Eley v. Dist. of Columbia

• Decision Date: 24 August 2012
• Docket Number: Civil Action No. 11-309 (BAH/JMF)
• Parties: WILMA ELEY, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

WILMA ELEY, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 11-309 (BAH/JMF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DATE: August 24, 2012

Judge Beryl A. Howell

MEMORANDUM AND ORDER

The plaintiff, Wilma Eley, seeks reimbursement for tuition costs she incurred to educate her disabled son, R.E., at a private school due to the alleged failure of the defendant, District of Columbia, to provide R.E. with free appropriate public education ("FAPE"), as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. The plaintiff also seeks to place R.E. at the private school in question, The Learning Community International at School Finders, on a permanent basis.

Pending before the Court are the Plaintiff's Motion for Summary Judgment, ECF No. 11, and the Defendant's Cross Motion for Summary Judgment, ECF No. 13. Magistrate Judge John Facciola issued a Report and Recommendation, recommending that the plaintiff's motion be granted in part and denied in part, and that the defendant's motion be denied. Magistrate Judge Facciola also recommended that the matter be remanded to the hearing officer to determine whether the reimbursement sought by the plaintiff is reasonable. The Report and Recommendation warned that failure to file a timely objection to it could waive the right toappeal an order of the District Court adopting the recommendations. No objection to the Report and Recommendation has been filed, the time to file such an objection has lapsed, see Local Civil Rule 72.3(b), and thus all objections are deemed to be waived. See Thomas v. Arn, 474 U.S. 140, 149-51 (1985). Accordingly it is hereby

ORDERED that Magistrate Judge Facciola's Report and Recommendation, ECF No. 20, is adopted in full; and it is further

ORDERED that Plaintiff's Motion for Summary Judgment, ECF No. 11, is GRANTED in part and DENIED in part; and it is further

ORDERED that the Defendant's Cross Motion for Summary Judgment, ECF No. 13, is DENIED; and it is further

ORDERED that this matter is REMANDED to the hearing officer solely for the purpose of determining whether the $2,850 sought by the plaintiff as reimbursement is appropriate and reasonable.

REPORT AND RECOMMENDATION

Currently pending and ready for resolution are Plaintiff's Motion for Summary Judgment ("Pl.'s Mem.), ECF No. 11, and Defendant's Opposition to Plaintiff's Motion for Summary Judgment, and the Defendant's Cross-Motion for Summary Judgment ("Def.'s Mem."), ECF No. 13. For the following reasons, I recommend that plaintiff's motion be granted in-part and denied in-part, that defendant's motion be denied, and that the matter be remanded to the hearing officer to determine whether the reimbursement sought is reasonable.

BACKGROUND

I. FINDINGS OF FACTS

There is no genuine issue as to the following material facts:

1. For the 2009-10 school year, plaintiff's child, R.E., attended the eighth grade at Community Academy Public Charter School ("CAPCS"), which is its own local education agency. Administrative Record ("AR") at 6, 83, ECF No. 9.

2. R.E. suffers from multiple disabilities, including a non-verbal learning disability, cerebral palsy, impaired motor skills, and an adjustment disorder. Id. at 7; Pl.'s Statement of Material Facts Not in Dispute ("Pl.'s Statement of Facts") at 1, ECF No. 11-1.

3. An Individualized Education Plan ("IEP") was developed on August 20, 2009 for R.E. AR at 7.

4. Present at this IEP development meeting were plaintiff, R.E.'s educational advocate, a related services provider, a psychologist, an occupational therapist, a special educator, a supervisor of special education, an additional related services provider, an adaptive physical education teacher, a special education coordinator, a special education specialist, and a compliance case manager. Id. at 8.

5. The August 2009 IEP provided for: 1) 26 hours per week of specialized instruction outside the general education setting; 2) 60 minutes per week of adapted physical education outside the general education setting; 3) 120 minutes per week of behavioral support services outside the general education setting; 4) speech language pathology for 90 minutes per week outside of the general education setting; 5) 27.5 hours per week of school health and school nursing outside the general education setting; 6) 30 minutes per day of occupational therapy; and 7) 45 minutes per day of speech language pathology. Id.6. The IEP also provided that the student receive extended school year services, four hours per day of specialized instruction, and one hour per day each of the following: behavioral support services, occupational therapy, and speech language pathology from June 29 through July 24, 2009. Id. at 9-10.

7. Pursuant to the August 2009 IEP, R.E. was placed at Prospect Learning Center, a school in the District of Columbia Public Schools ("DCPS") system. Id. at 135. Plaintiff voluntarily removed R.E. from Prospect and enrolled him in CAPCS. Id.

8. CAPCS only serves students through the eighth grade, and R.E. matriculated out at the end of the 2009-10 school year. Pl.'s Statement of Facts at 2.

9. On May 28, 2010, plaintiff filed a due process complaint against DCPS alleging, among other things, that DCPS had failed to provide an appropriate placement for R.E. for the 2010-11 school year. AR at 83.

10. On August 17, 2010, plaintiff enrolled R.E. as a "non-attending" student at his neighborhood public school, Ron Brown. Id. at 10, 80-81.

11. The 2010-11 school year for R.E. began on August 23, 2010. Id. at 7. DCPS's 2010-11 school year also began on August 23, 2010. Id.

12. On September 6, 2010, plaintiff enrolled R.E. at School Finders, a private school. Id. at 11; Pl.'s Statement of Facts at 3.

13. R.E.'s annual IEP review meeting for the 2010-11 school year was not held prior to the start of the 2010-11 school year. AR at 10.

14. When plaintiff filed her due process complaint in the instant case on September 13, 2010, DCPS was 23 days late in preparing a new IEP for R.E. Id. at 21.

15. On October 7, 2010, DCPS provided plaintiff parent's counsel with a "prior written notice" document identifying the Monroe School ("Monroe"), as placement for R.E. Id. at 6-7, 144.

16. Prior to October 7, 2010, DCPS had not identified a school placement, or a location at which R.E.'s IEP would be implemented. Id. at 7.

II. THE HEARING OFFICER'S DETERMINATION

The hearing officer denied plaintiff's requests for both reimbursement and prospective funding on the grounds that plaintiff had failed to demonstrate a remediable violation of the IDEA. Id. at 28. The officer used the three-pronged test outlined in School Committee of Town of Burlington v. Department of Education of Massachusetts ("Burlington"), 471 U.S. 359 (1985), i.e., 1) whether there has been a denial of FAPE; 2) whether the private placement by the parents was appropriate; and 3) where the equities lie, and found that plaintiff's claims failed both the first and third prongs. AR at 13.

Considering the first prong—whether the school has denied the student a free and appropriate education ("FAPE"), or otherwise violated the Individuals with Disabilities Education Act ("IDEA")—the hearing officer determined that a full-time special education placement was actually provided for, and thus could not, as plaintiff alleged, serve as grounds for a violation of IDEA. Id. at 17. According to the hearing officer, the August 20, 2009 IEP contained a full-time special education placement, as "placement" means merely "core components of educational program," which is "separate and distinct from the location at which services will be delivered." Id. Thus, the failure to specify a location was not a violation of IDEA. Id. Furthermore, the hearing officer identified that the location was specified prior to the due process hearing, and thus the "key problem" was already "remedied." Id. at 19.

The hearing officer allows that failing to review and update the IEP at least annually did constitute a procedural violation under IDEA § 614(d)(4)(A)(I) (codified at 20 U.S.C. § 1414(d)(4)(A)(I)).¹ AR at 19. The officer found, however, that the record did not indicate the 23-day delay either impeded the child's right to FAPE or impaired the parent's right to participate. Absent such a showing, the hearing officer held the violation allowed no relief. Id. at 22.

The private school placement was deemed appropriate, and the second prong of Burlington—whether the placement was appropriate—satisfied, according to the hearing officer. Id. Even were FAPE to have been denied, rendering both the first and second prongs satisfied, the hearing officer nevertheless concluded that the equities, the third Burlington prong, favored DCPS. Id. The hearing officer stressed that the plaintiff "intended to deceive," "provided only evasive answers," and "intentionally made [R.E.'s enrollment] unclear" in such an "unreasonable" manner that it "lessens the seriousness of the offense." Id. The officer found both the first and third prong of the Burlington test failed, and denied both of plaintiff's requests for relief. Id. at 13.

DISCUSSION

III. STANDARD OF REVIEW

The parties have cross-moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, which provides for entry of summary judgment "if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Where, as here, neither party seeks to present additional evidence, a motion for summary judgment "operates as a motion for judgment based on the evidence comprising therecord." Phillips ex rel. T.P. v. District of Columbia, 736 F. Supp. 2d 240, 246 (D.D.C. 2010); Parker v. Friendship Edison Pub. Charter Sch., 577 F. Supp. 2d 68, 72 (D.D.C. 2008).

In reviewing a hearing officer's decision in an IDEA case, the court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the...