K.S. v. District of Columbia , 962 F. Supp. 2d 216 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
K.S., et al.,
Plaintiffs,
v. Civil Action No. 12-624 (JEB)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiffs Dudley and Elizabeth Snee, acting on behalf of their child K.S., have brought
this action challenging a hearing officer’s determination that the District of Columbia Public
Schools did not deny their daughter a free and appropriate education (FAPE) pursuant to the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Magistrate Judge
Alan Kay, having been referred the case, has issued a Report and Recommendation supporting
the administrative decision. Plaintiffs have now submitted their Objections to the Report.
Finding that the Report appropriately upholds the decision of the hearing officer, the Court will
accept it and grant summary judgment to the District.
I. Background
The Court will not reiterate the full factual background of the case, which is set out in
detail in the 16-page Report. A brief recap here will suffice. K.S. attended Janney Elementary
School, a D.C. public school, from pre-kindergarten through fourth grade. See A.R. 956
(Transcript of Due-Process Hearing). During first grade (2006-2007), she was diagnosed with a
learning disability, and an Individualized Education Program (IEP) was developed whereby she
was to receive special instruction in both general and special-education settings. See A.R. 50
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(DCPS IEP, 4/30/07). DCPS developed IEPs for K.S. for second (2007-2008) and third grade
(2008-2009) as well, under which she continued to receive similar services. See A.R. 71-73
(DCPS IEP, 3/6/08); A.R. 87-97 (DCPS IEP, 2/19/09). Concerned with their daughter’s
progress during third grade, K.S.’s parents had a neuropsychological evaluation conducted by a
private psychologist in January 2009. See A.R. 975 (Transcript of Due-Process Hearing); A.R.
76-86 (January 2009 Neuropsychological Evaluation). The psychologist recommended adding
specific services and instructional approaches to address K.S.’s needs. See A.R. 76-86 (January
2009 Neuropsychological Evaluation).
Based on this evaluation and the recommendations contained in the psychologist’s report,
K.S.’s parents sought additional services for their daughter during a planning meeting for her
fourth-grade (2009-2010) IEP. DCPS, however, proposed the same services that K.S. was then
receiving in third grade. See A.R. 87-97 (DCPS IEP, 2/19/09); A.R. 103-110 (DCPS IEP,
5/13/09). Despite her parents’ concerns, K.S. returned to Janney for fourth grade in the fall of
2009. The Snees, nonetheless, simultaneously applied for admission to the Lab School, a private
special-education school, for the next year. See A.R. 1013 (Transcript of Due-Process Hearing).
In the spring of 2010, a meeting was held at Janney to plan K.S.’s fifth-grade (2010-2011) IEP.
See A.R. 145-147 (Meeting Notes from 4/12/10 IEP Planning Session). The IEP was not
finalized at this time, however, because the parties determined that an additional speech-and-
language assessment should be conducted. See id.Following this assessment, the parties reconvened to discuss K.S.’s IEP on June 7, 2010.
DCPS proposed additional speech-and-language service hours for K.S. and further determined
that she should attend Janney and did not need a full-time special-education placement at a
private school. See A.R. 187-214 (DCPS IEP, 6/7/10); A.R. 215-216 (Prior Written Notice,
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6/7/10). Finding the District’s plan inadequate, K.S.’s parents rejected the proposed IEP and the
placement at Janney, informing DCPS that they were going to remove her from Janney, enroll
her at the Lab School, and pursuant to IDEA, seek reimbursement for her tuition. See A.R. 215-
216 (Prior Written Notice, 6/7/10); A.R. 1022 (Transcript of Due-Process Hearing).
K.S. began her fifth-grade year at Lab in the fall of 2010, receiving services in a full-time
special-education classroom. See A.R. 235-253 (Lab School Plan for Services, 11/2/10). In the
spring, Lab updated its plan to serve K.S. in sixth grade (2011-2012). Even though K.S. was not
currently enrolled at DCPS, a copy of that plan was provided to the District, and an IEP meeting
was held on June 1, 2011. At this meeting, DCPS proposed an increase in the special-education
services offered to K.S. See A.R. 347-360 (DCPS IEP, 6/1/11). Again, though, DCPS refused
K.S.’s parents’ request that she remain in a full-time special-education setting at the Lab School.
See A.R. 361-363 (Prior Written Notice, 6/7/11). Believing that DCPS’s proposed placement (at
Alice Deal Middle School) could not meet their daughter’s needs, they rejected the proposal and
re-enrolled their daughter at Lab for the 2011-2012 school year.
Alleging a denial of FAPE from DCPS’s failure to propose an appropriate program or
placement for the 2010-2011 and 2011-2012 school years, K.S.’s parents filed a due-process
complaint on December 9, 2011, seeking tuition reimbursement. See A.R. 413-424 (Due Process
Complaint, 12/9/11). A three-day due-process hearing was held in February 2012, and the
hearing officer issued a decision on March 3, finding that Plaintiffs had not proven that K.S. had
been denied a FAPE in either year. See A.R. 3-27 (HOD). As a result, she was not entitled to
reimbursement for tuition at the private school. See id.Following these administrative proceedings, Plaintiffs filed this action on April 19, 2012,
and the case was subsequently referred to Magistrate Judge Kay for full case management. Both
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sides thereafter filed Cross-Motions for Summary Judgment. On June 10, 2013, Magistrate
Judge Kay issued his Report recommending that Plaintiffs’ Motion be denied and Defendant’s
Motion be granted. Plaintiffs timely filed their Objections to the Report on June 27, and
Defendant filed its Reply on July 15.
II. Legal Standard
Under Federal Rule of Civil Procedure 72(b), once a magistrate judge has entered a
recommended disposition, a party may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3); see also Winston & Strawn LLP v. FDIC, 841 F. Supp. 2d 225,
228 (D.D.C. 2012) (court must conduct de novo review of objections to magistrate judge’s report
and recommendation). The district court may then “accept, reject, or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3).
III. Analysis
Plaintiffs object to the Report’s recommendation that this Court uphold the decision of
the hearing officer relating to 2010-2011 and 2011-2012. They claim the hearing officer erred in
finding that the District’s proposed IEPs for those years constituted a FAPE. As to the first year,
they maintain that the hearing officer failed to consider the evidence and testimony of the parents
and their experts when he determined that K.S.’s IEP was reasonably calculated to confer
educational benefits under IDEA. See Obj. at 7-12. They also challenge his findings for the
2011-2012 school year on two distinct grounds. First, they argue that he erred in determining
that the District was not required to provide an IEP to K.S. for that year because she was enrolled
in a private school. See id. at 1-7. Second, they contend that the hearing officer erred in finding
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that the plan DCPS did develop for K.S. was sufficient. See id. at 12-15. The Court will first
set forth some of IDEA’s basic principles and then address each of Plaintiffs’ objections.
A. Statutory Framework of IDEA
The purpose of IDEA is “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related services
designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). “Implicit” in IDEA’s
guarantee “is the requirement that the education to which access is provided be sufficient to
confer some educational benefit upon the handicapped child.” Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving funding under
IDEA, school districts are required to adopt procedures to ensure appropriate educational
placement of students with disabilities. See 20 U.S.C. § 1413.
1. Role of IEPs
In particular, school districts must develop a comprehensive plan, known as an
individualized education program, for meeting the special-educational needs of each student with
a disability. See § 1414(d)(2)(A). The plan is developed by the child’s IEP Team, a
multidisciplinary team consisting of the child’s parents and teachers, as well as educational
specialists, that meets and confers in a collaborative process to determine how best to
accommodate the needs of the student and provide a FAPE. See § 1414(d)(1)(B). The IEP must
be formulated in accordance with the terms of IDEA and “should be reasonably calculated to
enable the child to achieve passing marks and advance from grade to grade.” Rowley, 458 U.S.
at 204. IDEA also requires that children with disabilities be placed in the “least restrictive
environment” so that they can be educated in an integrated setting with children who do not have
disabilities to the maximum extent appropriate. See § 1412(a)(5)(A).
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The role of courts is to inquire:
First, has the State complied with the procedures set forth in the
Act? And second, is the individualized educational program
developed through the Act’s procedures reasonably calculated to
enable the child to receive educational benefits? If these
requirements are met, the State has complied with the obligations
imposed by Congress and the courts can require no more.
Id. at 206-07 (footnotes omitted). IDEA provides a “basic floor of opportunity” for students,
Rowley, 458 U.S. at 201, rather than “a potential-maximizing education.” Id. at 197 n.21; see
also Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir. 1991) (inquiry is not whether another
placement may be “more appropriate or better able to serve the child”) (emphasis in original);
Houston Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 583 (5th Cir. 2009) (IDEA does
not guarantee “the best possible education, nor one that will maximize the student’s educational
potential”; instead, it requires only that the benefit “‘cannot be a mere modicum or de minimis;
rather, an IEP must be likely to produce progress, not regression or trivial educational
advancement.’”) (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. ex rel. Barry F., 118
F.3d 245, 248 (5th Cir. 1997)). Consistent with this framework, “[t]he question is not whether
there was more that could be done, but only whether there was more that had to be done under
the governing statute.” Houston Indep. Sch. Dist., 582 F.3d at 590.
Courts have consistently underscored that the “appropriateness of an IEP is not a question
of whether it will guarantee educational benefits, but rather whether it is reasonably calculated to
do so”; thus, “the court judges the IEP prospectively and looks to the IEP’s goals and
methodology at the time of its implementation.” Report at 11 (citing Thompson R2-J Sch. Dist.
v. Luke P. ex rel. Jeff P., 540 F.3d 1143, 1148-49 (10th Cir. 2008)). Academic progress under a
prior plan may be relevant in determining the appropriateness of a challenged IEP. See Roark ex
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rel. Roark v. Dist. of Columbia, 460 F. Supp. 2d 32, 44 (D.D.C. 2006) (“Academic success is an
important factor ‘in determining whether an IEP is reasonably calculated to provide education
benefits.’”) (quoting Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003));
Hunter v. Dist. of Columbia, No. 07-695, 2008 WL 4307492, at *9 (D.D.C. Sept. 17, 2008)
(citing cases with same holding).
When assessing a student’s progress, courts should defer to the administrative agency’s
expertise. See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (“Because
administrative agencies have special expertise in making judgments concerning student progress,
deference is particularly important when assessing an IEP’s substantive adequacy.”). This
deference, however, does not dictate that the administrative agency is always correct. See Cnty.
Sch. Bd. of Henrico Cnty., Virginia v. Z.P. ex rel. R.P., 399 F.3d 298, 307 (4th Cir. 2005) (“Nor
does the required deference to the opinions of the professional educators somehow relieve the
hearing officer or the district court of the obligation to determine as a factual matter whether a
given IEP is appropriate. That is, the fact-finder is not required to conclude that an IEP is
appropriate simply because a teacher or other professional testifies that the IEP is
appropriate. . . . The IDEA gives parents the right to challenge the appropriateness of a
proposed IEP, and courts hearing IDEA challenges are required to determine independently
whether a proposed IEP is reasonably calculated to enable the child to receive educational
benefits.”) (internal citations omitted).
An IEP, nevertheless, need not conform to a parent’s wishes in order to be sufficient or
appropriate. See Shaw v. Dist. of Columbia, 238 F. Supp. 2d 127, 139 (D.D.C. 2002) (IDEA
does not provide for an “education . . . designed according to the parent’s desires”) (citation
omitted). While parents may desire “more services and more individualized attention,” when the
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IEP meets the requirements discussed above, such additions are not required. See, e.g., Aaron P.
v. Dep’t of Educ., Hawaii, No. 10-574, 2011 WL 5320994, at *32 (D. Hawaii Oct. 31, 2011)
(while “sympathetic” to parents’ frustration that child had not progressed in public school “as
much as they wanted her to,” court noted that “the role of the district court in IDEA appeals is
not to determine whether an educational agency offered the best services available”); see also
D.S. v. Hawaii, No. 11-161, 2011 WL 6819060, at *10 (D. Hawaii Dec. 27, 2011)
(“[T]hroughout the proceedings, Mother has sought, as all good parents do, to secure the best
services for her child. The role of the district court in IDEA appeals, however, is not to
determine whether an educational agency offered the best services, but whether the services
offered confer the child with a meaningful benefit.”).
2. Reimbursement for Private School Placement
In implementing the IEP, “[i]f no suitable public school is available, the school system
must pay the costs of sending the child to an appropriate private school.” Reid ex rel. Reid v.
Dist. of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations omitted).
However, “if there is an ‘appropriate’ public school program available . . . the District need not
consider private placement, even though a private school might be more appropriate or better
able to serve the child.” Jenkins, 935 F.2d at 305 (emphasis in original); see also A.E. ex rel. Mr.
and Mrs. E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 221 (D. Conn. 2006) (IDEA “does
not require a school district to pay for a private school education simply because that opportunity
would be ideal for the student. It requires only that a school board provide each student a FAPE,
that is, a basic opportunity to receive an educational benefit. Because [the student] would have
received that basic opportunity . . . , the Board is not required to reimburse the parents for the
cost of what may have been an even better educational opportunity for [the student].”).
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Finally, “parents are not required to wait and see a proposed IEP in action before
concluding that it is inadequate and choosing to enroll their child in an appropriate private
school.” N.S. ex rel. Stein v. Dist. of Columbia, 709 F. Supp. 2d 57, 72 (D.D.C. 2010) (citing
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009)). Parents who unilaterally place their child
in a private school without the agreement of the school district, however, “do so at their own
risk, and are entitled to reimbursement only if a court concludes that the placement approved by
the school officials violates the IDEA and that the private school placement is proper under the
IDEA.” Roark, 460 F. Supp. 2d at 45.
3. Procedural Posture of Case
Parents who object to their child’s “identification, evaluation, or educational placement”
are entitled to an impartial due-process hearing, see §§ 1415(b)(6), (f)(1), at which they have a
“right to be accompanied and advised by counsel” and a “right to present evidence and confront,
cross-examine, and compel the attendance of witnesses.” § 1415(h). In the District, a qualified,
impartial hearing officer conducts the due-process hearing in accordance with the Act. See 5-E
D.C. Mun. Regs. § 3030. Parents “aggrieved by” a hearing officer’s findings and decision may
bring a civil action in either state or federal court. See § 1415(i)(2); 5-E D.C. Mun. Regs. §
3031.5. The district court has remedial authority under the Act and broad discretion to grant
“such relief as the court determines is appropriate.” § 1415(i)(2)(C)(iii).
Although styled Motions for Summary Judgment, the pleadings in this case more
accurately seek the Court’s review of an administrative decision. The reviewing 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.” § 1415(i)(2)(C). In a review of a Hearing Officer
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Decision (HOD), the burden of proof is always on the party challenging the administrative
determination, who “‘must at least take on the burden of persuading the court that the hearing
officer was wrong.’” Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884, 887
(D.C. Cir. 1989)).
The Supreme Court has held that IDEA’s preponderance-of-the-evidence standard of
review does not authorize unfettered de novo review. See Rowley, 458 U.S. at 206 (“Thus the
provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no
means an invitation to the courts to substitute their own notions of sound educational policy for
those of the school authorities which they review.”). Courts must give administrative
proceedings “due weight,” id., and “‘[f]actual findings from the administrative proceedings are
to be considered prima facie correct.’” Roark, 460 F. Supp. 2d at 38 (quoting S.H. v. State-
Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). The statute,
however, also suggests “less deference than is conventional in administrative proceedings,” Reid,
401 F.3d at 521 (internal quotation marks omitted), since the district court is allowed to hear
additional evidence at the request of a party. See § 1415(i)(2)(C)(ii). When no additional
evidence is introduced in a civil suit seeking review of a HOD, a motion for summary judgment
operates as a motion for judgment based on the evidence comprising the record. Dist. of
Columbia v. Ramirez, 377 F. Supp. 2d 63, 67 (D.D.C. 2005).
B. 2010-2011 School Year
As noted above, the first school year at issue here is K.S.’s fifth-grade year, 2010-2011.
During the planning process for that year, while K.S. was still in fourth grade at Janney, her
parents sought additional services based on a recent speech-and-language assessment that had
been conducted by a private psychologist. See A.R. 153-174 (Speech and Language
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Assessment, 5/19/10); A.R. 215-216 (Prior Written Notice, 6/7/10). DCPS did authorize some
additional services; however, it maintained that K.S. should remain at Janney and did not need a
full-time special-education placement. See A.R. 187-214 (DCPS IEP, 6/7/10); A.R. 215-216
(Prior Written Notice, 6/7/10). Finding the District’s proposed IEP inadequate, K.S.’s parents
rejected the plan and informed DCPS that they were going to enroll their daughter at the Lab
School and seek reimbursement for her tuition. See A.R. 215-216 (Prior Written Notice, 6/7/10);
A.R. 1022 (Transcript of Due-Process Hearing).
Plaintiffs now contend that the hearing officer – and, subsequently, the Magistrate
Judge – erred in finding that K.S. had been provided with a FAPE even though the District
refused to offer her a full-time special-education placement. Specifically, they argue that the
hearing officer “engaged in an extreme departure from the regular fact-finding process” by
ignoring the extensive evidence presented by the parents at the hearing as to their daughter’s
needs and the IEP’s inability to address those needs. See Obj. at 8, 9-12; see also Pls.’ Mot. for
Summary Judgment at 15-31. The Court disagrees.
Plaintiffs discuss at length the specific testimony and documentary evidence presented at
the due-process hearing in support of their argument that K.S. had not made sufficient progress
while attending Janney and thus was denied a FAPE when private placement was rejected. See
Obj. at 7-12. For example, they contend that the hearing officer:
• Ignored evidence from Lab staff that K.S.’s assessed instructional levels
were at the same level as they were a year earlier at Janney Elementary,
see Obj. at 8 (citing A.R. 322-23 (Lab School Plan for Services, 5/19/11);
A.R. 123 (Teacher Evaluation, 12/18/09));
• “[D]iscounted the objective deficits in performance and scores as recorded
in the December, 2009 DCPS teacher reports on K.S.’s instructional
levels,” Obj. at 9; and
• “[C]ompletely ignored” Plaintiffs’ expert testimony, including that of
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o James Ross, K.S.’s speech and language pathologist at Lab,
who was qualified as an expert and discussed K.S.’s
significant speech and language needs and the challenges of
serving those needs in a larger mainstream class, see Obj. at
10 (citing A.R. 874, 877, 885-87 (Transcript of Due-
Process Hearing));
o Christine Chang, an expert in occupational therapy
services, who testified that K.S.’s classroom needs to have
Occupational Therapy for her to be successful, see Obj. at
10-11 (citing A.R. 923, 938, 941 (Transcript of Due-
Process Hearing)); and
o Karen Duncan, Director of Education at Lab, who testified
regarding K.S.’s needs and the necessity that she be
educated in a full-time special education program.
See Obj. at 11.
Defendant responds that the hearing officer adequately considered that evidence and
correctly determined that K.S. had in fact made progress under her previous IEP. See Reply at
10-12. Her progress, it contends, was demonstrated through:
• Test scores indicating she was making progress in reading, written
language, oral language, and math;
• Test scores showing that she was reading at a 4.2 grade
equivalency with 94% accuracy;
• Individual teacher comments on her report card (and teacher
testimony) indicating she made progress; and
• Reports documenting K.S.’s progress toward goals in her IEP.
See Reply at 12 (citing Report at 12-13). Defendant, moreover, maintains that the hearing
officer did not “ignore” the parents’ evidence, but carefully weighed it and explained why certain
evidence was not persuasive. The District notes that
• Two-thirds of the 39 factual findings reference the testimony or
records provided by Plaintiffs, see Reply at 10 (citing A.R. 4-14
(HOD));
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• The hearing officer found the testimony of Plaintiffs’ witness Ms.
Mounce unconvincing and instead credited the testimony of K.S.’s
teachers at Janney Elementary, see id. at 11; and
• The hearing officer correctly disregarded the Lab School’s
informal assessments because they employed different standards
and there was no way to compare them to previous assessments.
See id.
The Court believes the Report correctly upheld the hearing officer’s determination that
K.S. had been offered a FAPE for the 2010-2011 school year. See Report at 13. Consistent with
IDEA’s requirements, DCPS constructed an individualized program tailored to meet K.S.’s
educational needs. See Hailey M. ex rel. Melinda B. v. Matayoshi, No. 10-733, 2011 WL
3957206, at *26 (D. Hawaii Sept. 7, 2011) (finding student had been offered a FAPE in
compliance with IDEA even though “parties appear[ed] divided by honest differences of
opinion” with respect to services student should receive). In crafting its plan to serve K.S.,
DCPS offered to provide “sufficient support services to permit the child to benefit educationally
from that instruction,” Rowley, 458 U.S. at 203, including reading, writing, mathematics, and
speech-pathology services in both general-educational and special-educational settings. See
A.R. 187-214 (DCPS IEP, 6/7/10). This plan, moreover, was a result of ongoing efforts to assess
K.S.’s needs and ensure that those needs were being met, including a speech-and-language
assessment that was incorporated into K.S.’s IEP for the year. See A.R. 145-46 (MDT Meeting
Notes, 6/7/10); A.R. 168 (Speech Assessment). The hearing officer also appropriately
considered IDEA’s and the District’s requirement that K.S. be educated in the “least restrictive
environment.” See Report at 12 (citing 20 U.S.C. § 1412(a)(5)); see also 5-E D.C. Mun. Regs. §
3011.1.
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While the Report acknowledged that the services sought by K.S.’s parents may have
more comprehensively served K.S., it correctly observed that the “‘Cadillac’ of educational
treatment” is not required by IDEA. See Report at 12, 13. Instead, the Report looked to whether
K.S. would have received some educational benefit in the general-education setting (even if her
potential may not have been maximized). It found evidence of such a benefit, including:
• K.S.’s scores on the WJ-III standardized test and the F&P reading
test that showed she was making progress, see id.;
• Testimony from K.S.’s fourth-grade teachers regarding her
progress, see id.;
• K.S.’s progress on IEP goals, even if she had only mastered two
of nine goals, see id.; and
• Testimony from K.S.’s teacher at Janney that she was well
socialized and had a happy disposition.
See id. at 12-13. The Report further appropriately noted that “[w]here evidence of educational
appropriateness is mixed, and a court bases its ruling on same record as before the hearing
officer,” courts should defer to the hearing officer. See id. at 13 (quoting Schoenbach v. Dist. of
Columbia, 309 F. Supp. 2d 71, 82 (D.D.C. 2004)).
Finally, while Plaintiffs contend that the hearing officer’s failure to explain why he was
discounting the testimony of their experts merits remand, the Court cannot concur. Because he
otherwise provided substantial justification for his determination that K.S. was receiving
sufficient educational benefit at Janney, no remand for further elaboration is warranted.
As the Court finds that K.S. was offered sufficient educational benefit under the District’s
proposed IEP, she was not denied a FAPE for 2010-11, and Plaintiffs are thus not entitled to
reimbursement for K.S.’s fifth-grade private-school placement.
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C. 2011-2012 School Year
On March 18, 2011, while K.S. was enrolled at the Lab School, DCPS volunteered to
review the previous year’s IEP (which K.S.’s parents had rejected) and develop a new plan. See
A.R. 274 (DCPS Letter) (“Last spring, DCPS developed an IEP for [K.S.] prior to her
withdrawal from DCPS. That IEP will expire on June 6 of this year. If you would like DCPS to
conduct an annual review of [K.S.’s] current IEP and develop a new IEP for the 2011-2012
school year, we would like to complete this process while her current educational instructors and
related services providers are available.”). On June 1, 2011, the IEP meeting was convened and
included K.S.’s parents, numerous individuals from the Lab School, and representatives from
DCPS. See A.R. 347-360 (DCPS IEP, 6/1/11). Prior to this meeting, the Lab School had
developed its own service plan for the next school year requiring full-time special education,
which K.S.’s mother had signed. See A.R. 314-324 (Lab School Plan for Services, 5/19/11); see
also A.R. 325-343 (Student Goals & Objectives). These documents were shared with DCPS in
advance of the June 1 meeting, and DCPS incorporated the Goals and Objectives from the Lab
School plan into its proposed IEP. See A.R. 344 (Letter to DCPS enclosing Lab School plan);
A.R. 347-360 (DCPS IEP, 6/1/11).
Table A identifies the services in the proposed IEP, compared to the services that K.S.
had been offered (and refused) in the previous school year.
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Table A: Hours of Services / Week
2010-2011 2011-2012
6/7/10 IEP 6/1/11 IEP
Service Setting (A.R. 197) (A.R. 357)
Outside General Education
Reading Outside General Education 1 hr 2 hr
Written Expression Outside General Education .5 hr 1 hr
Speech-Language Pathology Outside General Education .75 hr .75 hr
Total 2 hr 15 mins 3 hr 45 mins
General Education
Reading General Education 1 hr 2 hr
Written Expression General Education 1 hr 2 hr
Mathematics General Education 2 hr 2 hr
Speech-Language Pathology General Education .75 hr .75 hr
Total 4 hr 45 mins 6 hr 45 mins
Other
Consultation Services: Speech-
Language Pathology n/a .5 hr .5 hr
While the proposed IEP increased services K.S. would receive both inside and outside of the
general-education setting, it did not include full-time special education. See A.R. 314-324 (Lab
School Plan for Services, 5/19/11); A.R. 347-360 (DCPS IEP, 6/1/11). In other words, the
District recommended that K.S. enroll at Alice Deal Middle School (since Janney ends after fifth
grade), not remain at Lab. As with the previous year’s IEP, K.S.’s parents refused the District’s
plan and kept her at Lab. See A.R. 413-424 (Due Process Complaint, 12/9/11).
Plaintiffs raise two challenges to the Report’s recommendation to affirm the hearing
officer’s decisions as to the 2011-2012 school year. First, they charge that he erred in
concluding that the District was not required to develop an IEP for parentally placed private-
school children like K.S. Second, Plaintiffs complain of his alternative finding that the District
had nonetheless developed an IEP that was reasonably calculated to provide K.S. with sufficient
educational benefit. See A.R. 24-25 (HOD). Magistrate Judge Kay affirmed both findings. See
Report at 13-14. Because the Court finds an appropriate IEP was in fact developed by DCPS, it
need not resolve the threshold issue of whether DCPS was required to create one.
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Plaintiffs are correct in noting that the hearing officer’s discussion of the appropriateness
of this IEP is extremely limited: “I find that DCPS’ June 1, 2011 IEP did not violate the IDEA.
As with DCPS’ proposed June 7, 2010 IEP, the June 1, 2011 IEP continued all of the services
provided to student in the successful May 13, 2009 IEP.” A.R. 25 (HOD). After noting that
K.S.’s services were being increased under the proposed IEP, the hearing officer concluded that
“Petitioners have not shown that this level of Specialized Instruction and Related Services was
not reasonably calculated to provide some educational benefit to Student.” Id.Such a cursory discussion, Plaintiffs contend, fails to recognize that “a student’s
educational needs may change from year to year,” and “parents should be allowed to present, and
a Court or Hearing Officer must consider, evidence of a student’s differing need from one year to
the next when crafting appropriate relief.” Obj. at 14. While this may well be true, Plaintiffs
never provided any evidence of a significant change in K.S.’s needs. Instead, they rest their
challenge on the same argument they made with respect to the previous year: that K.S.’s needs
could only be met in a full-time special-education setting. Id. at 15. By doubling down on the
identical argument – an argument that this Court has rejected, see Section III.B, supra – and
failing to demonstrate any material change in K.S.’s needs for the 2011-2012 school year,
Plaintiffs have failed to carry their burden on this point. They cannot show the hearing officer
erred in finding DCPS could meet her needs at Deal. Had the Court found that the previous
year’s plan was inappropriate – or that K.S.’s needs had grown – then it might well follow that
the plan for the second year, which proposed similar services, would also be inadequate. That is
not the case, however.
The new plan, moreover, did not simply repeat the previous IEP, but instead offered
substantial increases in services. See Table A, supra. As with the 2010-2011 year, DCPS
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endeavored to provide K.S. with some educational benefit for the 2011-2012 school year: it
convened an IEP meeting, incorporated Goals and Objectives from the Lab School’s plan, and
developed a reasonable service plan to aid K.S. in attaining those goals. See A.R. 14 (HOD).
The Court concludes that the proposed IEP was sufficient. Plaintiffs, therefore, are not entitled
to reimbursement for K.S.’s sixth-grade tuition at the Lab School either.
IV. Conclusion
For the reasons stated herein, the Court will issue a contemporaneous Order adopting
Magistrate Kay’s June 10, 2013, Report and Recommendation denying Plaintiffs’ Motion and
granting Defendant’s.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 26, 2013
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