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District of Columbia v. Masucci

United States District Court, District of Columbia

January 30, 2014

DISTRICT OF COLUMBIA, Plaintiff/Counter-Defendant,
v.
GREGORY MASUCCI, et al., Defendants/Counter-Claimants. MIKEISHA BLACKMAN, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

On May 29, 2013, a hearing officer in the District of Columbia's Office of the State Superintendent of Education ordered the District of Columbia Public Schools ("DCPS") to provide special needs student M.M. with one year of compensatory education services at a private school for children with autism. Convinced that the hearing officer's determination ("HOD") was erroneous, the District appealed the HOD in this Court and refused to comply with the HOD pending appeal. Concerned that M.M. would lose his spot at Ivymount School, a private school that met the requirements specified in the HOD, M.M.'s parents enrolled M.M. at Ivymount and began paying the school's tuition and fees themselves. Using the procedural mechanism available in a separate, related class action, Blackman v. District of Columbia , Civil Action No. 97-1629, the parents also filed a motion for a preliminary injunction order directing DCPS to place and fund M.M. at Ivymount, and to reimburse the parents for expenses incurred. Several weeks later, the District moved in Civil Action No. 13-1008 for a stay of the HOD pending this appeal.

Upon review of the parties' papers and the relevant legal authorities, the Court finds that the District has established that a prospective stay of the HOD is warranted. The Court also finds, however, that the District had an obligation to comply with the HOD - i.e., by placing M.M. at a private school meeting the criteria specified in the HOD - unless and until the District was granted a stay by this Court. The District therefore will be directed to reimburse M.M.'s parents for tuition and related expenses incurred between July 8, 2013 and February 14, 2014.[1]

I. BACKGROUND

M.M. is a five-year-old child residing with his parents, Gregory Masucci and Maya Weschler, in the District of Columbia. R&R 2. M.M. is autistic and has Attention Deficit Hyperactivity Disorder, and he is disabled within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. ยงยง 1400 et seq. Id . In an effort to address M.M.'s special needs, DCPS placed M.M. in an autism program at Tyler Elementary School ("Tyler"), a public school. Id . M.M.'s parents objected to several features of this placement, and on March 8, 2013, M.M.'s parents filed an administrative due process complaint with DCPS, alleging various violations of the IDEA.

In their due process complaint, the parents alleged that DCPS had not properly implemented M.M.'s individualized education program ("IEP") during part of the 2012-13 school year. Due Process Compl. 12 (AR 16). They also alleged that the IEPs developed in November 2012 and February 2013 were inappropriate and procedurally defective. Id . The parents believed that these problems had caused delays in M.M.'s verbal, social, and behavioral skills. Id. at 7, 11 (AR 11, 15). The parents requested, as a remedy for these alleged violations of the IDEA, that DCPS be ordered to place and fund M.M. at a separate day school for children with autism. Id. at 12 (AR 16).

The parents' concerns were considered at an administrative due process hearing held on May 8 and May 9, 2013. HOD 1 (AR 898); see also May 8 Tr.; May 9 Tr. On May 28, 2013, the hearing officer issued his decision. HOD 1 (AR 898). The hearing officer found that M.M.'s parents had not established that M.M.'s IEPs were inappropriate or improperly developed, or that the educational services provided at Tyler as of May 2013 were inappropriate. Id. at 19-27 (AR 916-24). The hearing officer concluded, however, that DCPS had failed to properly implement M.M.'s IEP during the first several months of the 2012-2013 school year, thus denying M.M. a free and appropriate public education ("FAPE"), required by statute, during that time period. Specifically, the hearing officer found that Tyler did not provide a special education teacher in M.M.'s classroom for several months, id. at 24-26 (AR 921-23), and failed to collect Applied Behavior Analysis ("ABA") data, as required by M.M.'s IEP. Id . The hearing officer also found that the Tyler staff had corrected these problems by the date of the hearing, but he ordered DCPS to provide compensatory education to M.M., in order to remedy the harm resulting from the missed services. Id. at 29 (AR 926). The hearing officer directed DCPS to place M.M. for one year at a private school that met the following criteria: a school that primarily provided services to students with autism; that used ABA methodology; that provided one-to-one instruction; and that held a valid certificate of approval from the Office of the State Superintendent of Education. Id . The hearing officer also directed DCPS to convene a placement meeting within 60 calendar days of that order, so that the District and the parents could determine an appropriate private school for M.M. Id.

On May 30, 2013, only a few days after this HOD was issued, M.M.'s parents notified DCPS that M.M. had been accepted at Ivymount, a private school in a Maryland suburb of Washington, D.C., which met the criteria set forth in the HOD. R&R 3. The parents requested that DCPS issued a Prior Written Notice to Ivymount and indicated that they were willing to waive their right to a placement meeting. R&R 3-4.

The following week, on June 7, 2013, DCPS advised M.M.'s parents that it intended to appeal the HOD and would not be implementing the HOD pending the appeal. See Email exchange between Kimberly Glassman and Maya Washington, PI Mot., Ex. 4 at 1. And indeed, DCPS did not take any steps in June 2013 to comply with the HOD. R&R 5. Fearing that M.M. would lose his spot at Ivymount, M.M.'s parents enrolled him at Ivymount themselves and began paying his tuition there. R&R 4; see PI Mot., Ex. 5-3. The parents then filed a motion for a preliminary injunction in Blackman v. District of Columbia , Civil Action No. 97-1629, seeking reimbursement for tuition and costs, as well as placement and funding at Ivymount for the 2013-14 school year. PI Mot. 23.[2]

The Court referred the parents' motion for preliminary injunction to Special Master Elise Baach. Minute Order dated July 1, 2013.[3] On July 2, 2013, the District filed its appeal of the May 29, 2013 HOD, Civil Action No. 13-1008.

The District did not immediately seek a stay of the HOD. Instead, it has been the District's position that implementation of the HOD is automatically stayed during the pendency of the appeal. PI Opp'n 16-17; Stay Mot. 8-13. According to the District, the HOD directs DCPS to change M.M.'s "current educational placement" in a manner inconsistent with his IEP. PI Opp'n 16-17. Under such circumstances, asserts the District, DCPS was required to maintain M.M. at Tyler under the "stay-put" provision of the IDEA. Id.

In the preliminary injunction proceedings before the Special Master, the Special Master found this argument to be unpersuasive and contrary to all legal precedent, R&R 8-9, and, as is discussed infra at 12-15, there is no doubt she was correct. Assessing whether the parents had met their traditional four-part test for preliminary injunctions, the Special Master found that the parents were substantially likely to establish that the District had violated the IDEA by failing to comply with the HOD. Id. at 12-13. The Special Master noted, however, that irreparable harm to M.M. was not clear. Id. at 14. Because the services ordered in the HOD were compensatory education services intended to make up for IDEA violations that occurred in the past, "one could reasonably argue that the compensation for services missed... could be provided at some point down the line with no harm to M.M." Id . The Special Master therefore recommended that the District be permitted to file a stay motion prior to the Court's ruling on injunctive relief. Id. at 16.

The District subsequently filed objections to the Report and Recommendations, but it also filed a motion to stay the HOD pending the outcome of its appeal. The parents oppose the District's stay motion, and urge ...


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