United States District Court, District of Columbia
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiff Victoria Dobbins brought this action on behalf of her minor child A.D., seeking review of an administrative due process hearing decision issued pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Compl. [Dkt. # 1]. The Hearing Office agreed with plaintiff that the District of Columbia Public Schools (“DCPS”) denied A.D. her rights under the IDEA when it proposed to place her in a regular public high school. Id. ¶¶ 8, 18-19. But plaintiff alleges that the Hearing Officer erred in declining to impose the specific remedy she requested: an order that DCPS fund A.D.’s immediate placement at Solstice Residential School (“Solstice”) in Utah. Id. ¶¶ 21-22, 27. Plaintiff sued, and the parties have both moved for summary judgment. Pl.’s Mot. for Summ. J. [Dkt. # 23] (“Pl.’s Mot.”); Def.’s Opp. to Pl.’s Mot. & Cross-Mot. for Summ. J. [Dkt. # 25] (“Def.’s Mot.”).
The Court finds that the Hearing Officer did not err as a matter of law when he determined, based on the record before him at that time, that D.C. Code § 38-2561.03(b)(2) precluded him from ordering the District to fund A.D.’s placement at a school lacking a Certificate of Approval from the Office of the State Superintendent of Education (“OSSE”). It further concludes that the record is not sufficiently developed to permit this Court to order that placement now. So plaintiff’s motion for summary judgment will be denied and defendant’s cross-motion will be granted.
A.D. is a seventeen year old teenager who has struggled with mental health problems, including self-injurious behaviors, and has experienced difficulties with attendance and participation in school. Admin. R. [Dkt. # 21] (“AR”) 0463-64, 0488. In November 2013, plaintiff, through counsel, requested that DCPS evaluate A.D. to determine whether she was eligible for special education services. AR 0464. In June 2014, a special education eligibility committee determined that A.D. was eligible for special education and related services, and an Individualized Education Program (“IEP”) was developed. AR 0467. It provided for “two hours per week of Specialized Instruction in the General Education setting and 90 minutes per month of Behavioral Support Services.” AR 0467. Plaintiff did not consent to the IEP, and it was not implemented. AR 0467.
On September 22, 2014, plaintiff filed a due process complaint requesting that an administrative hearing be held pursuant to IDEA to challenge the appropriateness of the June 2014 IEP and the school placement DCPS had identified. AR 0468. Specifically, plaintiff alleged that the IEP developed by DCPS failed to provide A.D. with a free appropriate public education (“FAPE”) because it did not offer A.D. the full-time residential placement she required. AR 0460.
The due process hearing was held on November 17, 2014. AR 0461. Plaintiff testified and presented a number of witnesses and exhibits, and DCPS also called witnesses. AR 0461. Plaintiff requested that A.D. be placed in a full-time residential treatment facility, and she specifically asked that DCPS be ordered to fund A.D.’s placement at Solstice. AR 0462-63, 0488. DCPS stood by the June 2014 IEP, offering the same two hours per week of Specialized Instruction and ninety minutes per month of Behavioral Support Services in a public school setting. AR 0468.
The Hearing Officer issued his determination on December 6, 2014. AR 0460-0488. He concluded that DCPS violated the IDEA when it failed to ensure that A.D. was evaluated for eligibility for special education services on a timely basis, AR 0471, and he found that the June 2014 IEP was not reasonably calculated to serve A.D.’s educational needs. AR 0473. He also determined that A.D. required residential placement, and not placement in a public school environment as DCPS had proposed. AR 0480-84. But in the “Remedy” section of his decision, the Hearing Officer denied plaintiff’s request that he order DCPS to fund A.D.’s placement at Solstice at that time. AR 0484-86. He cited D.C. Code § 38-2561.03(b)(2), noting that:
A hearing officer may make a placement in a nonpublic special education school or program that lacks a valid Certificate of Approval from the [State Education Agency] only if the hearing officer has determined that:
(A) There is no public school or program able to provide the student with a free appropriate public education; and
(B) There is no nonpublic special education school or program with a valid Certificate of Approval that meets the requirements of subsection (a)(2) of this section.
AR 0484, citing D.C. Code § 38-2561.03(b)(2).
The Hearing Officer pointed out that Solstice, the boarding school plaintiff had selected for A.D., “does not have, and has never applied for a Certificate of Approval” from the Office of the State Superintendent of Education. AR 0485. While plaintiff had proffered expert testimony about the insufficiency of any available alternatives, the Hearing Officer was not persuaded that he could make the necessary statutory finding that none of the OSSE-approved nonpublic special education schools would be able to implement a full-time residential IEP to meet A.D.’s needs, and he denied plaintiff’s request that DCPS fund a placement at Solstice. AR 0485-86. He ordered DCPS to convene A.D.’s IEP team within twenty business days and revise A.D.’s IEP to provide for “immediate placement at an appropriate, full-time, residential special education program that serves students with emotional disabilities, ” at DCPS’s expense. AR 0486-87.
On January 11, 2015, plaintiff filed this lawsuit challenging the Hearing Officer’s denial of her request that the District place A.D. at Solstice, and she filed several motions seeking emergency injunctive relief on January 21, 2015. Compl.; Pl.’s Mot. for TRO [Dkt. # 4]; Pl.’s Mot. for Prelim. Inj. [Dkt. # 5]; Pl.’s Mot. for Stay Put Inj. [Dkt. # 6]. On January 28, 2015, after hearing from the parties, the Court denied the motions for injunctive relief on the grounds that plaintiff had not shown that A.D. - who by then had been offered a residential placement by DCPS but had been enrolled by plaintiff at Solstice instead - would be irreparably harmed if the Court did not require DCPS to place A.D. at Solstice. Min. Entry (Jan. 28, 2015); Tr. of Mots. Hr’g (Jan 28, 2015) [Dkt. # 19] (“Hr’g Tr.”) 4:4-8:5, 20:19-22. The Court also found that plaintiff was not likely to succeed on the merits of her challenge to the validity of the Hearing Officer’s decision. Hr’g Tr. 4:21-25, 13:9-17:20.
Plaintiff filed her motion for summary judgment on June 8, 2015, and defendant filed its opposition and cross-motion on July 20, 2015. Pl.’s Mot.; Mem. of P. & A. in Supp. of Pl.’s Mot. [Dkt. # 23-1] (“Pl.’s Mem.”); Def.’s Mot. Plaintiff filed a reply in support of her motion on August 24, 2015, Pl.’s Reply to Def.’s Mot. [Dkt. # 26] (“Pl.’s Reply”), and ...