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Z.B. v. The District of Columbia

United States District Court, District of Columbia

April 25, 2019

Z.B., a minor, by and through his mother, Sylvia Sanchez, Plaintiff
v.
THE DISTRICT OF COLUMBIA, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         This case is about a disagreement concerning the change in school for a child, Z.B., with autism. Z.B. was attending the nonpublic Kingsbury Day School, but the District of Columbia Public Schools (“DCPS”) determined that the proper location of services to implement Z.B.'s Individualized Education Program (“IEP”) was another nonpublic school, Kennedy Krieger. Plaintiff has filed this lawsuit claiming that DCPS's decision to change Z.B.'s school was an illegal change in placement and denied him a free and appropriate public education (“FAPE”).

         Presently before the Court are Plaintiff's [29] Motion for Summary Judgment and Default Judgment[1] and Defendant DCPS's [30] Cross-Motion for Summary Judgment. Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court DENIES Plaintiff's Motion and GRANTS Defendant's Motion. The Court concludes that Z.B.'s change in schools to Kennedy Krieger was a change in location of services rather than an illegal change in educational placement. The Court further concludes that Plaintiff's inability to fully participate in Z.B's change in location of services to Kennedy Krieger did not deny Z.B. a FAPE.

         I. BACKGROUND

         Plaintiff is the mother of Z.B., a minor child found eligible to receive special education and related services under the IDEA as a student with a disability. See 20 U.S.C. § 1400 et. seq. Defendant is a municipal corporation that receives federal funds pursuant to the IDEA in exchange for providing a free and appropriate public education (“FAPE”) and is obligated to comply with the IDEA. See 20 U.S.C. § 1411, 1412(a)(1)(A).

         A. Statutory Background

         The IDEA mandates that local school districts ensure that “[a]ll children with disabilities residing in the State … regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated.” 20 U.S.C. § 1412(a)(3)(A). Once such children have been identified, located, and evaluated the school district must provide them with a FAPE. A FAPE is defined as “special education and related services that-- (a) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with [a child's] individualized education program.” Id. § 1401(9).

         To ensure children with disabilities receive a FAPE, IDEA requires that the school district create and implement an Individualized Education Plan (“IEP”). Lesesne ex rel. B.F. v. D.C., 447 F.3d 828, 830 (D.C. Cir. 2006). The IEP is created at multi-disciplinary meetings with a representative of the school district, teachers, parents or guardians, and the child if appropriate. Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP sets out the child's baseline educational performance, establishes long-term and short-term goals for improvement, and lays out the specialized educational services the child will require to meet those goals. Id. At a minimum, the IEP must be reasonably calculated to provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203-04 (1982).

         After the IEP is created, the school district must provide the child with an appropriate educational placement that is in line with the IEP. See Alston v. D.C., 439 F.Supp.2d 86, 90 (D.D.C. 2006). A child's appropriate educational placement should be in the least restrictive environment possible. See Brown v. D.C., 179 F.Supp.3d 15, 26-27 (D.D.C. 2016). If the child's appropriate educational placement is in the regular classroom of a public education system, the IEP “should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Rowley, 458 U.S. at 204. But, if there is no public school which is suitable, the school district “must pay the cost 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) (internal quotations omitted).

         B. Factual Background

         In her Motion, Plaintiff filed a separate “Statement of Material Facts Not In Dispute.” However, as judicial review in this case is based on the administrative record, Plaintiff should instead have included “a statement of facts with references to the administrative record.” LCvR 7(h)(2). Nevertheless, the Court will consider Plaintiff's “Statement of Material Facts Not In Dispute” in conjunction with Defendant's Statement of Facts in explaining the case's factual background. Z.B. has been identified as eligible for special education and related services based on his disability classification of Autism Spectrum Disorder. AR 6. Z.B. was enrolled at and attended Kingsbury, a nonpublic school in Washington D.C., through the end of the 8th grade.

         Beginning in 2016, Plaintiff and Mark Branham, with whom Plaintiff shares custody of Z.B., became concerned that Kingsbury was not an appropriate school for Z.B. AR 10004-09 (Mr. Branham's testimony that “I didn't think Kingsbury was serving his needs and in fact neither did [Plaintiff]”). These concerns were based on fears that Kingsbury was not meeting Z.B.'s needs and issues with other students. AR 1007-08. Plaintiff attempted, through the school lottery, to place Z.B. at Capitol Hill Montessori, a public, general education school for the 2016-2017 school year. AR 491-92. But, Capitol Hill Montessori indicated that it could not meet Z.B.'s needs. AR 948-49. Following Z.B.'s rejection from Capitol Hill Montessori, Defendant agreed that, rather than an inclusion setting, “other nonpublic placement that offered different supports than what Kingsbury had” should be considered. AR 945-46. Because Defendant concluded that Kingsbury was not providing Z.B. with adequate support, Defendant began considering other nonpublic locations for Z.B. AR 946, 949-50, 955-57, 968-69.

         In approximately June 2016, at Plaintiff's suggestion, Z.B. underwent an independent comprehensive psychological evaluation (“IEE”) paid for by Defendant. AR 315-26. Plaintiff hoped that the IEE would show that Z.B. had a disability categorization other than autism and was prepared to move into a less restrictive setting. However, in September 2016 during a meeting to review the IEE, Plaintiff, Defendant, and other members of Z.B.'s Kingsbury education team determined that autism was Z.B.'s correct diagnosis. AR 541-42 (indicating that “everyone agreed with the autism disability category”). Plaintiff agreed that Z.B. would not be successful in a general education setting. AR 546 (indicating that Plaintiff “accepted the decision of the team”). Additionally, the parties decided to allow Z.B. to remain at Kingsbury until Z.B's location of services could be further discussed at his October 2016 IEP meeting.

         Following the September 2016 meeting, Defendant sent referrals for Z.B. to attend other non-public schools which could implement his IEP. AR 956-59 (stating that “the referrals were still rolling in”). However, Plaintiff refused to allow Z.B. to visit those schools as she did not think that they would meet Z.B.'s needs. See AR 958-59 (stating that Plaintiff “did not” cooperate with the referral process), 961-62 (indicating that Plaintiff refused to go on a tour of a potential school), 988 (stating that Plaintiff declined to meet with Defendant).

         In October 2016, Z.B.'s IEP team met. Z.B. was classified with Autism Spectrum Disorder. AR 270. The IEP stated that Z.B.'s education program would include: 26 hours per week of specialized instruction, 480 minutes per month of occupational therapy, 360 minutes per month of physical therapy, 240 minutes per month of speech-language pathology, and 360 minutes per month of behavioral support services. AR 287. Plaintiff agreed with the substance of Z.B.'s IEP. AR 502 (indicating that Plaintiff was present at the IEP meeting and agreed with its content).

         In January 2017, Selena Barlow of DCPS became the nonpublic monitor specialist in charge of Z.B.'s case. AR 1023. Mr. Branham discussed with Ms. Barlow his concerns about Z.B.'s placement at Kingsbury. AR 1027-28. Ms. Barlow conducted a review of Z.B.'s documents and performed three observations of Z.B. at Kingsbury. AR 1049-52 (discussing an observation of Z.B.), 1070-72 (discussing another observation of Z.B.). Based on her observations, Ms. Barlow became concerned about Z.B.'s location of services. Ms. Barlow noted that Z.B. was not engaged during class and that he had problems contributing to the class, following instructions, organizing his work, completing tasks, and behaving appropriately. AR 1048, 1051-53, 1056. Ms. Barlow noted that, despite his behavioral difficulties, Z.B. did not have a formal Behavioral Implementation Plan (“BIP”) at Kingsbury. AR 1062 (discussing the need for a BIP based on the lack of “engagement” and “disruptive behaviors”). Based on these observations, Ms. Barlow determined that the individualized behavior programming for Z.B. was not adequate and that Kingsbury was not meeting Z.B.'s behavioral needs. AR 1066-70. Additionally, after reviewing Z.B.'s IEE, Ms. Barlow found Z.B.'s scores to be “very concerning” and indicative of a lack of progress. AR 1109-10, 1115-17 (explaining that Z.B. “is in school but he is not engaged in instruction and this has clearly been reflected in his scores with the educational testing that he is not learning a whole lot”). Ms. Barlow's concerns about Z.B.'s academic and behavior progress at Kingsbury were informed by other experiences in which Kingsbury had not met the academic and behavioral needs of various students. AR 1182, 1186.

         Plaintiff contests Ms. Barlow's observations and determinations, arguing that other record evidence shows that Z.B. regularly met his behavioral goals and was progressing academically. AR 319-23 (showing academic achievement), 414-422 (behavioral trackers). However, Ms. Barlow's observations and findings were consistent with those of others on the Kingsbury staff. For example, Kingsbury's clinical psychologist noted that during the 2015-16 school year, Z.B. sought behavioral and emotional support more often than was scheduled. He was also aware of concerns about Z.B.'s lack of a formal BIP. AR 678-79, 687. Additionally, a Kingsbury teacher indicated that Z.B. had difficulty maintaining proper behavior and remaining focused during classes. AR 747-53.

         Following Ms. Barlow's observations, Defendant continued to attempt to find a new location of services that would meet Z.B.'s educational and behavioral needs. AR 1083 (Ms. Barlow's testimony that “I was highly concerned and I didn't want that to continue so I was quickly developing the opinion that a new location service was needed”). Defendant sent Plaintiff and Mr. Branham several letters attempting to set up a meeting to discuss a change in location of services as well as suggesting potential locations. AR 264 (suggesting three schools on April 14, 2017), AR 234 (suggesting two schools on June 6, 2017), see also AR 1084-85 (requesting meeting to discuss change in location), 1092 (same), 1094-95 (same). Based on these letters, Plaintiff understood that Defendant was concerned about Z.B.'s location of services at Kingsbury. AR 556-57. Plaintiff further understood that, because they were unable to move forward with the referral process, Defendant was “forced to keep [Z.B.] in a location that [they did] not see is appropriate.” AR 557. However, Plaintiff did not permit Z.B. to attend visits at the suggested alternative locations. AR 234 (letter noting Plaintiff's refusal to allow Z.B. to visit other schools), 1097 (noting that referrals to other schools were cancelled because Plaintiff would not participate).

         In May 2017, Defendant attempted to schedule a meeting prior to the end of the school year with both parents and Z.B.'s education team at Kingsbury. However, the only date on which Plaintiff and the Kingsbury team were both available to meet was May 25, 2017 at 1:30 p.m. Defendant could not attend at that time because Defendant had a meeting concerning another student at Kingsbury at 2:00 p.m. that day. AR 390-402. Defendant, Plaintiff, and Z.B.'s Kingsbury team were not able to conduct a meeting prior to the end of the school year; however, Defendant continued working to persuade Plaintiff to engage in the referral process. Due to Plaintiff's refusal to engage in the referral process, Z.B. was not accepted at other potential service locations. See, e.g., AR 1097 (indicating that Z.B.'s referrals to two schools were cancelled because Plaintiff would not cooperate).

         In approximately July 2017, Defendant began working with Mr. Branham in pursuing a referral to Kennedy Krieger school for Z.B. Defendant did not include Plaintiff in this referral process. AR 1099 (noting that Ms. Barlow did not include Plaintiff in the referral). In determining if Kennedy Krieger would be an appropriate location for Z.B., Ms. Barlow visited the classes that Z.B. would attend, spoke with the teacher, and observed the services and supports. AR 1103-04. In addition, Mr. Branham visited the school with Z.B. and was “really impressed” with the learning environment. AR 1010-11. Plaintiff argues that Defendant's decision to work with Mr. Branham instead of with Plaintiff on the referral to Kennedy Krieger violated a 2015 “Divorce and Custody Order” giving Plaintiff “tie-breaking authority” in the case that good-faith efforts did not result in a shared decision between Plaintiff and Mr. Branham. AR 405, 408.

         On August 7, 2017, Z.B. was accepted to Kennedy Krieger, and two days later Defendant informed Plaintiff and Mr. Branham that “Kennedy Krieger Montgomery County Campus has been identified as [Z.B.'s] location of services.” AR 306-07. Z.B. could have begun classes on August 28, 2017. AR 304. Consistent with Z.B.'s IEP, Kennedy Krieger offered the following services: 30 hours per week of classroom instruction, 22 hours per week of classroom instruction in July, 480 minutes of occupational therapy per month, 360 minutes of physical therapy per month, 240 minutes of direct speech and language therapy per month, and 360 minutes of behavioral support services per month. AR 304. Kennedy Krieger indicated that it would be able to implement Z.B.'s IEP and develop a formal BIP. AR 901.

         On August 11, 2017, Plaintiff filed a due process complaint. AR 21-28. The hearing officer identified the following issues for adjudication:

• “Whether DCPS denied [Z.B] a FAPE by failing to involve [Plaintiff] in the placement determination in summer 2017. DCPC [sic] circumvented [Plaintiff's] full involvement in the placement determination, though it was aware of Parents' court ordered custody agreement.
• Whether DCPS denied [Z.B.] a FAPE by failing to convene an IEP meeting at a date and time convenient to [Plaintiff] in spring 2017.
• Whether DCPS denied [Z.B.] a FAPE by failing to provide [Plaintiff] with a copy of [her] procedural due process rights when it changed ...

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