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B.D. v. District of Columbia

United States District Court, District of Columbia

December 2, 2014

B.D., a minor, by and through his Parents and next friends, Anne and Brantley Davis, et al., Plaintiffs,

For B.D., a minor, by and through his parents and next friends, Anne and Brantley Davis, ANNE DAVIS, as parent and next friend of B.D. and in her own right, BRANTLEY DAVIS, as parent and next friend of B.D., and in his own right, Plaintiffs: Diana Marjorie Savit, LEAD ATTORNEY, SAVIT & SZYMKOWICZ, LLP, Bethesda, MD; Karen S. Smith, LEAD ATTORNEY, LAW OFFICE OF KAREN S. SMITH, Kensington, MD.



RICHARD J. LEON, United States District Judge.

[Dkt. ##38, 41]

Plaintiffs Anne and Brantley Davis--as parents and next friends of their son, B.D.--(together " plaintiffs") commenced this action against the District of Columbia (" defendant" or " the District") pursuant to the Individuals with Disabilities Education Act (" IDEA"), 20 U.S.C. § 1400 et seq., on June 7, 2012, seeking review and enforcement of an administrative due process hearing officer determination (" HOD"), as well as related attorney's fees and costs. See Compl. [Dkt. #1].[1] Now before the Court are the parties' cross-motions for summary judgment. See Pls.' Mot. Summ. J. [Dkt. #38]; Def.'s Cross-Mot. Summ. J. [Dkt. #41]. Upon consideration of the parties' pleadings, relevant law, and the entire record in this case, the Court GRANTS, in part, and DENIES, in part, plaintiffs' Motion for Summary Judgment, and GRANTS, in part, and DENIES, in part, defendant's Cross-Motion for Summary Judgment.


B.D. is a disabled student entitled to special education under the IDEA. B.D.'s disabilities include specific learning disabilities, attention deficit hyperactivity disorder, various physical health problems, gross and fine motor coordination issues, behavioral problems, sensory dysregulation and inadequate social skills. See Plaintiffs' Statement of Material Facts as to Which No Genuine Issue Exists (" Pls.' Facts") ¶ ¶ 2, 5 [Dkt. #38-1]; Def.'s Mot. Summ. J. at 4-5. B.D. attended the Kingsbury Day School (" Kingsbury") from 2007-2009. See id. ¶ ¶ 3, 6. On June 9, 2009, however, a new individualized education plan (" IEP") was developed for B.D., and it was determined that Kingsbury could no longer meet B.D.'s special education needs in accordance with the updated IEP. See id. ¶ 7; Administrative Record (" AR") at 560 [Dkt. ##31-33], From October 21, 2009 until August 29, 2011, B.D. received in-home instruction and therapy provided through District of Columbia Public Schools (" DCPS"). See Pls.' Facts ¶ 10.

At the beginning of the 2011 school-year, B.D. attended the Katherine Thomas School (" KTS") for a 30-day trial, which ended unsuccessfully in October, 2011. See id. ¶ ¶ 12, 13; AR at 183. On October 11, 2011, DCPS held an IEP meeting and developed a new IEP requiring that B.D. receive 26.6 hours per week of specialized instruction, two hours per week of speech-language therapy, three hours per week of occupational therapy, and two hours per week of behavioral support services. See AR at 294. The IEP team recommended B.D.'s placement at The Children's Guild--a private, full-time special education school in Maryland. See Pls.' Facts ¶ ¶ 26, 30. The Davises rejected this offer and continued to provide in-home tutoring and occupational therapy at their own expense. See Pls.' Facts ¶ ¶ 30, 61-64.

Following evaluations on October 6-10, 2011, Gladys M. Sweeney--a licensed psychologist hired by plaintiffs--completed a psychological assessment of B.D. and recommended evaluating and treating B.D. at a therapeutic in-patient treatment facility. See AR 278-79. At an IEP meeting held on November 29, 2011, DCPS agreed to refer B.D. to the Department of Mental Health (" DMH") Psychiatric Residential Treatment Facility (" PRTF") for assessments. See AR at 490-92.

On January 9, 2012 plaintiffs filed a due process complaint seeking relief for DCPS's alleged failure to provide B.D. with a free appropriate public education (" FAPE"), and challenging its suggested placement of B.D. at The Children's Guild as inappropriate. See Pls.' Facts ¶ 82; AR 409-414. The hearing officer issued his HOD on March 9, 2012, finding that B.D. was denied a FAPE from August -- October 2011, because DCPS had not provided an appropriate IEP, nor an appropriate educational setting. See AR at 28. Moreover, the hearing officer found that B.D. was also denied a FAPE from October 2011 to 2012, because the IEP in place was outdated, it did not rely on sufficient baseline or evaluative data, and because the proposed school would employ behavioral tactics similar to those determined to be ineffective at B.D.'s previous school. See AR at 31.

The HOD ordered defendant to reimburse plaintiffs for all educational services provided by their Occupational Therapist and Tutor from October 11, 2011 " through the present, " and to provide B.D. with occupational therapy for five hours a week for three months. See AR at 39. The HOD further ordered defendant to immediately reconvene B.D.'s IEP team to determine which assessments were appropriate, and that such assessments were to be completed within sixty days of the issuance of the HOD. See id. The IEP team was ordered to convene within ten days of the assessments' completion. See id.

DMH's PRTF review committee reviewed B.D. pursuant to DCPS's March 2012 referral, and determined that B.D. required placement in residential treatment facility. See Pls.' Facts ¶ 105. Plaintiffs independently sought and obtained B.D.'s acceptance at Wediko Children's Center, an in-patient facility in New Hampshire that could accommodate B.D.'s psychological and education needs. See id. at ¶ ¶ 112-13. Due to B.D.'s continued behavioral deterioration, however, Wediko withdrew its acceptance. See id. ¶ 115. After determining that no public school program could meet B.D.'s needs, the Office of the State Superintendent of Education (" OSSE") began searching for a residential treatment facility. See id. ¶ 158. Three residential treatment facilities expressed interest in B.D. See id. ¶ 159. Defendant contends that one of the residential treatment facilities--the Eagleton School in Massachusetts (" Eagleton")--is appropriate for B.D., can implement his IEP, and has offered acceptance to B.D. See Def.'s Cross-Mot. Summ. J. at 25; id., Ex. 3 (April 4, 2014 Eagleton School acceptance letter). Plaintiffs, however, contest Eagleton's appropriateness for B.D. in a related case. See B.D. v. District of Columbia, Civ. No. 13-01223-RJL (D.D.C. filed Aug. 8, 2013) (" B.D. II ).


Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the evidence in the record demonstrates that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When evaluating cross motions for summary judgment, " the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Select Specialty Hosp. --Bloomington, Inc. v. Sebelius, 774 F.Supp.2d 332, 338 (D.D.C. 2011) (citation omitted). The court must accept as true the evidence of, and draw " all justifiable inferences" in favor of the party opposing summary judgment. Anderson v. ...

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