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Collette v. District of Columbia

United States District Court, District of Columbia

August 1, 2019

CAMILLE COLLETTE, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION RE DOCUMENT NO. 31, 37, 39, 43


         Granting 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 Enforce


         Plaintiffs 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.

         Defendants 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.


         A. The Individual with Disabilities Education Act

         The 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)).

         The 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) (citations omitted).

         In 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).

         Finally, “[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)).

         B. E.B.'s Education Up to 2015

         E.B. is 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.

         E.B. “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.

         At the 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.

         C. The 2015-2016 School Year

         In the 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.

         On 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.

         D. The 2016-2017 School Year

         At the 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.

         E.B. 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 16.

         E. The 2017-2018 School Year

         In 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.

         One 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.

         F. Procedural History

         Plaintiffs 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.

         In the 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.

         Having 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.

         Plaintiffs 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.

         On 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.

         III. ...

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