United States District Court, District of Columbia
MEMORANDUM OPINION RE DOCUMENT NO. 31, 37, 39,
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Defendants' Motion to Strike or Dismiss; Granting in Part
Plaintiffs' Motion for Summary Judgment;
Granting in Part Defendants' Motion for
Summary Judgment; Denying Plaintiffs' Motion to
Camille Collette and Jacques Benoit brought this suit
pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400-50, to
challenge the education provided by the District of Columbia
to their son, E.B, between 2012 and 2018. After partially
prevailing in an administrative hearing, where the hearing
officer determined that the District had failed to provide
E.B. with a free and appropriate public education
(“FAPE”) under the IDEA in the 2016-2017 and
2017-2018 school years, Plaintiffs asked this Court to review
and in substantial part reverse the Hearing Officer
Determination (“HOD”). Plaintiffs brought ten
claims for alleged errors in the HOD, challenging both the
hearing officer's denial of a number of their claims in
the administrative proceedings and the adequacy of the remedy
they were granted for the District's failure to provide a
FAPE to E.B. between 2016 and 2018.
the District; Muriel Bowser, Mayor of the District; and
Amanda Alexander, Interim Chancellor of D.C. Public Schools
(“DCPS”), have now moved to strike or dismiss the
complaint in part, arguing that Plaintiffs improperly brought
claims against the individual defendants. Plaintiffs move for
summary judgment on seven of their ten claims (withdrawing
two), while Defendants cross-move for summary judgment on all
remaining claims. And Plaintiffs have also moved for the
Court to enforce the HOD as to the claims on which they
prevailed at the administrative hearing, arguing that
Defendants have failed to comply with their obligations
pursuant to the HOD. Reviewing each motion in turn, the Court
grants Defendants' motion to strike or dismiss, grants
both parties summary judgment in part, and denies
Plaintiffs' motion to enforce the HOD. The Court remands
this case to the hearing officer for a determination of what
compensatory education to award E.B. and whether a
prospective education award is appropriate.
The Individual with Disabilities Education Act
IDEA was enacted “to guarantee a free and appropriate
public education . . . to disabled students.”
Capital City Pub. Sch. v. Gambale, 27 F.Supp.3d 121,
124 (D.D.C. 2014). A FAPE must “emphasize special
education and related services designed to meet the unique
needs” of disabled students “and prepare them for
further education, employment, and independent living.”
Lague v. District of Columbia, 130 F.Supp.3d 305,
311 (D.D.C. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A)).
“All ‘states and territories, including the
District of Columbia, that receive federal education
assistance must establish policies and procedures to ensure,
among other things, that . . . [a] FAPE is available to
disabled children' within their school districts.”
Gambale, 27 F.Supp.3d at 124 (alterations in
original) (quoting Branham v. Gov't of the Dist. of
Columbia, 427 F.3d 7, 8 (D.C. Cir. 2005)). And
“[a] free and 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)).
individualized education program (“IEP”)
“is the primary vehicle for implementing the
IDEA.” Lague, 130 F.Supp.3d at 311 (quoting
Joaquin v. Friendship Pub. Charter Sch., No.
14-01119 (RC), 2015 WL 5175885, at *1 (D.D.C. Sept. 3,
2015)). It is a written document “[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, ” that
“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.” Lesesne ex rel. B.F. v.
District of Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006)
addition to participating in the development of their
child's IEP, see id., parents of disabled
children are also entitled under the IDEA to receive a prior
written notice (“PWN”) “whenever the local
educational agency . . . proposes to change the educational
placement of the child, ” 20 U.S.C. § 1415(b)(3),
a procedural requirement intended to ‘“provide
sufficient information to protect the parents' rights
under the Act' and to ‘enable the parents to make
an informed decision whether to challenge the DCPS's
determination.'” Middleton v. District of
Columbia, 312 F.Supp.3d 113, 135 (D.D.C. 2018) (quoting
Jalloh v. District of Columbia, 968 F.Supp.2d 203,
213 (D.D.C. 2013)). If a parent “disagrees with an
evaluation obtained by the public agency, ” the parent
is entitled under the IDEA “to an independent
educational evaluation at public expense.” 34 C.F.R.
§ 300.502(b)(1). When faced with a request for an
independent educational evaluation (“IEE”), the
public agency must either “(i) file a due process
complaint . . . to show that its evaluation is appropriate;
or (ii) [e]nsure that an [IEE] is provided at public expense,
unless the agency demonstrates in a hearing . . . that the
evaluation obtained by the parent did not meet agency
criteria.” Id. § 300.502(b)(2).
“[a] parent who objects to the ‘identification,
evaluation, or educational placement' of their
child” can file an administrative complaint and is
entitled to an impartial due process hearing.
Gambale, 27 F.Supp.3d at 124-25 (quoting 20 U.S.C.
§ 1415(b)(6)). Administrative decisions can in turn be
challenged through judicial proceedings in U.S. District
Court. See 20 U.S.C. §§ 1415(i).
“[D]uring the pendency of any administrative or
judicial proceeding regarding a due process complaint notice
requesting a due process hearing . . ., the child involved in
the complaint must remain in his or her current educational
placement.” 34 C.F.R. § 300.518. Under this
so-called “stay put” provision, the child's
parents can obtain an automatic injunction preventing changes
to the child's educational placement “when the
school system proposes . . . ‘a fundamental change in,
or elimination of, a basic element of the [then-current
educational placement].'” Alston v. District of
Columbia, 439 F.Supp.2d 86, 90 (D.D.C. 2006) (alteration
in original) (quoting Lunceford v. District of Columbia
Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984)).
E.B.'s Education Up to 2015
a minor child and a resident of the District of Columbia.
A.R. at 4. E.B. “has been medically diagnosed with
impulse control disorder, episodic dyscontrol syndrome,
anxiety, learning disabilities, and ASD [autism spectrum
disorder].” Id. at 8. He has also been
diagnosed with PANDAS (pediatric autoimmune neuropsychiatric
disorder associated with streptococcal infections),
“which is believed by some in the neurologic community
to cause a neurologic reaction to associated infections,
” id. at 9, and he has been “identified
. . . as a gender non-conforming (GNC) youth, ” which
increases his difficulty in interacting with peers,
id. at 8.
“is eligible for special education under the IDEA
disability classification Autism Spectrum Disorder.”
Id. at 8. After he was initially evaluated and
determined to have a disability in March 2012, id.,
E.B.'s first IEP was developed on April 24, 2012,
id. at 9. Plaintiffs did not believe the IEP to
provide sufficient services for E.B., see id., and,
after DCPS was unable to offer any placement for E.B.,
see Id. at 1388-90 (testimony of Camille Collette),
they enrolled him in private school for the 2012-2013 school
year, id. at 10. In June 2013, Plaintiffs obtained a
spot for E.B. at Murch Elementary School for the next school
year through the D.C. Public Schools lottery system.
Id. at 51. E.B.'s IEP was updated on June 26,
2013. Id. at 10. However, Plaintiffs wanted to hold
E.B. back in preschool because they believed he was not
sufficiently emotionally mature to be advanced. Id.
at 11. After Murch Elementary School (“Murch”)
refused to do so, Plaintiffs enrolled E.B. in private school
for the 2013-2014 school year. Id.
end of the 2013-2014 school year, E.B.'s IEP was again
updated. A meeting was held on June 19, 2014, at which a
physician specialized in developmental and behavioral
pediatrics “told the IEP team that [E.B.] needed a
small classroom in a small school, which would be able to
provide immediate feedback and consistency in behavior
management.” Id. The revised IEP nonetheless
provided for E.B. to “receive almost all instruction in
the public school general education setting, ”
id., while reducing the specialized services he
would receive compared to the June 26, 2013 IEP, compare
Id. at 651 (listing special education and related
services received under 2013 IEP) with Id. at 617
(listing same services under 2014 IEP). E.B. had a difficult
summer that year, id. at 11, and his
“emotional state continued to deteriorate, ”
id. at 52. Believing that his placement at Murch
would create significant safety concerns for E.B., Plaintiffs
withdrew him from DCPS and enrolled him at The Auburn School
(“Auburn”), a private school located in Maryland,
for the 2014-2015 school year. See Id. at 11, 52.
The Auburn School offers tailored educational services in a
small classroom setting, id. at 1212-13, and its
“focus is to serve children, like [E.B.], who have
social or communication challenges associated with ASD
symptoms, ” id. at 32. E.B. did well while at
Auburn, making educational progress in writing, reading, and
mathematics. A.R. at 12, 1223.
The 2015-2016 School Year
Spring of 2015, Plaintiffs approached DCPS about re-enrolling
E.B. at Murch Elementary School. See Id. at 12, 52.
A revised IEP was not prepared in anticipation of the
2015-2016 school year. See Id. at 23, 52. E.B. began
attending Murch at the start of the school year, but the
situation quickly deteriorated. Id. at 12, 52. E.B.
had to be dragged to Murch “kicking and screaming,
” id. at 12, and “would frequently elope
from the walking pattern to school, ” id. at
1423. He complained to his parents that he did not feel safe
in school. Id. at 1424. “On one day, [E.B.]
sat down in the street and refused to go to school.”
Id. at 12. After two weeks, feeling that
“everybody had . . . done their best, but that . . .
[E.B.] was [not] developmentally ready, ” id.
at 1426, Plaintiffs decided to withdraw E.B. from Murch and
to enroll him at Auburn for the rest of the 2015-2016 school
year, id. at 12. E.B. again did well at Auburn,
improving both his social thinking and communicating skills
and his academic abilities. Id. at 13.
September 21, 2015, after E.B. had been withdrawn from Murch
and placed back at Auburn, the IEP team met again to update
his IEP in anticipation of the 2016-2017 school year.
Id. at 12, 1427. The new IEP provided that E.B.
would return to Murch. Id. at 12. The specialized
services to be provided E.B. were again adjusted, with the
IEP team agreeing that the IEP was appropriate for E.B. at
the time. See Id. at 13, 1606, 1689-90.
The 2016-2017 School Year
beginning of the 2016-2017 school year, Plaintiffs were
committed to having E.B. try to attend Murch again.
Id. at 13. E.B. started the school year at Murch,
and on September 19, 2016, his IEP team met to update his
IEP. Id. at 13-14, 575. The IEP was revised again on
October 26, 2016. Id. at 14, 225. On both occasions,
Plaintiffs participated in the IEP meeting and approved the
IEPs. Id. at 14. Later in the school year, and after
several months of back and forth, DCPS granted
Plaintiffs' request to have a neuropsychological IEE
conducted for E.B. on February 13, 2017. Id. at
795-804. DCPS's approval letter only authorized the
payment of up to $2406.72 for the IEE, which DCPS contended
was the market rate for such an evaluation. Id. at
795. Plaintiffs had the IEE conducted in March 2017 by Dr.
Daisy M. Pascualvaca, a neuropsychologist, for a total cost
of $4, 550. Id. at 791. DCPS subsequently refused to
pay the difference between the amount stated in the IEE
authorization letter and the amount charged by Dr.
Pascualvaca. Id. at 793.
had a difficult year at Murch. He did well from an academic
perspective, performing “at or above grade level in
Reading and Math” and “close to grade
level” in writing. Id. at 15. However, it once
again “was a struggle to get [E.B.] to school, ”
with both the school staff and Plaintiffs working together to
encourage E.B. to attend. Id. at 14. Murch allowed
E.B. to arrive late, and he “missed hours of class
time” as a result. Id. at 15. And in the
Spring of 2017, several serious incidents occurred that
ultimately led to E.B. ending the school year early. In March
2017, after E.B. “reacted badly to changes in school
routine caused by a snow day, ” he was
‘“corralled' in a washroom by staff”
until he calmed down. Id. A month later, E.B. cursed
and threatened Murch's social worker after refusing to go
to his classroom. Id. And in May 2017, E.B. was
alleged to have threatened another student in the school
cafeteria and threatened to self-harm after another incident.
Id. E.B. was withdrawn from Murch for the rest of
the school year after the cafeteria incident. Id. at
The 2017-2018 School Year
anticipation of the 2017-2018 school year, an eligibility
meeting was convened on May 8, 2017, where E.B.'s
eligibility for special education as a student with ASD was
again confirmed. Id. Plaintiffs and DCPS agreed to
hold another meeting as soon as the results of the IEE
approved in February 2017 would be released to the school.
Id. at 152. On June 5, 2017, DCPS was provided with
reports of an occupational therapy evaluation of E.B. and of
an autism and gender development consultation conducted by a
neuropsychologist. Id. at 16-17. At some point in
June, DCPS was also provided with Dr. Pascualvaca's IEE
report, which, inter alia, recommended that E.B.
“attend a full-time special education school, designed
specifically to meet the needs of students with social and
communication challenges.” Id. at 17.
June 14, 2017, the IEP team met to review the IEE report and
to discuss updating the IEP in anticipation of the next
school year. Id. at 18. The report was discussed by
the team, but was not incorporated into the IEP, with the
school psychologist “stat[ing] that the IEE evaluation
was incomplete because it lacked a classroom
observation.” Id. The IEP team also declined
to follow Dr. Pascualvaca's recommendation to have E.B.
placed in a smaller, full-time special education school, and
his IEP was not amended. See Id. at 33. And the IEP
team did not discuss the two reports received by DCPS on June
5, 2017. Id. at 35-36. On July 2, 2017, Plaintiffs
informed DCPS that they disagreed with the decision not to
revise the IEP in light of the three reports, and that they
would again be placing E.B. at Auburn for the 2017-2018
school year. Id. at 18. DCPS failed to hold any
further IEP meeting for E.B. Id. at 18-19.
filed a due process complaint with the District's Office
of the State Superintendent of Education (“OSSE”)
on October 13, 2017. Id. at 4, 46. Plaintiffs
identified twelve separate issues in their due process
complaint, relating to DCPS's provision of educational
services to E.B. between 2012 and 2018. Id. at
55-56. They asked for, inter alia, reimbursement for
placing E.B. at Auburn for three years, prospective placement
at Auburn in the future, and an order for DCPS to provide
compensatory education services to E.B. A due process hearing
was held over four days in January and February 2018, at
which Plaintiffs, several medical professionals, and school
officials testified. Id. at 4. Plaintiffs dropped
two of their claims at the conclusion of the hearing.
Id. at 6 n.2. And on February 18, 2018, the hearing
officer issued a HOD resolving Plaintiffs' ten remaining
claims: that DCPS had denied E.B. a FAPE by developing
inappropriate IEPs in April 2012, June 2013, June 2014,
September 2015, and the fall of 2016, and failing to offer an
appropriate educational placement for E.B. in each
corresponding school year; failing to revise E.B.'s June
2014 IEP within a year; failing to revise his October 2016
IEP by the start of the 2017-2018 school year; failing to
conduct IEP meetings to review various medical evaluations
conducted by Plaintiffs and provided to DCPS; failing to
conduct a comprehensive re-evaluation of E.B. in the Spring
of 2017; failing to fully pay for Dr. Pascualvaca's IEE;
and failing to issue PWNs informing Plaintiffs of E.B.'s
placement every school year between 2012 and 2018.
Id. at 5-6.
HOD, the hearing officer first denied as barred by the
statute of limitations all claims resting on alleged
violations occurring more than two years prior to the filing
of the administrative complaint on October 13, 2017. See
Id. at 20-25. Time-barred claims included
Plaintiffs' claims relating to E.B.'s IEPs for April
2012, June 2013, June 2014, and September 2015, and to his
educational placement for each associated school year; the
failure to revise E.B.'s June 2014 IEP within a year; and
any PWNs that allegedly should have been issued in school
years 2012-2013 through 2014-2015. See Id. The
hearing officer next reviewed the Fall 2016 IEPs, and
concluded that they were inappropriate and denied E.B. a
FAPE. Id. at 26-30. He similarly concluded that
DCPS's failure to revise E.B.'s IEP by the start of
the 2017-2018 school year denied E.B. a FAPE. Id. at
30-33. However, the hearing officer denied Plaintiffs relief
on their claims relating to DCPS's failure to review
medical evaluations, to re-evaluate E.B. in the Spring of
2017, and to issue PWNs between 2015 and 2018. Id.
at 33-37. The hearing officer found that the failure to
review medical evaluations, re-evaluate E.B., and to send any
required PWNs for the 2015-2016 school year were procedural
violations that did not create the prejudice required to find
a denial of a FAPE. See Id. And he found that
whether the failure to issue PWNs between 2016 and 2018
resulted in the denial of a FAPE was “irrelevant”
because he had already found the denial of a FAPE for those
years. Id. at 37 (quoting Adams v. District of
Columbia, 285 F.Supp.3d 381, 394 (D.D.C. 2018)).
Finally, the hearing officer denied Plaintiffs' claim
relating to payment for the IEE, finding both 1) that
Plaintiffs had not shown they were unable to obtain the
evaluation at DCPS's approved cost, and 2) that the IEE
was inappropriate because it lacked a classroom evaluation.
Id. at 34.
found the denial of a FAPE to E.B. for the 2016-2017 and
2017-2018 school years, the hearing officer moved on to what
relief to award Plaintiffs. As a remedy for the failure to
have a proper IEP in place by the start of the 2017-2018
school year, the hearing officer awarded Plaintiffs the cost
of placing E.B. at Auburn between the start of the school
year and the date of the due process hearing. Id. at
33. The hearing officer next recognized that Plaintiffs were
seeking both compensatory education for DCPS's denial of
a FAPE for the 2016-2017 school year, and a prospective
placement at Auburn in the future. See Id. at 38-39.
But rather than addressing both separately, the hearing
officer noted that making a determination as to either would
be difficult and, “[a]s an alternative, . . .
grant[ed], as compensatory education, the parents'
request that DCPS be ordered to fund [E.B.]'s continued
placement at [Auburn] for the remainder of the 2017-2018
school year.” Id. at 39. Altogether, the HOD
thus provided for DCPS to fully cover the costs of E.B.'s
attendance to Auburn for the 2017-2018 school year. See
Id. at 40.
brought a lawsuit challenging the HOD on May 9, 2018.
See Compl., ECF No. 1. On August 27, 2018, the Court
granted Plaintiffs a “stay put” injunction
pursuant to the IDEA, obligating Defendants to fund
E.B.'s placement at Auburn for the pendency of
Plaintiffs' appeal of the HOD. Order Granting Pls.'
Mot. Prelim. Stay Put Inj., ECF No. 12. And on November 18,
2018, Plaintiffs filed the operative amended complaint.
See Am. Compl., ECF No. 27. Plaintiffs bring ten
claims in the amended complaint. See generally Id.
Nine are related to the HOD: Plaintiffs allege that the
hearing officer erred in finding that their challenges to 1)
the June 2014 IEP and 2014-2015 placement, 2) the failure to
timely review the June 2014 IEP, and 3) the September 2015
IEP and 2015-2016 placement were barred by the statute of
limitations. See Id. ¶¶ 57-62. Plaintiffs
further allege that the hearing officer erred by 4) failing
to award relief based on DCPS's failure to provide PWNs;
5) addressing DCPS's alleged failure to provide a
functional behavioral assessment (“FBA”) for
E.B., a claim withdrawn during the due process hearing;
declining to award relief based on DCPS's 6) failure to
accept Dr. Pascualvaca's IEE and 7) failure to consider
Plaintiffs' other medical evaluations; 8) failing to
award Plaintiffs the cost of Dr. Pascualvaca's IEE; and
9) failing to properly evaluate Plaintiffs' request for
prospective and compensatory education. Am. Compl.
¶¶ 57-74. Finally, Plaintiffs claim 10) that
Defendants have failed to comply with the portion of the HOD
ordering them to pay the costs of E.B.'s attendance at
Auburn for 2017-2018. Id. ¶¶ 75-77.
December 12, 2018, Defendants moved to strike or dismiss the
claims against the individual Defendants. See
Defs.' Mot. Strike, ECF No. 31. Plaintiffs filed their
opposition on December 22, 2018. See Pls.'
Opp'n Mot. Strike, ECF No. 36. On December 28, 2018,
Plaintiffs moved for summary judgment on all claims except
the two claims relating to the June 2014 IEP, which they
withdrew, and the claim relating to Defendants' failure
to comply with the HOD. See Pls.' Mem. Supp.
Mot. Summ. J. (“Pls.' MSJ Mem. Supp.”) 11-24,
ECF No. 37-2. Defendants cross-moved for summary judgment on
all remaining counts on January 25, 2019. See
Defs.' Mem. Supp. Cross-Mot. Summ. J. (“Defs.'
MSJ Mem. Supp.”), ECF No. 39. Plaintiffs filed their
reply on February 22, 2019, see Pls.' Reply
Supp. Summ. J. (“Pls.' MSJ Reply”), ECF No.
41, and filed a motion to compel compliance with the HOD on
February 26, 2019, see Pls.' Mem. Supp. Mot.
Compel, ECF No. 43-2. Defendants filed their reply in further
support of summary judgment on March 8, 2019. See
Defs.' Reply Supp. Summ. J., ECF No. 44. Defendants filed
their opposition to the motion to compel on April 16, 2019,
see Defs.' Opp'n Mot. Compel, ECF No. 47,
and Plaintiffs filed their reply on May 6, 2019, see
Pls.' Reply Supp. Mot. Compel, ECF No. 48.