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Q.C-C. v. District of Columbia

United States District Court, District of Columbia

February 16, 2016

Q.C-C., et al. Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

Re Document Nos.: 9, 11

Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment

MEMORANDUM OPINION

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs R.C. and M.C. brought this action on behalf of themselves and their daughter Q.C-C.[1] under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the “IDEA”) against Defendant the District of Columbia (the “District”). Plaintiffs appeal from an administrative decision that, in relevant part, found that the District of Columbia Public Schools (“DCPS”) denied Q.C-C. a free appropriate public education as required by the IDEA but declined to order the relief requested by Plaintiffs. Before the Court are the parties’ cross-motions for summary judgment. See Pls.’ Mot. Summ. J., ECF No. 9; Def.’s Opp’n Pls.’ Mot. Summ. J. & Def.’s Cross-Mot. Summ. J., ECF No. 11. For the reasons provided below, the Court will grant Plaintiffs’ motion and deny the District’s motion.

II. BACKGROUND

The Court begins by providing an overview of the framework of the IDEA before turning to the factual background and procedural history of this case.

A. Statutory Framework

Under the IDEA, “every child with a disability in this country is entitled to a ‘free appropriate public education, ’ or FAPE.” Leggett v. District of Columbia, 793 F.3d 59, 62 (D.C. Cir. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A)). The “primary purpose” of the Act is “‘to ensure that all children with disabilities have available to them a[n] . . . education that emphasizes special education and related services designed to . . . prepare them for further education, employment, and independent living.’” Id. (quoting 20 U.S.C. § 1400(d)(1)(A)) (alteration in original). “A free appropriate public education entitles ‘each child with a disability’ to an ‘individualized education program’ that is tailored to meet his or her unique needs.” Henry v. District of Columbia, 750 F.Supp.2d 94, 96 (D.D.C. 2010) (quoting 20 U.S.C. §§ 1414(d)(1)(A)-(2)(A)).

The individualized education program (the “IEP”) is the “primary vehicle” for implementing the IDEA. Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006). The IEP is “[p]repared at meetings between a representative of the local school district, the child’s teacher, the parents or guardians, and, whenever appropriate, the disabled child.” Id. It “sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.” Id.

When the parents of a student with a disability are dissatisfied with a school district or agency’s “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child, ” 20 U.S.C. § 1415(b)(6), the IDEA entitles them to present their arguments in an “impartial due process hearing, ” id. § 1415(f). Any party aggrieved by the hearing officer’s determination may bring a civil action in state or federal court. See Id. § 1415(i)(2). The IDEA also contains a “stay put” provision, which provides that during the pendency of any of these proceedings, the student must remain in his or her current educational placement unless otherwise agreed. See Id. § 1415(j).

B. Factual Background

Q.C-C. is a minor living in the District of Columbia with her parents, who adopted her from Guatemala when she was an infant. See AR 379. Q.C-C. has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”), a phonological disorder, Mixed Receptive-Expressive Language Disorder, a reading disorder, and a disorder of written expression. See AR 384; AR 750.

From kindergarten through the fourth grade, Q.C-C. attended Oyster-Adams Bilingual School (“Oyster-Adams”), a public school within the DCPS system. See AR 383; AR 750. In March and April 2010, while Q.C-C. was in the third grade at Oyster-Adams, DCPS conducted a psychological evaluation of Q.C-C. and determined that she was eligible for special education and related services pursuant to the IDEA as a student with a disability classification of “Other Health Impairment.” See AR 262; AR 750-51. As a result, Q.C-C. received some limited additional support during the remainder of the school year. See AR 751. Q.C-C.’s fourth grade year at Oyster-Adams, the 2010-2011 school year, was “rough” for her both academically and socially. AR 751. She struggled in all but one of her classes, was bullied, and lost friends and self-esteem. See id.

Q.C-C.’s parents, concerned about her difficulties in fourth grade, engaged the services of a special education consultant, Dr. Laura Solomon. See id.; Tr. Day 1 at 37:8-22, ECF No. 8-8; AR 261-75 (Diagnostic Educational Evaluation by Dr. Solomon dated Feb. 13, 2011). In February 2011, Dr. Solomon observed Q.C-C. in classes at Oyster-Adams, reviewed her educational records, conducted tests, and interviewed her parents. See AR 263-74; AR 751. Dr. Solomon concluded that Q.C-C. “requires a more intensive program than she is currently receiving.” AR 274; see also AR 751. Noting that Q.C-C. had ADHD, “significant dyslexia” and “multiple” other learning disabilities, Dr. Solomon opined that Q.C-C. needed, among other things, classes with a smaller teacher-to-student ratio, counseling, and intervention from an occupational therapist and a speech language pathologist, along with systematic instruction in strategies for attention and executive functioning. AR 274; see also AR 751. Dr. Solomon recommended that Q.C-C.’s parents consider two schools for Q.C-C., one of which was The Lab School of Washington (“Lab”), a private full-time special education day school. See AR 274; AR 751.

Following Dr. Solomon’s recommendation, Q.C-C.’s parents unilaterally enrolled Q.C-C. at Lab for the 2011-2012 school year, Q.C-C.’s fifth grade year. See AR 751. In January 2012, Q.C-C.’s parents filed a due process complaint against DCPS alleging violations of the IDEA and, in June 2012, a hearing officer determined that DCPS denied Q.C-C. a FAPE by failing to invite Q.C-C.’s parents to an IEP meeting in January 2012, by developing an IEP that was not individually tailored to meet Q.C-C.’s needs, and by failing to provide an appropriate educational placement for the second half of the 2011-2012 school year. See AR 39-74 (Hearing Officer Determination dated June 28, 2012). Finding that Lab was “appropriate” under the IDEA, the hearing officer ordered DCPS to reimburse Q.C-C.’s parents for all costs of Q.C-C.’s attendance at Lab from January 31, 2012 through August 31, 2012.[2] See AR 71. Q.C-C. has continued her education at Lab since the 2011-2012 school year with DCPS continuing to fund her placement. See AR 751.

In October 2013, during Q.C-C.’s seventh grade year at Lab, Q.C-C.’s parents filed another due process complaint against DCPS, claiming that, despite DCPS’s continued funding of Q.C-C.’s placement at Lab, DCPS had failed to propose a program or placement for Q.C-C. See AR 752. Q.C-C.’s parents and DCPS settled that complaint in December 2013. See id.; AR 550-52 (settlement agreement signed Dec. 5, 2013). As part of the settlement, DCPS agreed to continue paying for Q.C-C.’s placement at Lab through June 19, 2014, evaluate Q.C-C., review and revise her IEP at a meeting before June 19, 2014, and determine a location of service following the meeting. See AR 551. Q.C-C.’s parents agreed to visit the proposed location of service and retained the right to challenge the proposed IEP and placement. See id.

Pursuant to the settlement, DCPS conducted several reviews and evaluations in April and May of 2014. In April 2014, a DCPS school psychologist conducted an evaluation by reviewing Q.C-C.’s school records, observing Q.C-C. in class for 35 minutes, and interviewing one of Q.C-C.’s teachers and prepared a report which recommended that Q.C-C. continue to be considered eligible for special education services under the “Other Health Impairment” designation. See AR 554-60. A DCPS speech language pathologist, Judith Edgehill, also conducted an assessment by reviewing records, including test results and questionnaire responses by Q.C-C.’s teachers, observing Q.C-C. in one class, and concluded that Q.C-C. did not have a distinct Speech and/or Language Impairment as a “primary disabling condition” but that DCPS should consider whether Q.C-C. was eligible to receive “oral communication related services.” AR 561-79 (emphasis omitted). A DCPS occupational therapist conducted an assessment by reviewing records, observing Q.C-C. in class, and conducting interviews and concluded that Q.C-C.’s “decreased muscle tone, endurance and postural stability . . . . combined with inattentiveness and ineffective sensory processing affect her ability to keep pace and fully engage in daily activities.” AR 580- 88. A DCPS social worker also prepared a report based on records, a 35-minute classroom observation, and interviews and concluded that Q.C-C. “is a vulnerable child who requires significant supports to be successful in accessing her academic program and maintaining emotional stability.” AR 589-96. Alexandra Lemus, Q.C-C.’s fourth-grade special education reading teacher from Oyster-Adams, also observed Q.C-C. for 30 minutes during one of her classes at Lab. See AR 622; AR 753; Tr. Day 2 at 48:20-52:14, ECF No. 8-9.

On April 7, 2014, Lab held an annual meeting to discuss Q.C-C.’s progress and need for support and to revise the IEP for her continued education at Lab. See AR 327; AR 752-53. DCPS was invited to this meeting but did not attend. See AR 752. The 2014 Lab IEP called for 31.25 hours of specialized instruction and 3.75 hours of related services per week, which included individual and group speech and language therapy, occupational therapy, and psychological treatment. See AR 327; AR 752-53.

On June 2, 2014, a DCPS team, which included Ms. Lemus, convened an IEP meeting at Oyster-Adams with Q.C-C.’s parents and staff from Lab, and DCPS ultimately drafted a new proposed IEP. See AR 409; AR 421-39 (DCPS IEP dated June 2, 2014); AR 753. DCPS cited the 2014 Lab IEP throughout its IEP, including, for example, the Lab IEP’s statement that Q.C- C. “struggles to interact with her peers and has some social skills difficulties” and that “[t]his impacts her overall self-esteem which in turn impacts her ability to function in the general education curriculum, ” AR 432, and the Lab staff agreed with the goals set forth in the DCPS IEP, see AR 754.

A sharp disagreement, however, emerged between DCPS and Q.C-C.’s parents and the Lab staff regarding the amount of special education that Q.C-C. requires. See AR 753 (“There is just simply a disagreement between DCPS and [Lab] and the student’s parents about what it takes to educate the student.”). In stark contrast with the Lab IEP, DCPS prescribed only five hours of specialized instruction per week with only one of those hours outside the general education, as well as various related services in occupational therapy, behavioral support, and speech and language pathology with some of those services taking place outside the general education setting. See AR 436; AR 753. DCPS justified this proposal by determining that “the previous DCPS IEP hours remained appropriate, ” because Q.C-C. made adequate progress at Oyster-Adams four years earlier. AR 641; see also AR 648-49 (“The IEP Team felt that [Q.C-C.] needs 5 hours of service, as she had on her IEP when she was last at Oyster-Adams Bilingual School because [Q.C-C.] made over two years of progress in Reading that year, and she is Average on the Woodcock Johnson Tests of Achievement in Reading and Math. The lawyer for the family disagreed and argued that [Q.C-C.] needs a full time placement. The IEP with 5 hours was developed by the IEP Team at Oyster-Adams Bilingual School.”).

Three days after the DCPS IEP meeting, DCPS informed Q.C-C.’s parents by letter that DCPS had selected Alice Deal Middle School (“Deal”), a public school within the DCPS system, as the location of services for implementing the IEP. See AR 650-51. On June 12, 2014, Q.C-C.’s parents, through counsel, formally notified DCPS that they disagreed with and rejected DCPS’s IEP, stating that Q.C-C. “requires significantly more special education services than proposed by the DCPS IEP team, ” and stating their intention to maintain Q.C-C.’s placement at Lab and seek “ongoing public funding for that placement.” AR 652. Pursuant to the December 2013 settlement, Q.C-C.’s parents also visited Deal and met with the school’s assistant principal to discuss how Q.C-C.’s IEP would be implemented. See Tr. Day 1 at 183:7-184:7. Based on their observations and conversations with Deal’s assistant principal, Q.C-C.’s parents found Deal to be inappropriate for Q.C-C. for a variety of reasons, including the apparent lack of a special education teacher outside math and reading, the large school size, and the lack of support for Q.C-C.’s difficulties with “executive functioning.” See Id. at 184:1-16; id. at 189:3-190:13.

C. Administrative Proceeding and the Hearing Officer’s Determination

On August 25, 2014, Plaintiffs filed a due process complaint against DCPS, claiming that DCPS denied Q.C-C. a FAPE in two separate ways: first, by failing to propose an appropriate IEP, specifically by proposing an insufficient amount of specialized instruction; and second, by failing to provide Q.C-C.’s parents with “meaningful participation in the IEP process” by unilaterally selecting Deal as the location of service. AR 4-11. Plaintiffs did not challenge the goals contained in the IEP or any components of the IEP other than the prescribed amount of specialized instruction outside general education. See AR 750 n.5. As a remedy, Plaintiffs sought, in part, an order requiring DCPS to continue to fund Q.C-C.’s placement at Lab. The Hearing Officer ordered DCPS to continue to fund Q.C-C.’s placement at Lab during the pendency of the complaint process pursuant to the “stay put” provision of the IDEA. See Order on Motion for Stay Put Protections, AR 242- 48.

A hearing on the due process complaint was held on December 4 and December 5 of 2014 before Hearing Officer Coles B. Ruff. See AR 747. At the hearing, Plaintiffs presented testimony from their educational consultant, Dr. Solomon, designated as an expert in “special education programming and placement, ” as well as one of Q.C-C.’s parents and three Deal staff members, all of whom were designated as experts in their respective fields of speech language pathology, occupational therapy, and “special education programming and placement.” AR 768. DCPS presented testimony from an expert speech language pathologist, Ms. Lemus, and the assistant principal of Deal. See AR 768-69. The Hearing Officer issued his determination on December 25, 2014. See AR 747-70.[3]

With respect to the first issue presented, the Hearing Officer concluded that DCPS denied Q.C-C. a FAPE by failing to propose an appropriate program or placement. See AR 760. In reaching this conclusion, he stated that “[t]he overwhelming evidence demonstrates, despite DCPS witnesses’ testimony to the contrary, ” that Q.C-C. has a wide variety of health concerns that “impact her significantly throughout all classes.” AR 762. He found that the Lab staff members “credibly testified that [Q.C-C.] ...


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