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Z.B. v. District of Columbia

United States District Court, District of Columbia

August 24, 2016

Z.B., et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge.

         Plaintiffs, a minor child (“Z.B.”) and her parents, bring this action against defendant District of Columbia (“the District”). The gravamen of their complaint is that the District of Columbia Public Schools (“DCPS”) failed to provide Z.B. with a Free Appropriate Public Education (“FAPE”), as required by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., because DCPS failed to place Z.B. in a full-time special education program. Based on this alleged violation of the IDEA, plaintiffs argue that they acted appropriately in unilaterally deciding to move their child out of the public elementary school that she had attended to a private school some two months after the first Individualized Education Program (“IEP”) was prepared in June 2014, and second, that the January 2015 IEP erroneously concluded that she did not need a full-time special education program, but that the special education services available at DCPS were sufficient to meet her needs. The issues before the Court are: did defendant violate the IDEA by providing deficient IEPs that erroneously concluded that Z.B.'s special education needs could be met within DCPS, and if so, should the DCPS be ordered to reimburse plaintiffs for the costs incurred in sending Z.B. to a specialized private day school for the 2014-2015 and 2015-2016 school years. Based on the administrative record, the Court concludes that plaintiffs are not entitled to the reimbursement that they seek.

         BACKGROUND

         I. IDEA FRAMEWORK

         “Under the Individuals with Disabilities Education Act (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)).[1]“To guarantee that no child with a disability misses out on the education the Act promises, and to ensure, in turn, that the education offered is ‘appropriate, ' [the] IDEA requires that school officials develop a comprehensive strategy, known as an ‘individualized education program, ' or IEP, tailored to the student's unique needs.” Id. at 63 (quoting § 1414(d)(1)(A)).[2] School districts are required to “have an IEP in place for each student with a disability ‘[a]t the beginning of each school year.'” Id. at 63 (quoting § 1414(d)(2)(A)).

         In developing an IEP for a particular child, a school's IEP team must “(A) review existing evaluation data on the child, including--(i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related services providers . . . .” 20 U.S.C.A. § 1414(c)(1). A completed IEP must include: “a statement of the child's present levels of academic achievement and functional performance”; “a statement of measurable annual goals, including academic and functional goals”; and “a statement of the special education[3] and related services[4] . . . to be provided to the child, or on behalf of the child.” 20 U.S.C. § 1414(d)(1)(A). In addition, the IDEA requires that all services be provided in the “least restrictive environment” appropriate for the student. 20 U.S.C. § 1412(a)(5)(A).[5]

         “‘If no suitable public school is available, the [school system] must pay the costs of sending the child to an appropriate private school.'” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (quoting Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir. 1991)). In addition, “[a]lthough Congress envisioned that children with disabilities would normally be educated in ‘the regular public schools or in private schools chosen jointly by school officials and parents, ' it provided that parents who believe that their child's public school system failed to offer a free appropriate public education-either because the child's IEP was inadequate or because school officials never even developed one-may choose to enroll the child in a private school that serves her educational needs.” Leggett, 793 F.3d at 63 (quoting Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993)). A unilateral decision to remove a child from public school does not preclude reimbursement, but parents who take that step “do so at their own financial risk.” Sch. Comm. of Town of Burlington. v. Dep't of Educ., 471 U.S. 359, 374 (1985); Florence Cty., 510 U.S. at 15. “[I]f the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents would be barred from obtaining reimbursement” because the student would have been offered a FAPE. Sch. Comm., 471 U.S. at 374; see also 20 U.S.C. § 1412(10)(C)(ii)); 34 C.F.R. § 104.33(c)(4). Moreover, even if the student was denied a FAPE, parents must establish that the private school placement is “proper under the [IDEA].” Florence Cty., 510 U.S. at 15; see Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009). Once those two hurdles have been cleared, the reviewing court must determine if “the equities weigh in favor of reimbursement-that is, the parents did not otherwise act unreasonabl[y].” Leggett, 793 F.3d at 67; see also Sch. Comm., 471 U.S. at 374 (“equitable considerations are relevant in fashioning relief”).

         II. FACTUAL BACKGROUND

         Starting in pre-kindergarten, Z.B. attended Hearst Elementary School (“Hearst”), a D.C. public school. Hearst was not Z.B.'s in-boundary school, but the school her parents selected through the DCPS school lottery. In March 2013, towards the end of second grade, Z.B.'s parents brought her to Children's National Medical Center (“Children's) for a psychiatric evaluation due to concerns about her “inability to focus.” (AR 76.) She was diagnosed with “attention deficit hyperactivity disorder combined type.” (AR 77.) Shortly thereafter, on May 1, 2013, Z.B.'s therapist, Katherine Rettke, a licensed clinical social worker at Children's, asked DCPS to consider adopting a “[Section] 504 plan”[6] in order to help Z.B. function better at school. (AR 81.) She suggested a number of possible interventions that Z.B.'s teachers could use in order to “reinforce on task behaviors and allow for frequent breaks to reduce some of her hyperactive symptoms.” (AR 81.) She also opined that “IEP testing may also be indicated in the future in order to rule out any learning disabilities if improvement is not seen with 504 supports.” (AR 81-82.) In May 2013, Hearst developed a 504 plan for Z.B., which provided that she would receive preferential seating in class, be tested in a distraction-free environment, and receive additional time on tests. (AR 118, 222.) In June 2013, Z.B.'s parents approved the 504 plan, and it was implemented when Z.B. started third grade in August 2014. (AR 85, 222.)

         During the spring of Z.B.'s third grade year, due to ongoing social and academic issues, Z.B.'s parents arranged for a neuropsychological evaluation of Z.B. by a licensed psychologist at Children's, Jacqueline Sanz, Ph.D. (AR 117.) Dr. Sanz evaluated Z.B. on April 14, 2014, and provided a final report to Z.B.'s parents on May 12, 2014. (AR 117.) Dr. Sanz reached the following diagnostic conclusions: (1) that “inattention, impulsivity, and executive dysfunction” were “concerns” and that Z.B. met the “DMS-V diagnostic criteria for Attention Deficit/Hyperactivity Disorder - Combined Presentation”; (2) that “math skills and written expression” were “areas of weakness” and that her “problems [we]re consistent with a DSM-V diagnosis of a Specific Learning Disorder, with Impairment in Mathematics, and a Specific Learning Disorder, with Impairment in Written Expression”; and (3) that “reports of social-emotional development indicated problems with anxiety, depressed mood, oppositional behavior, and social skills.”[7] (AR 119-21.) As summarized by Dr. Sanz:

Z.B.'s neurocognitive profile presents a number of risks. In particular, Z.B.'s weaknesses in attention and executive functioning place her at increased risk for academic difficulties, especially as demands continue to rise in the coming years. This is especially true in fourth and fifth grade, when demands on executive skills increase dramatically, while structures and supports found in earlier elementary classrooms are faded away. . . . In other words, without additional support, Z.B. is at risk for falling behind grade level in multiple areas. Lastly, Z.B.'s anxiety and mood dysregulation, in combination with executive dysfunction, leaves her susceptible to becoming quickly overwhelmed and may further contribute to academic challenges. This combination of anxiety, mood dysregulation, and executive dysfunction may also contribute to her ability to engage socially with others, and has the potential to impact Z.B.'s self-esteem. Despite these risks, Z.B. has a number of strengths, and with additional supports is expected to do quite well.

(AR 120-21 (emphasis added).) Accordingly, Dr. Sanz recommended (1) that Z.B. be “provid[ed] accommodations via an Individualized Education Plan (IEP) as a student with a Specific Learning Disability” and to “[c]onsider an additional secondary coding of Other Health Impairment”; (2) that “[w]ith respect to placement, Z.B. should receive specialized, small group instruction for core subjects (e.g., math, language arts)” and “[f]or other subjects, Z.B. should be placed in a classroom with a small teacher to student ratio and increased supports for her symptoms of ADHD, and to accommodate for the impact of her learning disorder in these settings (for example, co-taught classes)”; (3) that Z.B. should “receive specialized instruction to help with organizational skills and task approach for all academic classes”; (4) that Z.B. “should receive an occupational therapy evaluation and individual occupational therapy to address letter reversals and weaknesses in written expression; (5) that Z.B. “should receive a speech-language assessment to examine phonological awareness given challenges in written expression”; and (6) that Z.B. “should meet with the school psychologist regularly as an additional support for socioemotional needs within the school context.” (AR 121.) Dr. Sanz also recommended that Z.B.'s parents consider: (1) meeting with a child psychiatrist to discuss medication treatment of ADHD; (2) cognitive-behavioral therapy to help with anxiety, mood, inattention and impulsivity; and (3) an executive-skills coach or special education tutoring to address her impairment in math and written expression, as well as skills affected by ADHD, possibly through the Lab School. (AR 123.)

         Z.B.'s parents provided DCPS with the Sanz Report and requested that Z.B. be evaluated for an IEP. (AR 131, 144; 5/4/2016 Tr. at 254.) Sara Tick, the school psychologist at Hearst, was the person responsible for “discuss[ing] and apply[ing] the results from [the Sanz Report] to the eligibility of special education services.” (5/5/15 Tr. at 35.) An “initial eligibility meeting” took place on May 27, 2014, and DCPS found Z.B. eligible for special education services as an individual with the disability “Other Health Impairment / Attention Deficit Disorder.”[8] (AR 146.)

         On June 9, 2014, Z.B.'s DCPS IEP team and Z.B.'s parents met to develop Z.B.'s initial IEP.[9] (AR 412.) The IEP team included Tick; Sharon Oliveros, Hearst's special education teacher; Elizabeth Wendt, the school counselor, acting in the role of social worker; Hearst's then-principal; and two of Z.B.'s third grade teachers. During the meeting, Z.B.'s parents were informed that an IEP is a “fluid” document -- that things could always be added or taken away. (5/4/2016 Tr. at 254.) The initial IEP (the “June 2014 IEP”) identified three “areas of concern” (“academic-mathematics, ” “academic-written expression, ” and “emotional, social and behavioral development”) and authorized a total of 8.5 hours of “special education and related services, ” consisting of 7.5 hours per week of academic support and one hour per week of behavioral support services.[10] (AR 414-18.) As six of the service hours were to be “outside the general education setting, ” the IEP team was required to affirm, in the “least restrictive environment” section of the IEP, that Z.B. had “needs that require removal from general education, ” specifically that “[t]he nature and/or severity of the disability must be such that the student can only make progress on IEP goals and objectives by being removed from the general education classroom to receive these services.” (AR 419.) Implementation of the June 2014 IEP started the next day, but because Z.B. missed the last week of school to attend a summer camp, it was only in effect for four days before the school year ended. (See 5/5/15 Tr. at 41.)

         Z.B.'s parents did not express any disagreement with the June 2014 IEP at the meeting when it was adopted or request any changes thereafter. (See 5/4/15 Tr. at 262.) However, within a week or so after the meeting, they began to investigate alternative options, and they ultimately decided to apply to the Lab School, a private day school in D.C. devoted to educating students with learning disabilities. (See 5/4/15 Tr. at 255.) According to Z.B.'s father, they requested the recommendations they would need from Z.B.'s teachers in order to apply to the Lab School before the end of June and, at the same time, also told the principal and her administrative assistant that they were going to apply to the Lab School and that they would be asking for funding.[11] (See AR at 164-65; 5/4/15 Tr. at 255-56, 265, 271-72.) The next communication between Z.B.'s parents and Hearst took place on August 28, 2014, when Z.B.'s mother notified Hearst in a handwritten note that Z.B. was withdrawing from DCPS and would be attending the Lab School in 2014-15. (AR 428.)

         Z.B. began attending the Lab School in August 2014. In October 2014, the Lab School produced its own IEP for Z.B. (the “Lab School IEP”). The Lab School's IEP differed from the June 2014 IEP in two material respects: (1) it added “reading” and “academic behavior/executive functioning” as two additional “areas of concern”; and (2) it called for 35 hours per week of specialized instruction and related services to be provided as part of a “self-contained, intensive, individualized, remedial special education program” such as provided by the Lab School. The Lab School's IEP concluded that this was the “least restrictive environment” appropriate for Z.B. because her “pervasive learning disabilities impede acquisition of academic skills and the ability to learn and complete assignments in the general education curriculum.” (AR 203, 216.)

         In November 2014, while Z.B. was attending the Lab School, DCPS arranged for two additional evaluations. First, Anita Hughes, a DCPS licensed clinical social worker, conducted a “functional behavior assessment” (“FBA”), the general purpose of which is “to look at behaviors that are interfering with the student's ability to be fully successful.” (5/5/15 Tr. at 285-86.) Specifically as to Z.B., the FBA was to further examine her “poor social skills, distractibility, and mood dysregulation, ” which the June 2014 IEP had identified as an area of concern.[12] (AR 429.) Z.B.'s parents and teachers told Hughes that Z.B. was making “good academic progress” at the Lab School, and Z.B.'s parents also reported that Z.B.'s “level of anxiety ha[d] significantly diminished.” (AR 224, 226.) However, Hughes found that although Z.B.'s problem behaviors were “not as severe as in the past, ” they had “escalated since the start of the current year” and “resulted in poor peer relationships and sometimes disrupt[ed] the academic program.” (AR 224, 226, 240.) Hughes further found that these behaviors “affect [Z.B.'s] ability to access the general education curriculum on a consistent basis and can be disruptive for her peers.” Hughes recommended that the Lab School “develop and implement a comprehensive behavior intervention plan” (AR 440), but her report expressed no opinion as to whether Z.B.'s behavioral issues required placement in a full-time special education program. DCPS also arranged for an “occupational therapy [“OT”] assessment” to evaluate Z.B.'s “current fine motor, visual motor, visual perceptual and sensory processing skills” and to determine “her need for school-based occupational therapy.” (AR 231.) The OT assessment report described Z.B. as having various deficits that were “having an impact on her ability to consistently produce written work with good letter formation, spacing and line alignment.” (AR 235.)

         After receiving the results of the FBA and the OT assessment, the DCPS IEP team drafted a revised IEP and then met, on December 12, 2014, for its “annual review” of Z.B.'s IEP. (AR 243.) In addition to Tick, Oliveros, Wendt, Z.B.'s third grade general education teacher from Hearst, and Z.B.'s parents, all of whom were part of the June 2014 IEP meeting, the December meeting was attended by Hughes, Dwayne Lawrence, the OT evaluator, Kali McFarland, the new case manager from DCPS's central office, Claudia deSilva, another special education teacher from Hearst, and Z.B.'s parents' attorney. (AR 243.) After an initial discussion, it was agreed that the final IEP meeting would be deferred until after the parents' attorney submitted additional information from the Lab School. (See 5/28/15 Tr. at 15.)

         On December 19, 2014, plaintiffs' attorney sent DCPS their “input for the redrafting of the proposed IEP” (AR 259), which included notes from Dr. Jennifer Durham, the curriculum and technology coordinator at the Lab School, and a request that the revised IEP include additional information from the Sanz Report, Z.B.'s current teacher evaluations, Z.B.'s final third grade report card from Hearst, the FBA, and the OT assessment, and that it “include a section in the goals area on executive functioning.” (AR 259-61.)

         When the DCPS IEP team met again, on January 20, 2015 (AR 472), [13] DCPS had further revised the IEP to (1) add “reading” and “motor skills/physical development” as “areas of concern”; (2) adjust some of the goals; (3) slightly increase the overall hours of special education; and (4) in the section for “other classroom aids and services, ” state that Z.B. “requires a precise system for organizing her school work and tracking assignments, such as color-coded folders/notebooks and help writing assignments in an agenda.” (AR 276.) According to the official meeting notes, plaintiffs were satisfied with the additional revisions to the IEP with two exceptions: (1) they wanted the IEP to include express executive functioning goals; and (2) they believed that Z.B. required full-time special education, i.e., placement at the Lab School or another comparable private school. (AR 488-91.) DCPS explained that it generally did not treat executive functioning as a separate “area of concern” (AR 489), but agreed to add executive functioning goals to the “emotional, social and behavioral” area of concern. (AR 490.) On the placement issue, there was an extensive discussion, with Dr. Durham from the Lab School participating by phone and presenting her view that Z.B. required small groups for learning because in large groups she struggles with behavior and the inability to complete independent work, whereas Tick and Oliveros continued to be of the opinion that Z.B. could be educated within DCPS. (AR 489-91.) Ultimately, plaintiffs' attorney indicated that unless the placement decision was changed to provide Z.B. with full-time special education, the parents would reject the IEP. (AR 490-91.) One other issue that was discussed was, if Z.B. were placed in DCPS, whether Hearst would be an appropriate “location of services” given the troubles Z.B. had had there in the past. However, Z.B.'s father indicated that he did not consider their local school an appropriate alternative because it was a “failing school.” (AR 491.)

         The final IEP that DCPS produced after this meeting rejected Z.B.'s parents' request to find that Z.B.'s disabilities required full-time special education, but it provided for a total of 11.5 hours of special education and related services, including 10 hours per weeks of academic support, 1 hour per week of behavioral support services, and 30 minutes per week of occupational therapy. (AR 484.) A total of 10.5 hours were to be outside the general education setting, (AR 484.)

         III. PROCEDURAL BACKGROUND

         On March 10, 2015, Z.B.'s parents filed a “due process complaint”[14] against DCPS, claiming that both the June 2014 and January 2015 IEPs failed to provide Z.B. with a FAPE, and therefore, that they were entitled to reimbursement for Z.B.'s attendance at the Lab School for the 2014-15 school year and an order that DCPS place and fund Z.B.'s attendance there for the 2015-16 school year. (AR 4-16.) The IEP team and Z.B.'s parents met in a “resolution session”[15] on March 24, 2015. As a result of that meeting, DCPS agreed to alter the January 2015 IEP to add express executive functioning goals, which it did on April 20, 2015. (AR 495, 509.) The remaining issues were the subject of the “due process hearing” that took place on May 4, 5, and 28, 2015.[16]

         At the hearing, plaintiffs presented testimony from four witnesses: Z.B.'s father testified about Z.B.'s experiences at Hearst and at the Lab School; Dr. Sanz, an expert in “neuropsychology, ” testified about inconsistencies between her report and the June 2014 IEP; Dr. Durham, an expert in “programming for and instruction of learning disabled and other-health impaired students, ” testified about her knowledge of Z.B. from the Lab School and gave her opinion that both the June 2014 and January 2015 IEPs were not appropriate; and Christine Chang, an expert in “OT services, ” testified that Z.B.'s need for occupational therapy was probably longstanding. DCPS presented testimony from five witnesses: Tick, an expert in “school psychology, ” testified about her role in developing the June 2014 and January 2015 IEPs and gave her opinion that both were appropriate; Oliveros, an expert in “special education programming, special education instruction, and determining special education services in the least restrictive environment, ” testified that both the IEPs were appropriate; Hughes, an expert in “clinical social work in a public school setting with emphasis on behavioral support, ” testified about the FBA she conducted of Z.B.; Kali McFarland, who took over as the DCPS case manager in the fall of 2014, testified about the events leading up to and the development of the January 2015 IEP; and Wendt, the social worker from Hearst, testified about the development of both the June 2014 and January 2015 IEPs.

         The hearing officer issued her decision (“HOD”) on June 9, 2015, ruling that plaintiffs had failed to prove: (1) that DCPS denied Z.B. a FAPE by failing to propose an appropriate program for her in the June 2014 and January 2015 IEPs; (2) that DCPS denied Z.B. a FAPE by failing to propose an appropriate placement for Z.B. for the 2014-15 school year, specifically by failing to designate a full-time, separate day school as the “least restrictive environment” appropriate for her; and (3) that DCPS denied Z.B. a FAPE by failing to propose an appropriate location of services, specifically by inappropriately selecting Hearst as the location of services, despite Z.B.'s previous negative experiences at the location that impacted her social and academic well-being.

         On July 21, 2015, plaintiffs filed suit against the District of Columbia, [17] asking the Court to vacate the HOD, and find that both the June 2014 and January 2015 IEPs failed to provide Z.B. with a FAPE, either due to the placement decision or program content, [18] and to order DCPS to reimburse them for the cost of Z.B.'s attendance at the Lab School.[19] Relying on the existing administrative record, both parties have moved for summary judgment. (See Pls.' Mot. for Summary Judgment, Sept. 25, 2016 [ECF No. 14]; Def.'s Cross-Mot. for Summary Judgment, Nov. 30, 2015 [ECF No. 15].)

         ANALYSIS

         The parties' cross-motions for summary judgment present the following issues: (1) did the placement decision in either the June 2014 IEP or January 2015 IEP, specifically the decision to place Z.B. in DCPS and not in a private full-time special education setting such as the Lab School, result in an IEP that failed to provide Z.B. with a FAPE; (2) if not, were there substantive flaws in the program content of either IEP sufficient to result in a legally “inadequate” or “inappropriate” IEP that failed to provide Z.B. with a FAPE; and (3) if ...


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