School districts must also develop a comprehensive plan, known as an individualized education program (IEP), for meeting the special educational needs of each disabled student. See§ 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of the IDEA and "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204. "If no suitable public school is available, the school system must pay the costs of sending the child to an appropriate private school." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations omitted). The IDEA requires IEPs to include, among other things:

[1] A statement of the child's present levels of academic achievement and functional performance, including . . . how the child's disability affects the child's involvement and progress in the general education curriculum; [2] a statement of measurable annual goals, including academic and functional goals, designed to . . . meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum . . . [and] meet each of the child's other educational needs that result from the child's disability; [3] a description of how the child's progress toward meeting the[se] annual goals . . . will be measured; [and 4] a statement of the special education and related services and supplementary aids and services . . . to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child. § 1414(d)(1)(A)(i).

The IDEA requires that children with disabilities be placed in the "least restrictive environment" so that they can be educated in an integrated setting with children who are not disabled to the maximum extent appropriate. See§ 1412(a)(5)(A). The IDEA also guarantees parents of disabled children the opportunity to participate in the evaluation and placement process. See§§ 1414(f), 1415(b)(1). Parents who object to their child's "identification, evaluation, or educational placement" are entitled to an impartial due process hearing, see§§ 1415(b)(6), (f)(1), at which they have a "right to be accompanied and advised by counsel" and a "right to present evidence and confront, cross-examine, and compel the attendance of witnesses." § 1415(h). A qualified impartial hearing officer conducts the due process hearing in accordance with the Act. 5 D.C. Mun. Regs. § 3030.1.

Parents "aggrieved by" a hearing officer's findings and decision may bring a civil action in either state or federal court. § 1415(i)(2); 5 D.C. Mun. Regs. § 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. § 1415(i)(2)(C)(iii).

B. S.B.'s Education

S.B. is a twelve-year-old child who has been diagnosed with Asperger Syndrome and Developmental Delay. Admin. Record at 4 (Hearing Officer's Aug. 9, 2009, Decision). He currently attends the McLean School, a private school in Potomac, Maryland. Id. at 3 In 2004, S.B. was determined to be eligible to receive special education and related services under the IDEA. Id. at 4. An IEP was created for S.B. that year while he was attending the Kingsbury School in Washington, D.C. Under his IEP, S.B. was prescribed the following services per week: (1) 24 hours of specialized instruction; (2) 90 minutes of psychological counseling; (3) 2 hours and 15 minutes of speech therapy; and (4) 90 minutes of occupational therapy. Id.

The following year -- during the 2005-06 school year -- S.B. attended the Lowell School in Washington. Id. On February 16, 2006, Plaintiff Boorstin filed a due process complaint against DCPS seeking funding for S.B. at Lowell. Id. The due process complaint listed several related services for which he sought reimbursement, including occupational therapy, speech/language therapy, psychological counseling, and developmental optometry. Id. (These differed slightly from the services he received under his Kingsbury IEP.) Rather than proceed to a due process hearing, Boorstin and DCPS entered into a settlement on March 2, 2006. Under the terms of the agreement, DCPS agreed to "[p]lace and fund [S.B.] at the Lowell School for the 2005-06 school year, with all related services specified in the [February 16, 2006] Due Process Hearing Request." Id. at 101 (Settlement Agreement). DCPS then issued a "Prior Notice" on April 3, 2006, documenting S.B.'s change in schools from Kingsbury to Lowell. Id. at 4. At the end of the school year, DCPS reimbursed Plaintiff Boorstin for tuition at Lowell and the related services spelled out in the settlement agreement for that school year. Id.

S.B. continued to attend Lowell for the next two school years and to receive the agreed upon related services, except for developmental optometry services, which his parents decided were no longer necessary. Id. at 5-6. Plaintiff Boorstin also paid for S.B. to receive additional related services -- e.g., neuropsychological assessment, psychopharmacology and counseling, cognitive evaluation, and tutoring -- even though these additional related services were not provided for in the settlement agreement. Id. at 6. During this period, DCPS never met or observed S.B. at Lowell, nor did the school system contact the school to check on S.B.'s progress. Id. at 5. S.B.'s IEP was not updated, and there were no new evaluations or testing for him during this time either. Id. The school system, moreover, did not reimburse Plaintiff Boorstin for tuition or any of the related services, and he did not seek reimbursement until July 16, 2008. Id. At that time, he sent a letter to DCPS requesting reimbursement, but DCPS never responded. Id.

Plaintiff Boorstin voluntarily moved S.B. to the McLean School for the 2008-09 school year. Id. at 5. He then filed a second due process complaint against DCPS on February 16, 2009, charging that DCPS had failed to monitor S.B.'s placement and violated his rights under the IDEA. Id. He sought reimbursement for S.B.'s tuition and "related services" at Lowell and McLean in connection with his complaint. Id. at 14.

On April 29, 2009, a hearing officer convened a hearing and considered testimony and evidence from the parties. Several weeks later, on May 21, 2009, the hearing officer issued his decision finding that Lowell continued to be S.B.'s placement and that DCPS was, therefore, required to reimburse Plaintiff Boorstin for tuition paid for the 2006-07 and 2007-08 school years. Id. at 6. Relying upon the parties' settlement agreement, the hearing officer found:

The parent had every reason to believe that [Lowell] was the ongoing placement and that DCPS understood that to be the case. DCPS itself formally placed the student at [Lowell] in its Prior Notice. Never having received notice that the DCPS designated placement was anything other than [Lowell], the parent was legally and logically entitled to rely upon the Prior Notice in his understanding that [Lowell] continued to be the student's IDEA placement.

Id. at 111. Because Plaintiff had voluntarily moved S.B. to McLean for the 2008-2009 school year, however, he was not entitled to reimbursement for costs at that school. Id. at 112. The order did not include or address any of the related services. Id. at 6.

Following that decision, Plaintiffs sought e-mail clarification as to whether the May 21 decision included reimbursement for the related services. Id. In that e-mail, however, Plaintiffs appear to have limited their request to just those services included in the settlement agreement. Id. at 72. Plaintiffs' counsel wrote, "Even if we had not specifically referenced his related services that were accepted and paid for by DCPS in 2005-2006, he would have been entitled to their continued funding under 'stay put,' but we need not go there in view of our referencing their provision in our hearing request." Id. (emphasis added). The hearing officer informed the parties that the May 21 decision covered tuition, but did not further clarify his decision. Id. at 6. ...


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