District of Columbia v. Abramson, Civil Action No. 06-2105 (PLF).

• Decision Date: 03 July 2007
• Docket Number: Civil Action No. 06-2105 (PLF).
• Parties: DISTRICT OF COLUMBIA, Plaintiff, v. Larry ABRAMSON and Caroline Newman, Defendants.
• Court: U.S. District Court — District of Columbia

493 F.Supp.2d 80

DISTRICT OF COLUMBIA, Plaintiff, v. Larry ABRAMSON and Caroline Newman, Defendants.

Civil Action No. 06-2105 (PLF).

United States District Court, District of Columbia.

July 3, 2007.

Veronica A. Porter, Office of Attorney General for the District of Columbia, The District of Columbia, Washington, DC, for Plaintiff.

Haylie Michelle Iseman, Michael J. Eig, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This is a case brought under the Individuals with Disabilities Education Act, as amended, ("IDEA"), 20 U.S.C. § 1400 et seq. It is an appeal from a Hearing Officer Decision by the District of Columbia on behalf of the District of Columbia Public Schools ("DCPS"). The defendants are the parents of the student, S.A. There are cross motions for summary judgment before the Court. The Court heard oral argument on May 31, 2007.

I. BACKGROUND

The undisputed facts are as follows. The student, S.A., was born on January 16, 1991, and, along with his parents, is a resident of the District of Columbia. See DCPS Statement of Material Facts as to Which There is No Genuine Issue ("SMF") ¶ 1. S.A. attended a District of Columbia public school from kindergarten through second grade, and then was placed by his parents at a private school, the Lowell School, from third through sixth grades. See id. ¶¶ 2-3. S.A. was placed by his parents at another private school, the Georgetown Day School, in the seventh grade and remained there until February 2006. See id. ¶ 4. S.A. did not request or receive special education services at any of these schools. See id. ¶ 5.

During the 2005-2006 school year, the parents noticed a drop in S.A.'s academic performance and changes in his behavior. S.A.'s mother took him to the Central Assessment Referral and Evaluation Center ("C.A.R.E.Center") at Shaw Junior High School on January 4, 2006 to register him as a DCPS non-attending student and to request that he be evaluated for special education services. See DCPS SMF ¶¶ 8-9; September 14, 2006 Hearing Officer Decision ("HOD") at 2.¹"On January 18, 2006, the C.A.R.E. Center staff convened a Multidisciplinary Team (MDT') meeting to discuss S.A.'s eligibility for special education services. No decision was reached at that time." DCPS SMF ¶ 10.

The C.A.R.E. Center later contacted the Georgetown Day School to schedule a classroom observation for S.A., but the Center was advised that his parents had withdrawn S.A. from that school effective February 27, 2006. See DCPS SMF ¶ 11. S.A.'s parents placed him at the Grove School, a residential therapeutic private school in Madison, Connecticut, on April 4, 2006. See id. ¶¶ 12-13.

On May 5, 2006, DCPS convened a second MDT Meeting, which the parents attended. However, the MDT team declined to continue any further with the IDEA process, explaining that S.A. was no, longer the responsibility of DCPS, since he was by then attending a private school outside of the District. The C.A.R.E. Center staff informed the family that they would instead have to register S.A. within the school system of the county in which Grove is located.

Id. ¶ 9.

"On May 23, 2006, S.A.'s parents filed a request for a due process hearing based on the failure of DCPS to evaluate S.A., determine his eligibility, and provide him with an Individualized Education Program (`IEP') and special education placement." Defendants' SMF ¶ 10; see also id. ¶ 15. "A hearing was held on August 21, 2006 and the Hearing Officer issued his decision on September 14, 2006." id. ¶ 10.

In his decision, the Hearing Officer summarized the arguments of the parties, which appear to be similar to those made in the briefs filed in connection with the cross motions for summary judgment in this case. See HOD at 4-5. The Hearing Officer then reviewed the IDEA and the applicable regulations and ruled for the parents. See id. at 5-10. Defendants summarize his decision as follows:

12. The Hearing Officer concluded that as S.A.'s Local Educational Agency ("LEA"), DCPS is responsible for offering a [free appropriate public education ("FAPE") ] by evaluating him, convening an eligibility meeting, determining eligibility, and if S.A. is found eligible, developing an IEP and offering an appropriate placement. Complaint ¶¶ 23-28; Hearing Officer's Decision at 8-10. Further, he found that DCPS denied S.A. a FAPE by failing to complete the eligibility process within the 120-day timeline. Complaint ¶ 24; Hearing Officer's Decision at 9.

13. The Hearing Officer ordered DCPS to promptly complete the special education process and upon a finding of eligibility, reimburse the parents for the Grove tuition until such time that DCPS provides an appropriate placement. Complaint ¶¶ 26-28; Hearing Officer's Decision at 10.

Defendants' SMF ¶¶ 12-13 (emphasis added). DCPS filed this lawsuit to appeal this Hearing Officer Decision.

Defendants include in their Statement of Material Facts Not in Dispute their summary of subsequent events as well. See Defendants' SMF ¶¶ 14-18. DCPS asserts that the subsequent events are not relevant to this lawsuit. See Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pl's Opp.") at 5. The Court notes, however, that the IDEA provides: "In any action brought under this paragraph, the court ... shall receive the records of the administrative proceedings; [and] ... shall hear additional evidence at the request of a party...." 20 U.S.C. § 1415(i)(2)(C). Defendants have requested that the Court take into account this additional evidence, and the Court will do so in accordance with the statute to the extent that is necessary to resolve the issues in this case.

On March 9, 2007, DCPS completed a Multi-Disciplinary Team meeting and determined that S.A. is eligible for special education services. See MDT Meeting Notes, Exh. 2 to Defendants' Motion to Show Cause, at 3 (pages not numbered); Defendants' SMF ¶ 17.

DCPS brought this lawsuit because, it asserts, the Hearing Officer made four significant errors: (1) the Hearing Officer erred when he concluded that defendants' unilateral placement of S.A. at the Grove School did not relieve DCPS of the obligation to complete the evaluation process (Count I); (2) the Hearing Officer erred when he concluded that DCPS's failure to complete the eligibility process was a denial of FAPE (Count II); (3) the Hearing Officer erred when he ordered DCPS to continue with the eligibility process (Count III); and (4) the Hearing Officer erred when he ordered DCPS to reimburse the parents for S.A.'s tuition at the Grove School "from the date that an eligibility determination should have been made ... until such time as the student is provided an appropriate placement" (Count IV). See Complaint at 5-6 (quoting HOD at 10).

II. LEGAL STANDARDS

The IDEA provides as follows for District Court review of Hearing Officer Decisions:

Any party aggrieved by the findings and decision ... shall have the right to bring a civil action with respect to the complaint presented pursuant to this section .... In any action brought under this paragraph, the court ... shall receive the records of the administrative proceedings, ... shall hear additional evidence at the request of a party, and ... basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

20 U.S.C. § 1415(i)(2). DCPS, as the aggrieved party in this case, has the burden of persuading the Court by a preponderance of the evidence that the hearing officer was wrong. See Angevine v. Smith, 959 F.2d 292, 295 (D.C.Cir.1992) (citing Kerkam v. McKenzie, 862 F.2d 884, 889 (D.C.Cir.1989)); Armstrong v. District of Columbia, Civil Action No. 03-2598, 2005 WL 433448, at * 2 (D.D.C. Feb.24, 2005). Because of the parties' ability under the statute to supplement the administrative record with new evidence, hearing officer determinations under the IDEA are accorded "less deference than is conventional" in judicial review of agency decisions. Kerkam v. McKenzie, 862 F.2d at 887.

The question for this Court on the parties' cross-motions for summary judgment is whether there are any genuine issues as to any material fact and whether either party is entitled to judgment as a matter of law. See FED.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). "A fact is `material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are `irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir. 1989). Other than the question whether the Court should consider facts concerning events that occurred after the Hearing Officer issued his decision on September 14, 2006, there appear to be no disputes as to any material facts.

III. DISCUSSION

The IDEA provides that "[a] free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school." 20 U.S.C. § 1412(a)(1)(A). As the Hearing Officer noted, "DCPS has a fundamental obligation to provide FAPE to a child with a...