MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
What
are the responsibilities of the District of Columbia Public
Schools in fulfilling the express terms of a student's
Individualized Education Program? The Individuals with
Disabilities Education Act assures parents that the public
school system will teach their child with a learning
disability, even if it means putting the child in a private
school where his needs can be met. In this case, the District
of Columbia Public Schools admits that it failed to provide
the full number of hours of specialized education J.W. needed
for two years; beyond that, however, an independent hearing
officer decided that J.W.'s social maladjustment, not his
disability, accounted for his refusals to attend classes
regularly or to obtain behavioral counseling. A limited
remedy was awarded. J.W.'s mother, Charon Wade, appeals,
arguing that the hearing officer blamed her child for his own
disability.
I.
FACTS
Ms.
Wade appeals from a Hearing Officer Determination (HOD) that
partly rejected her claim that the District of Columbia
Public Schools (DCPS) violated the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400,
et seq., by failing to provide her son J.W. with a
free appropriate public education (FAPE). IDEA provides that
any party aggrieved by an HOD may seek redress through a
civil action in state or federal court. Id. at
§ 1415(i)(2). Ms. Wade asks the Court to find that J.W.
was denied a FAPE in all the ways alleged in the Complaint
and to order DCPS to fund appropriate compensatory education
for any denial of FAPE not already remedied by the HOD. She
also seeks any other relief deemed equitable. See
Notice of Withdrawal (Notice) [Dkt. 15] at 2.[1]
J.W. is
a District of Columbia resident. HOD, AR at 6.[2] He has been
receiving special education services since 2009, according to
the Special Education Data System. Final Eligibility
Determination Report (FEDR), AR at 383. He has been diagnosed
with Specific Learning Disability (SLD), which impacts his
skills in math, written expression, and reading, as well as
his emotional/social/behavioral development. 3/31/14 IEP, AR
at 46-49; FEDR, AR at 374. His diagnosis means that J.W. is
considered a “child with a disability” under
IDEA, 34 C.F.R. § 300.8(c)(10)(i), and that he is
entitled to an IEP. Id. § 300.323. In relevant
part, his school placement history is as follows:
• Friendship Public Charter School, Woodridge Middle -
8th Grade (2013-2014 school year);
• Cesar Chavez Public Charter School, Capitol Hill
Campus - 9th Grade (2014-2015 school year);
• Dunbar Senior High School - 10th Grade
(2015-2016 school year), 11th Grade (2016-2017
school year), 12th Grade (2017-2018 school
year).[3]
3/31/14 IEP, AR at 40-54; 10/16/14 Multidisciplinary Team
(MDT) Meeting Notes, AR at 55-86; 1/12/15 IEP Annual Progress
Report, AR at 87-100; 12/6/16 Dunbar HS Report Card-Grade 11,
AR at 364; Hr'g Tr., C. Wade, AR at 654.
While
J.W. was enrolled at Friendship Public Charter School, he
received 27.5 hours of specialized instruction and 1 hour of
behavioral support services per week, as required by his IEP.
HOD, AR at 6; 3/31/14 IEP, AR at 40-49. As part of his
transition from middle school to high school, Ms. Wade agreed
to waive the requirements of J.W.'s IEP so that he could
attend Cesar Chavez Public Charter School-Capitol Hill
(Chavez). 10/16/14 Parent Letter of Informed Placement
Decision, AR at 60. Chavez agreed to provide J.W. with 18
hours per week of specialized instruction inside a general
education setting, and 1 hour per week of “related
services” outside the general education setting.
Id. Ms. Wade placed J.W. at Chavez with the
understanding that the school would “do all that they
could and pull out all the possible things that they could
have to work with [J.W.] as best as possible.” Hr'g
Tr., C. Wade, AR at 654-55. It was understood that if J.W.
did not make progress at Chavez, the IEP team would reconvene
to discuss a new location of services. 10/16/14 MDT Meeting
Notes, AR at 57.
On
March 17, 2015, after meeting numerous times during the
school year, J.W.'s IEP Team[4] concluded that J.W. required
27.5 hours of specialized instruction outside general
education each week and 240 minutes (4 hours) per month of
behavioral support services as he was “not making
adequate progress in the general education setting.”
3/17/15 Multidisciplinary Team Meeting Notes, AR at 122;
see also 3/17/15 IEP, AR at 101-18. It was
determined that he “required small group instruction as
he continued to struggle to master grade level material and
standards, because of task avoidance, low frustration
tolerance and improper classroom behaviors.” 3/17/15
IEP, AR at 110.
On
March 20, 2015, DCPS engaged in a least restrictive
environment assessment (LRE), in which they assessed J.W.
with the aim of finding a placement to meet his needs. LRE
Classroom Observation Tool, AR at 129-135. DCPS also
completed a Functional Behavior Assessment (FBA) of J.W. on
April 17, 2015 and the IEP team reviewed it at a meeting on
May 5, 2015. The FBA stated that J.W. “does better in
small group settings where a teacher can work with him
individually to ensure he understands the material.”
FBA, AR at 136-39.
Ms.
Wade received a letter from DCPS on July 14, 2015 stating,
“while no IEP revisions are being proposed as part of
this letter, Dunbar H[igh] S[chool] is the DCPS school that
has the programming in place to [meet J.W.'s] IEP
needs.” Location of Services (LOS) letter, AR at 144.
It further explained, “[J.W.'s] location is
changing for the 2015-2016 School Year because Dunbar HS is
the closest school with [the] required specialized program
and has space available in the Specific Learning Support
classroom.” Id. The parties disagree about
whether this location of services letter was presented to Ms.
Wade as an option or a requirement. However, it is undisputed
that J.W. started at Dunbar High School in the fall of 2015.
Id. According to DCPS documentation, the Specific
Learning Support (SLS) program is for students with learning
disabilities or challenges “where behavior is not the
primary impediment to access the general education
curriculum.” See Special Education Programs
& Resources Guide for Families, School Year 2017-2018
(Resource Guide) at 18, available at
https://dcps.dc.gov/sites/
default/files/dc/sites/dcps/publication/attachments/Family%20Programs%20and%20Resources%
20Guide%2017-180.pdf (last visited August 13,
2018).[5] The Resource Guide explains various terms
and policies that are relevant here:
• Most DCPS students can be served in the general
education (regular) classroom, in a Learning Lab or in a
full-time classroom.
• “Inside of general education” means that
the specialized instruction and related services for students
with disabilities will be served while they are with their
peers without disabilities in the general classroom.
• “Outside of general education” refers to
all specialized instruction and services that are provided to
a class or grouping made up entirely of students with
disabilities. Students with less than 20 hours of specialized
instruction outside of general education in their IEPs
typically receive services in a Learning Lab, also referred
to as a resource room or pull-out services.
• DCPS's full-time, district-wide classrooms provide
specialized support to students with 20 or more hours of
specialized instruction outside of general education in their
IEP. Our full-time classrooms are designed to give more
support to students with disabilities who have a high level
of need.
See Resource Guide at 3.
From
the fall of 2015 when he was placed at Dunbar until January
17, 2017, J.W.'s IEPs specified that he needed 27.5 hours
per week of specialized instruction outside of general
education. See 9/29/15 IEP, AR at 162-78; 10/2/15
Amended IEP, AR at 179-96; 3/18/16 IEP, AR at 282-303;
5/18/16 Amended IEP, AR at 315-37. “An IEP with 27.5
hours of specialized instruction outside of general education
requires all classes, including academic and non-academic
such as electives, to be with only special education
students.” Compl. [Dkt. 1] ¶ 29.[6] J.W.'s IEP
was revised on January 17, 2017, to reduce J.W.'s
specialized education requirement to 20 hours per week
because that was all Dunbar had provided and could provide.
1/17/17 IEP, AR at 390-407. Ms. Wade testified that she was
unaware that J.W.'s IEP had been changed until a later
meeting at the school, and that she did not agree to the
change. HOD, AR at 8; Hr'g Tr., C. Wade, AR at 684-85.
On
March 13, 2017, Ms. Wade filed a due process complaint under
IDEA challenging the reduction in special education hours for
J.W. and his placement at Dunbar. Due Process Complaint
Notice, AR at 409-24. DCPS responded on March 29, 2017. DCPS
Response to Due Process Complaint, AR at 434-42. The school
held a resolution session on March 29, 2017, but the parties
were unable to resolve the matter. 3/29/17 Resolution Period
Disposition Form (Resolution Form), AR at 443-47. The matter
was then presented at a hearing before a hearing officer on
May 22 and 24, 2017. The hearing officer rendered the Hearing
Officer Determination on June 10, 2017. HOD, AR at 3-23.
The HOD
reached three “conclusions of law”: (1) Ms. Wade
established a prima facie case that DCPS had denied
J.W. a FAPE by failing to provide an appropriate educational
placement for him in 2015-2016 and 2016-2017, when his IEPs
required 27.5 hours per week outside of general education;
(2) however, Ms. Wade had not shown that DCPS failed to
implement J.W.'s IEP prior to January 2017 because the
“proportion of what Student was actually missing did
not rise to the level of materiality” and “any
failure to provide services was de minimis”;
and (3) Ms. Wade made a prima facie showing that
J.W.'s January 17, 2017 IEP denied him a FAPE but DCPS
...