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G.G. ex rel. Gersten v. District of Columbia

United States District Court, District of Columbia

February 20, 2013

G.G. et al., A minor, by his parents and next friends, Richard and Victoria GERSTEN, Plaintiffs,

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Michael J. Eig, Paula Amy Rosenstock, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.

Veronica A. Porter, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.





The plaintiffs here are G.G., a minor child who is eligible to receive special education services, and his parents. G.G. attended a public school in the District of Columbia through the second grade, but after he was diagnosed with Asperger Syndrome, his parents placed him in a non-public school in Maryland. His parents subsequently filed a due process complaint against the District of Columbia Public Schools (" the District" or " DCPS" ). The complaint alleged that the District had not timely evaluated or made an eligibility determination for G.G., that it had not timely created an Individualized Education Program (" IEP" ) for him, and that it had thereby denied G.G. a free and appropriate public education (" FAPE" ) under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq. During the ensuing due process hearing, a hearing officer held that the District had violated the IDEA by failing to make a timely evaluation and determination of G.G.'s eligibility for special education services. The hearing officer further held, however, that the District still had time to develop an IEP, and that it had therefore not denied G.G. a FAPE. The hearing officer also held that G.G.'s placement at the non-public school was inappropriate, as was any reimbursement for his attendance there. The hearing officer thus ordered that within ten days of receiving the hearing on determination (" HOD" ), the District would find G.G. eligible for special education and related services as a child with autism, which would trigger the creation of an IEP.

G.G. and his parents now appeal the hearing officer's decision, contending that some aspects of the holding should be vacated. The parties have filed cross-motions for summary judgment. Because the District failed to timely evaluate and make an eligibility determination for G.G., and thus effectively deprived him of a timely IEP, G.G. was denied a FAPE and the plaintiffs are entitled to partial reimbursement for his placement at a non-public

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school. The Court thus grants in part and denies in part the plaintiffs' motion, and denies the defendant's cross-motion.


G.G. is a third grade student who has been diagnosed with Asperger syndrome, severe anxiety, and other issues that place him in need of special education services. Pls.' Statement of Material Facts (" Pls.' Stmt." ) ¶¶ 1-2. His parents first grew concerned with his development when he was in preschool, when they began to notice that he was inflexible and that he had developed social problems with anger and frustration. Id. ¶ 3. G.G.'s parents met with his preschool teachers to express their concerns, and enrolled him in private therapy. Id. ¶ 4. When G.G. entered kindergarten, he attended Horace Mann Elementary School, a public school in the District of Columbia, where he remained enrolled through the second grade. Id. ¶ 5. During the first grade, G.G. demonstrated serious anxiety, including clenching his fists and teeth, continually repeating nonsensical phrases, and banging his head on his desk. Id. ¶¶ 6-7. He also had significant problems with handwriting and with interacting with his classmates. Id. ¶ 8. Despite these difficulties, by the end of the first grade, nobody from the District suggested evaluating G.G. Id. ¶ 9.

As indicated above, G.G. was enrolled in the second grade at Horace Mann during the 2010-11 school year. Id. ¶ 10. His classroom had 27 students. Id. ¶ 11. G.G.'s parents remained concerned about his behavior, noting that it had worsened from previous years. Id. ¶ 12. He became increasingly withdrawn and escaped to the restroom multiple times per week, to avoid being in the classroom. Id. ¶ 13. His parents observed that he underwent " commensurate levels of disabling anxiety," including banging his head, developing tics, and chewing on his shirt to the point that it was covered in holes and saliva.[1] Id. ¶ 14. Because of their growing concerns, G.G.'s parents requested a meeting with his school principal. Id. ¶ 15. G.G.'s parents met with her and two others from the school during the spring of 2011, where the school staff did not offer any insight as to what was happening to G.G., but where everyone agreed to seek out a neuropsychological examination. Id. ¶ 17. G.G. underwent this evaluation in March of 2011 at Children's National Medical Center, where he was diagnosed with Asperger Syndrome. Id. ¶ 19.

During the summer of 2011, G.G.'s parents began researching programs that address this condition, and discovered the Model Asperger Program (" MAP" ) at Ivymount, a non-public school in Maryland. Id. ¶ 23. The MAP is targeted toward working with students who have Asperger Syndrome. Id. ¶ 24. On June 13, 2011, G.G.'s parents sent a letter through counsel to Horace Mann's principal, requesting that a meeting be scheduled to develop an IEP for their son. Id. ¶ 25. On June 21, 2011, the principal responded, requesting that they come in for an informal meeting. Id. ¶ 26. G.G.'s parents agreed to attend the ...

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