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R.B. v. District of Columbia

United States District Court, District of Columbia

September 30, 2019

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

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         R.B. is a teenager with learning disabilities whose parents sue the District of Columbia Public Schools (DCPS) on his behalf and for themselves. The Complaint alleges that DCPS failed to provide R.B. with the free appropriate public education (FAPE) to which he is legally entitled for the 2017-2018 school year. An independent hearing officer decided that DCPS properly prepared an Individualized Education Program (IEP) for R.B. that was reasonably tailored to his special education needs. Plaintiffs appeal, arguing that the hearing officer erred in ruling for DCPS on the appropriateness of R.B.'s IEP and school placement.

         I. FACTS

         Issued on February 14, 2018, the Hearing Officer Determination (HOD) denied Plaintiffs' claim that DCPS violated the Individuals with Disabilities Education Act (IDEA), as amended by the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. § 1400 et seq., by failing to provide R.B. with a FAPE. IDEA provides that any party aggrieved by an HOD may seek redress through a civil action in state or federal court. Id. § 1415(i)(2). Plaintiffs ask the Court to find that R.B. was denied a FAPE in all the ways alleged in the Complaint, to declare that The Lab School of Washington (The Lab School), a private school serving disabled students, is R.B.'s proper placement, and to order DCPS to reimburse R.B.'s tuition at The Lab School for the 2017-2018 school year.

         R.B. is a District of Columbia resident. 2018 HOD, AR at 4.[1] He has been diagnosed with multiple learning disabilities, including Specific Learning Disability (SLD) and Other Health Impairment (OHI) due to Attention Deficit Hyperactivity Disorder (ADHD). Id.; see also 3/20/16 Confidential Comp. Psychological Re-Evaluation, AR at 77-118; 7/20/16 IEP Meeting Notes, AR at 194-99. His diagnosis means that R.B. 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.

         R.B. was first deemed eligible to receive special education services through DCPS in July 2016. 7/20/16 IEP Meeting Notes, AR at 194-99. Between 2014 and 2017, R.B.'s parents filed a series of administrative complaints against DCPS regarding R.B.'s special education status. The first complaint resulted in a settlement. The second and third complaints led to HODs in 2016 and 2017, with each finding that DCPS had denied R.B. a FAPE. The immediate HOD on appeal concluded that DCPS had met its obligations under IDEA; this February 2018 HOD is now before the Court on appeal by Plaintiffs.

         A. R.B.'s Early Education Years

         From kindergarten through fifth grade, R.B. attended Horace Mann Elementary School, part of DCPS. 3/20/16 Confidential Comp. Psychological Re-Evaluation, AR at 77. While R.B. was at Horace Mann, his parents were concerned about his writing skills, homework completion, and his stress and anxiety levels about school. On November 6, 2013, DCPS convened a student support team to discuss R.B.'s ongoing difficulties. See 2016 HOD, AR at 53.

         In December 2013 and early January 2014, R.B. was evaluated by an independent psychologist. The psychologist found that R.B. demonstrated weaknesses in areas of attention and executive function, spelling, written language, phonological processing, and fine motor skills, and showed increased levels of depression. 2016 HOD, AR at 53. The psychologist diagnosed R.B. with ADHD combined type, a disorder of written language, and developmental coordination disorder. The psychologist recommended that R.B. be provided with an IEP, as well as targeted remediation and classroom and testing accommodations. Id.

         R.B.'s parents submitted the independent psychologist's report to DCPS in February 2014. A psychologist employed by DCPS conducted her own evaluation that included a review of R.B.'s academic records, student and teacher interviews, and classroom observations. Id. at 58-59. The DCPS psychologist concluded that R.B. did not require an IEP, in part because R.B. had not demonstrated consistent below-grade-level performance. Id. at 59.

         B. The 2014 Due Process Complaint and Settlement

         DCPS held an eligibility meeting concerning R.B. on May 6, 2014. DCPS told R.B.'s parents that it found R.B. to be ineligible for special education services. However, DCPS proposed that R.B. be provided with a Section 504 plan. Id. A Section 504 plan, named after the section of the Rehabilitation Act in which it was established, see Pub. L. No. 93-112, 87 Stat. 355 (codified as amended in 29 U.S.C. § 794), “is designed to assist students with learning or behavior problems even if they do not qualify for an Individualized Education Plan (IEP) under the IDEA.” Horne v. Potomac Preparatory P.C.S., No. 15-cv-115, 2016 WL 3962788, at *2 n.2 (D.D.C. July 20, 2016). DCPS recommended a Section 504 plan for R.B. that would include occupational therapy services, behavioral support services, and various accommodations. R.B.'s parents declined such a plan. 2016 HOD, AR at 54; see also 3/20/16 Confidential Comp. Psychological Re-Evaluation, AR at 77.

         Instead, on May 19, 2014, R.B.'s parents filed a due process complaint under IDEA challenging the conclusion that R.B. was ineligible for special education services. 2016 HOD, AR at 59. R.B.'s parents also notified DCPS that they intended to seek public funding for R.B. to attend a private school. Id. R.B.'s parents subsequently placed him in The Lab School, a special education day school that exclusively serves students with disabilities. See 2018 HOD, AR at 7, 10; see also 2/1/18 Hearing Tr., AR at 688. R.B. enrolled at The Lab School at the beginning of the 2014-2015 school year, when R.B. entered sixth grade.

         In October 2014, DCPS settled the 2014 due process complaint filed by R.B.'s parents. 2016 HOD, AR at 60. DCPS agreed to fund R.B. at The Lab School for the 2014-2015 school year and to assess R.B.'s eligibility for special education services by the end of April 2015. Id.

         C. The 2016 HOD

         DCPS convened an eligibility meeting concerning R.B. in January 2015. Id. at 61. DCPS again determined that R.B. was ineligible for special education services and offered to develop a Section 504 plan for R.B. Id. at 62. R.B.'s parents again declined a Section 504 plan and filed another due process complaint. R.B.'s parents sought a determination that DCPS had denied R.B. a FAPE and also sought reimbursement for R.B.'s placement at The Lab School for the 2015-2016 school year. Id. at 54.

         The HOD was issued on January 3, 2016; it found that DCPS had failed to evaluate R.B. sufficiently to determine his eligibility for special education services, id. at 65, and that further testing of R.B. was required, since the evidence in the record did not establish R.B.'s eligibility for an IEP. Id. at 66-68. The HOD ordered the District to determine R.B.'s eligibility within 75 calendar days and, if R.B. were determined to be eligible, to develop an IEP within 30 days. Id. at 70. It further ordered DCPS to fund R.B.'s enrollment at The Lab School for the 2015-2016 school year. Id. at 70-71.

         D. The 2017 HOD

         On July 20, 2016, after several rounds of testing, DCPS found R.B. to be eligible for special education services as a student with multiple disabilities including SLD and OHI. See 7/20/16 IEP Meeting Notes, AR at 194-99. Thereafter, DCPS proposed an IEP for R.B. that would have provided 10 hours per week of specialized instruction “inside of general education, ” 60 minutes per month of behavioral support services “outside of general education, ” and 240 minutes per month of occupational therapy split evenly between inside and outside general education.[2] 2017 HOD, AR at 232. DCPS indicated that R.B.'s likely placement would be at Deal Middle School, a public school within DCPS. See id at 233; see also Pls.' Mot. for Summ. J. (Pls.' Mot.) [Dkt. 16] at 9. The parents disagreed with the proposed IEP, maintaining that R.B should not be placed in a general education setting. 2017 HOD, AR at 233. They also objected that the IEP did not provide for speech and language services. Id.

         R.B.'s parents filed another due process complaint in August 2016 and a due process hearing was held in February 2017. Id. at 226-27. The HOD was issued on February 20, 2017, in which the hearing officer agreed with R.B.'s parents in part. See Id. at 225-50. While the HOD found that R.B. was ineligible for speech and language services, it also found that R.B.'s IEP was inappropriate because the proposed quantity and method of specialized instruction were deficient. The HOD noted that the average general education class size in which R.B. would be placed at Deal consisted of approximately 20 students, id. at 240, but “found the opinions of the Parents' experts, that [R.B.] requires full-time specialized instruction in a small classroom setting, more credible than the contrary opinion of [the] DCPS Specialist that [R.B.] could be adequately served in the general education setting.” Id. at 242.

         Nevertheless, the hearing officer was not persuaded “that [R.B.'s] least restrictive environment is a special school like [The Lab School], where there are no typically developing peers.” Id. at 247. He “expressly [did] not find that [R.B.] could not receive educational benefits in a small, structured classroom in a traditional public school.” Id.

         As a remedy, the HOD ordered DCPS to hold an IEP meeting before May 31, 2017, and to revise R.B.'s IEP in conformity with the 2017 HOD. It further ordered DCPS to fund R.B.'s placement at The Lab School for the 2016-2017 school year. Id. at 248.

         E. The 5/1/17 IEP

         Pursuant to the 2017 HOD, DCPS held an IEP meeting for R.B. on May 1, 2017. 5/1/17 IEP Meeting Notes, AR at 270-85. The meeting included participants from DCPS and The Lab School, as well as R.B.'s family and representatives. See Id. at 282.

         That meeting resulted in a revised IEP that would have provided R.B. with 25.5 hours of specialized instruction per week, 120 minutes per month of behavioral support services, and 360 minutes per month of occupational therapy, all to be provided outside general education. 5/1/17 IEP, AR at 287-314. The IEP also required the following classroom aids and services:

Extended time, advance notice of tests, calculator, extra processing/wait time, mark on test, location with minimal distractions, preferential seating close to the point of instruction and with minimal distractions, repetition of oral and written directions, small group setting, word processing software with spell-check features, word bank, flexibility in scheduling, frequent breaks, grid paper for math, simplified visual field, cues to wear glasses.

Id. at 310. During the meeting, DCPS stated that R.B. would have lunch and electives in the general education setting. 5/1/17 IEP Meeting Notes, AR at 278.

         R.B.'s representatives agreed with most of the provisions of the IEP. 2018 HOD, AR at 9. However, they objected to R.B. having lunch and electives with non-disabled peers. They also expressed concern that the IEP did not provide for speech and language services. 5/1/17 IEP Meeting Notes, AR at 278-79. DCPS disagreed and advised that a school assignment would be forthcoming. Id. at 279.

         On May 24, 2017, R.B. received a letter from DCPS stating that his school placement would be Woodrow Wilson High School (Woodrow Wilson HS) for the 2017-2018 school year. 5/24/17 DCPS Location of Services Letter, AR at 317. The letter stated that “Woodrow Wilson HS has the programming in place for the 2017-2018 school year to meet [R.B.'s] IEP needs.” Id. The letter further explained that “[Woodrow Wilson HS has] . . . space available in the Specific Learning Support . . . classroom for [R.B.'s] next grade level.” Id.

         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.” Resource Guide at 18. SLS classrooms provide special education to students whose IEPs require 20 or more hours of specialized instruction. See Id. at 3. SLS students typically learn their “core content” in an ...


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