Z.B. v. District of Columbia

33UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Z.B., et al.,
Plaintiffs,
v. Civil Action No. 15-1037 (ESH)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiffs, a minor child (“Z.B.”) and her parents, bring this action against defendant
District of Columbia (“the District”). The gravamen of their complaint is that the District of
Columbia Public Schools (“DCPS”) failed to provide Z.B. with a Free Appropriate Public
Education (“FAPE”), as required by the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. §§ 1400 et seq., because DCPS failed to place Z.B. in a full-time special education
program. Based on this alleged violation of the IDEA, plaintiffs argue that they acted
appropriately in unilaterally deciding to move their child out of the public elementary school that
she had attended to a private school some two months after the first Individualized Education
Program (“IEP”) was prepared in June 2014, and second, that the January 2015 IEP erroneously
concluded that she did not need a full-time special education program, but that the special
education services available at DCPS were sufficient to meet her needs. The issues before the
Court are: did defendant violate the IDEA by providing deficient IEPs that erroneously
concluded that Z.B.’s special education needs could be met within DCPS, and if so, should the
DCPS be ordered to reimburse plaintiffs for the costs incurred in sending Z.B. to a specialized
private day school for the 2014-2015 and 2015-2016 school years. Based on the administrative
record, the Court concludes that plaintiffs are not entitled to the reimbursement that they seek.
BACKGROUND
I. IDEA FRAMEWORK
“Under the Individuals with Disabilities Education Act (IDEA), every child with a
disability in this country is entitled to a ‘free appropriate public education,’ or FAPE.” Leggett v.
District of Columbia, 793 F.3d 59, 62 (D.C. Cir. 2015) (quoting 20 U.S.C. § 1400(d)(1)(A)).1
“To guarantee that no child with a disability misses out on the education the Act promises, and to
ensure, in turn, that the education offered is ‘appropriate,’ [the] IDEA requires that school
officials develop a comprehensive strategy, known as an ‘individualized education program,’ or
IEP, tailored to the student’s unique needs.” Id. at 63 (quoting § 1414(d)(1)(A)).2 School
districts are required to “have an IEP in place for each student with a disability ‘[a]t the
beginning of each school year.’” Id. at 63 (quoting § 1414(d)(2)(A)).
In developing an IEP for a particular child, a school’s IEP team must “(A) review
1
The term “free appropriate public education” is defined as “special education and related
services that—
(A) have been provided at public expense, under public supervision and
direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and
(D) are provided in conformity with the individualized education program
required under section 1414(d) of this title.”
20 U.S.C.A. § 1401(9).
2
The term “individualized education program” is defined as “a written statement for each child
with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of
this title.” 20 U.S.C. § 1401(14).
2
existing evaluation data on the child, including--(i) evaluations and information provided by the
parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-
based observations; and (iii) observations by teachers and related services providers . . . .” 20
U.S.C.A. § 1414(c)(1). A completed IEP must include: “a statement of the child’s present levels
of academic achievement and functional performance”; “a statement of measurable annual goals,
including academic and functional goals”; and “a statement of the special education[3] and
related services[4] . . . to be provided to the child, or on behalf of the child.” 20 U.S.C. §
1414(d)(1)(A). In addition, the IDEA requires that all services be provided in the “least
restrictive environment” appropriate for the student. 20 U.S.C. § 1412(a)(5)(A).5
“‘If no suitable public school is available, the [school system] must pay the costs of
3
“The term ‘special education’ means specially designed instruction, at no cost to parents, to
meet the unique needs of a child with a disability . . . .” 20 U.S.C. § 1401(29).
4
“The term ‘related services’ means transportation, and such developmental, corrective, and
other supportive services (including speech-language pathology and audiology services,
interpreting services, psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services, school nurse services designed to enable a
child with a disability to receive a free appropriate public education as described in the
individualized education program of the child, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services, except that such medical
services shall be for diagnostic and evaluation purposes only) as may be required to assist a child
with a disability to benefit from special education, and includes the early identification and
assessment of disabling conditions in children.” 20 U.S.C. § 1401(26)(A).
5
In full, § 1412(a)(5)(A) provides:
To the maximum extent appropriate, children with disabilities, including children
in public or private institutions or other care facilities, are educated with children
who are not disabled, and special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment occurs only
when the nature or severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A).
3
sending the child to an appropriate private school.’” Reid ex rel. Reid v. District of Columbia,
401 F.3d 516, 519 (D.C. Cir. 2005) (quoting Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir.
1991)). In addition, “[a]lthough Congress envisioned that children with disabilities would
normally be educated in ‘the regular public schools or in private schools chosen jointly by school
officials and parents,’ it provided that parents who believe that their child’s public school system
failed to offer a free appropriate public education—either because the child’s IEP was inadequate
or because school officials never even developed one—may choose to enroll the child in a
private school that serves her educational needs.” Leggett, 793 F.3d at 63 (quoting Florence Cty.
Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993)). A unilateral decision to remove
a child from public school does not preclude reimbursement, but parents who take that step “do
so at their own financial risk.” Sch. Comm. of Town of Burlington. v. Dep’t of Educ., 471 U.S.
359, 374 (1985); Florence Cty., 510 U.S. at 15. “[I]f the courts ultimately determine that the IEP
proposed by the school officials was appropriate, the parents would be barred from obtaining
reimbursement” because the student would have been offered a FAPE. Sch. Comm., 471 U.S. at
374; see also 20 U.S.C. § 1412(10)(C)(ii)); 34 C.F.R. § 104.33(c)(4). Moreover, even if the
student was denied a FAPE, parents must establish that the private school placement is “proper
under the [IDEA].” Florence Cty., 510 U.S. at 15; see Forest Grove Sch. Dist. v. T.A., 557 U.S.
230, 247 (2009). Once those two hurdles have been cleared, the reviewing court must determine
if “the equities weigh in favor of reimbursement—that is, the parents did not otherwise act
unreasonabl[y].” Leggett, 793 F.3d at 67; see also Sch. Comm., 471 U.S. at 374 (“equitable
considerations are relevant in fashioning relief”).
II. FACTUAL BACKGROUND
Starting in pre-kindergarten, Z.B. attended Hearst Elementary School (“Hearst”), a D.C.
public school. Hearst was not Z.B.’s in-boundary school, but the school her parents selected
4
through the DCPS school lottery. In March 2013, towards the end of second grade, Z.B.’s
parents brought her to Children’s National Medical Center (“Children’s) for a psychiatric
evaluation due to concerns about her “inability to focus.” (AR 76.) She was diagnosed with
“attention deficit hyperactivity disorder combined type.” (AR 77.) Shortly thereafter, on May 1,
2013, Z.B.’s therapist, Katherine Rettke, a licensed clinical social worker at Children’s, asked
DCPS to consider adopting a “[Section] 504 plan”6 in order to help Z.B. function better at
school. (AR 81.) She suggested a number of possible interventions that Z.B.’s teachers could
use in order to “reinforce on task behaviors and allow for frequent breaks to reduce some of her
hyperactive symptoms.” (AR 81.) She also opined that “IEP testing may also be indicated in the
future in order to rule out any learning disabilities if improvement is not seen with 504 supports.”
(AR 81-82.) In May 2013, Hearst developed a 504 plan for Z.B., which provided that she would
receive preferential seating in class, be tested in a distraction-free environment, and receive
additional time on tests. (AR 118, 222.) In June 2013, Z.B.’s parents approved the 504 plan,
and it was implemented when Z.B. started third grade in August 2014. (AR 85, 222.)
During the spring of Z.B.’s third grade year, due to ongoing social and academic issues,
Z.B.’s parents arranged for a neuropsychological evaluation of Z.B. by a licensed psychologist at
Children’s, Jacqueline Sanz, Ph.D. (AR 117.) Dr. Sanz evaluated Z.B. on April 14, 2014, and
provided a final report to Z.B.’s parents on May 12, 2014. (AR 117.) Dr. Sanz reached the
following diagnostic conclusions: (1) that “inattention, impulsivity, and executive dysfunction”
6
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., prohibits programs
funded by the federal government, from discriminating on the basis of disability. A Section 504
Plan “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 (D.D.C. July 20, 2016).
5
were “concerns” and that Z.B. met the “DMS-V diagnostic criteria for Attention
Deficit/Hyperactivity Disorder – Combined Presentation”; (2) that “math skills and written
expression” were “areas of weakness” and that her “problems [we]re consistent with a DSM-V
diagnosis of a Specific Learning Disorder, with Impairment in Mathematics, and a Specific
Learning Disorder, with Impairment in Written Expression”; and (3) that “reports of social-
emotional development indicated problems with anxiety, depressed mood, oppositional behavior,
and social skills.” 7 (AR 119-21.) As summarized by Dr. Sanz:
Z.B.’s neurocognitive profile presents a number of risks. In particular, Z.B.’s
weaknesses in attention and executive functioning place her at increased risk for
academic difficulties, especially as demands continue to rise in the coming years.
This is especially true in fourth and fifth grade, when demands on executive skills
increase dramatically, while structures and supports found in earlier elementary
classrooms are faded away. . . . In other words, without additional support, Z.B.
is at risk for falling behind grade level in multiple areas. Lastly, Z.B.’s anxiety
and mood dysregulation, in combination with executive dysfunction, leaves her
susceptible to becoming quickly overwhelmed and may further contribute to
academic challenges. This combination of anxiety, mood dysregulation, and
executive dysfunction may also contribute to her ability to engage socially with
others, and has the potential to impact Z.B.’s self-esteem. Despite these risks,
Z.B. has a number of strengths, and with additional supports is expected to do
quite well.
(AR 120-21 (emphasis added).) Accordingly, Dr. Sanz recommended (1) that Z.B. be
“provid[ed] accommodations via an Individualized Education Plan (IEP) as a student with a
Specific Learning Disability” and to “[c]onsider an additional secondary coding of Other Health
Impairment”; (2) that “[w]ith respect to placement, Z.B. should receive specialized, small group
instruction for core subjects (e.g., math, language arts)” and “[f]or other subjects, Z.B. should be
7
Dr. Sanz also described Z.B. as having a history of inattention, impulsivity, disorganization,
and social difficulties, including having been verbally bullied at school since the first grade, and
as having demonstrated improvement with regard to her reading skills during third grade, but as
still having difficulty with math and writing. (AR 118.)
6
placed in a classroom with a small teacher to student ratio and increased supports for her
symptoms of ADHD, and to accommodate for the impact of her learning disorder in these
settings (for example, co-taught classes)”; (3) that Z.B. should “receive specialized instruction to
help with organizational skills and task approach for all academic classes”; (4) that Z.B. “should
receive an occupational therapy evaluation and individual occupational therapy to address letter
reversals and weaknesses in written expression; (5) that Z.B. “should receive a speech-language
assessment to examine phonological awareness given challenges in written expression”; and (6)
that Z.B. “should meet with the school psychologist regularly as an additional support for
socioemotional needs within the school context.” (AR 121.) Dr. Sanz also recommended that
Z.B.’s parents consider: (1) meeting with a child psychiatrist to discuss medication treatment of
ADHD; (2) cognitive-behavioral therapy to help with anxiety, mood, inattention and impulsivity;
and (3) an executive-skills coach or special education tutoring to address her impairment in math
and written expression, as well as skills affected by ADHD, possibly through the Lab School.
(AR 123.)
Z.B.’s parents provided DCPS with the Sanz Report and requested that Z.B. be evaluated
for an IEP. (AR 131, 144; 5/4/2016 Tr. at 254.) Sara Tick, the school psychologist at Hearst,
was the person responsible for “discuss[ing] and apply[ing] the results from [the Sanz Report] to
the eligibility of special education services.” (5/5/15 Tr. at 35.) An “initial eligibility meeting”
took place on May 27, 2014, and DCPS found Z.B. eligible for special education services as an
individual with the disability “Other Health Impairment / Attention Deficit Disorder.”8 (AR
146.)
8
Tick later testified that DCPS did not find Z.B. eligible based on the specific learning
disabilities identified by the Sanz Report because of the report’s emphasis on ADHD, but that
7
On June 9, 2014, Z.B.’s DCPS IEP team and Z.B.’s parents met to develop Z.B.’s initial
IEP.9 (AR 412.) The IEP team included Tick; Sharon Oliveros, Hearst’s special education
teacher; Elizabeth Wendt, the school counselor, acting in the role of social worker; Hearst’s then-
principal; and two of Z.B.’s third grade teachers. During the meeting, Z.B.’s parents were
informed that an IEP is a “fluid” document -- that things could always be added or taken away.
(5/4/2016 Tr. at 254.) The initial IEP (the “June 2014 IEP”) identified three “areas of concern”
(“academic-mathematics,” “academic-written expression,” and “emotional, social and behavioral
development”) and authorized a total of 8.5 hours of “special education and related services,”
consisting of 7.5 hours per week of academic support and one hour per week of behavioral
support services.10 (AR 414-18.) As six of the service hours were to be “outside the general
education setting,” the IEP team was required to affirm, in the “least restrictive environment”
section of the IEP, that Z.B. had “needs that require removal from general education,”
specifically that “[t]he nature and/or severity of the disability must be such that the student can
only make progress on IEP goals and objectives by being removed from the general education
classroom to receive these services.” (AR 419.) Implementation of the June 2014 IEP started
she anticipated that there might be “future evaluations or information coming that we may have
to change the classification to multiple or add other areas.” (5/5/15 Tr. at 35.)
9
The IEP team also included: Hearst’s then-principal, Deborah Bergeron; Z.B.’s third-grade
general education teachers, Kathy Monaghan and Christina Brown; and the school counselor,
Elizabeth Wendt (who, due to staffing shortages, was acting as the social worker (see 5/28/2015
Tr. at 132)). (AR 412.)
10
Specifically, the June 2014 IEP provided for special education in mathematics (one hour per
day outside the general education setting) and written expression (30 minutes per day within the
general education setting) and behavioral support services (one hour per week outside the
general education setting).
8
the next day, but because Z.B. missed the last week of school to attend a summer camp, it was
only in effect for four days before the school year ended. (See 5/5/15 Tr. at 41.)
Z.B.’s parents did not express any disagreement with the June 2014 IEP at the meeting
when it was adopted or request any changes thereafter. (See 5/4/15 Tr. at 262.) However, within
a week or so after the meeting, they began to investigate alternative options, and they ultimately
decided to apply to the Lab School, a private day school in D.C. devoted to educating students
with learning disabilities. (See 5/4/15 Tr. at 255.) According to Z.B.’s father, they requested the
recommendations they would need from Z.B.’s teachers in order to apply to the Lab School
before the end of June and, at the same time, also told the principal and her administrative
assistant that they were going to apply to the Lab School and that they would be asking for
funding.11 (See AR at 164-65; 5/4/15 Tr. at 255-56, 265, 271-72.) The next communication
between Z.B.’s parents and Hearst took place on August 28, 2014, when Z.B.’s mother notified
Hearst in a handwritten note that Z.B. was withdrawing from DCPS and would be attending the
Lab School in 2014-15. (AR 428.)
Z.B. began attending the Lab School in August 2014. In October 2014, the Lab School
produced its own IEP for Z.B. (the “Lab School IEP”). The Lab School’s IEP differed from the
June 2014 IEP in two material respects: (1) it added “reading” and “academic behavior/executive
functioning” as two additional “areas of concern”; and (2) it called for 35 hours per week of
specialized instruction and related services to be provided as part of a “self-contained, intensive,
individualized, remedial special education program” such as provided by the Lab School. The
11
Z.B.’s father testified that they also provided a written notice to the same effect, but due to an
unusual set of circumstances, the unexpected death of the administrative assistant and the
principal’s departure from Hearst, the school has no record of that communication. (Hearing
Officer Decision (“HOD”) at 7 n.42; see also 5/4/15 Tr. at 256-57, 262-63.)
9
Lab School’s IEP concluded that this was the “least restrictive environment” appropriate for Z.B.
because her “pervasive learning disabilities impede acquisition of academic skills and the ability
to learn and complete assignments in the general education curriculum.” (AR 203, 216.)
In November 2014, while Z.B. was attending the Lab School, DCPS arranged for two
additional evaluations. First, Anita Hughes, a DCPS licensed clinical social worker, conducted a
“functional behavior assessment” (“FBA”), the general purpose of which is “to look at behaviors
that are interfering with the student’s ability to be fully successful.” (5/5/15 Tr. at 285-86.)
Specifically as to Z.B., the FBA was to further examine her “poor social skills, distractibility,
and mood dysregulation,” which the June 2014 IEP had identified as an area of concern.12 (AR
429.) Z.B.’s parents and teachers told Hughes that Z.B. was making “good academic progress”
at the Lab School, and Z.B.’s parents also reported that Z.B.’s “level of anxiety ha[d]
significantly diminished.” (AR 224, 226.) However, Hughes found that although Z.B.’s
problem behaviors were “not as severe as in the past,” they had “escalated since the start of the
current year” and “resulted in poor peer relationships and sometimes disrupt[ed] the academic
program.” (AR 224, 226, 240.) Hughes further found that these behaviors “affect [Z.B.’s]
ability to access the general education curriculum on a consistent basis and can be disruptive for
her peers.” Hughes recommended that the Lab School “develop and implement a comprehensive
behavior intervention plan” (AR 440), but her report expressed no opinion as to whether Z.B.’s
behavioral issues required placement in a full-time special education program. DCPS also
arranged for an “occupational therapy [“OT”] assessment” to evaluate Z.B.’s “current fine
12
Hughes reviewed Z.B.’s file, conducted four classroom observations at the Lab School, and
spoke with Z.B.’s parents, two of her current teachers at the Lab School, the social worker at the
Lab School, two of Z.B.’s third-grade teachers at Hearst, and Tick. (AR 221-29.)
10
motor, visual motor, visual perceptual and sensory processing skills” and to determine “her need
for school-based occupational therapy.” (AR 231.) The OT assessment report described Z.B. as
having various deficits that were “having an impact on her ability to consistently produce written
work with good letter formation, spacing and line alignment.” (AR 235.)
After receiving the results of the FBA and the OT assessment, the DCPS IEP team
drafted a revised IEP and then met, on December 12, 2014, for its “annual review” of Z.B.’s IEP.
(AR 243.) In addition to Tick, Oliveros, Wendt, Z.B.’s third grade general education teacher
from Hearst, and Z.B.’s parents, all of whom were part of the June 2014 IEP meeting, the
December meeting was attended by Hughes, Dwayne Lawrence, the OT evaluator, Kali
McFarland, the new case manager from DCPS’s central office, Claudia deSilva, another special
education teacher from Hearst, and Z.B.’s parents’ attorney. (AR 243.) After an initial
discussion, it was agreed that the final IEP meeting would be deferred until after the parents’
attorney submitted additional information from the Lab School. (See 5/28/15 Tr. at 15.)
On December 19, 2014, plaintiffs’ attorney sent DCPS their “input for the redrafting of
the proposed IEP” (AR 259), which included notes from Dr. Jennifer Durham, the curriculum
and technology coordinator at the Lab School, and a request that the revised IEP include
additional information from the Sanz Report, Z.B.’s current teacher evaluations, Z.B.’s final
third grade report card from Hearst, the FBA, and the OT assessment, and that it “include a
section in the goals area on executive functioning.” (AR 259-61.)
When the DCPS IEP team met again, on January 20, 2015 (AR 472),13 DCPS had further
revised the IEP to (1) add “reading” and “motor skills/physical development” as “areas of
13
All the same individuals were in attendance except for Z.B.’s mother. (AR 472.)
11
concern”; (2) adjust some of the goals; (3) slightly increase the overall hours of special
education; and (4) in the section for “other classroom aids and services,” state that Z.B. “requires
a precise system for organizing her school work and tracking assignments, such as color-coded
folders/notebooks and help writing assignments in an agenda.” (AR 276.) According to the
official meeting notes, plaintiffs were satisfied with the additional revisions to the IEP with two
exceptions: (1) they wanted the IEP to include express executive functioning goals; and (2) they
believed that Z.B. required full-time special education, i.e., placement at the Lab School or
another comparable private school. (AR 488-91.) DCPS explained that it generally did not treat
executive functioning as a separate “area of concern” (AR 489), but agreed to add executive
functioning goals to the “emotional, social and behavioral” area of concern. (AR 490.) On the
placement issue, there was an extensive discussion, with Dr. Durham from the Lab School
participating by phone and presenting her view that Z.B. required small groups for learning
because in large groups she struggles with behavior and the inability to complete independent
work, whereas Tick and Oliveros continued to be of the opinion that Z.B. could be educated
within DCPS. (AR 489-91.) Ultimately, plaintiffs’ attorney indicated that unless the placement
decision was changed to provide Z.B. with full-time special education, the parents would reject
the IEP. (AR 490-91.) One other issue that was discussed was, if Z.B. were placed in DCPS,
whether Hearst would be an appropriate “location of services” given the troubles Z.B. had had
there in the past. However, Z.B.’s father indicated that he did not consider their local school an
appropriate alternative because it was a “failing school.” (AR 491.)
The final IEP that DCPS produced after this meeting rejected Z.B.’s parents’ request to
find that Z.B.’s disabilities required full-time special education, but it provided for a total of 11.5
hours of special education and related services, including 10 hours per weeks of academic
12
support, 1 hour per week of behavioral support services, and 30 minutes per week of
occupational therapy. (AR 484.) A total of 10.5 hours were to be outside the general education
setting, (AR 484.)
III. PROCEDURAL BACKGROUND
On March 10, 2015, Z.B.’s parents filed a “due process complaint”14 against DCPS,
claiming that both the June 2014 and January 2015 IEPs failed to provide Z.B. with a FAPE, and
therefore, that they were entitled to reimbursement for Z.B.’s attendance at the Lab School for
the 2014-15 school year and an order that DCPS place and fund Z.B.’s attendance there for the
2015-16 school year. (AR 4-16.) The IEP team and Z.B.’s parents met in a “resolution
session”15 on March 24, 2015. As a result of that meeting, DCPS agreed to alter the January
2015 IEP to add express executive functioning goals, which it did on April 20, 2015. (AR 495,
509.) The remaining issues were the subject of the “due process hearing” that took place on May
4, 5, and 28, 2015.16
At the hearing, plaintiffs presented testimony from four witnesses: Z.B.’s father testified
14
Under the IDEA, a parent may file a due process complaint with the local educational agency
“with respect to any matter relating to the identification, evaluation, or educational placement of
[a child with a disability] or the provision of a free and appropriate public education to such
child.” 20 U.S.C. § 1415(b)(6)(A).
15
The IDEA requires that before any due process hearing the IEP team and parents shall meet in
a “resolution session.” 20 U.S.C. § 1415(f)(1)(B).
16
The IDEA provides that:
Whenever a complaint has been received under subsection (b)(6) . . . , the parents
or the local educational agency involved in such complaint shall have an
opportunity for an impartial due process hearing, which shall be conducted by the
State educational agency or by the local educational agency, as determined by
State law or by the State educational agency.
20 U.S.C. § 1415(f)(1)(A).
13
about Z.B.’s experiences at Hearst and at the Lab School; Dr. Sanz, an expert in
“neuropsychology,” testified about inconsistencies between her report and the June 2014 IEP;
Dr. Durham, an expert in “programming for and instruction of learning disabled and other-health
impaired students,” testified about her knowledge of Z.B. from the Lab School and gave her
opinion that both the June 2014 and January 2015 IEPs were not appropriate; and Christine
Chang, an expert in “OT services,” testified that Z.B.’s need for occupational therapy was
probably longstanding. DCPS presented testimony from five witnesses: Tick, an expert in
“school psychology,” testified about her role in developing the June 2014 and January 2015 IEPs
and gave her opinion that both were appropriate; Oliveros, an expert in “special education
programming, special education instruction, and determining special education services in the
least restrictive environment,” testified that both the IEPs were appropriate; Hughes, an expert in
“clinical social work in a public school setting with emphasis on behavioral support,” testified
about the FBA she conducted of Z.B.; Kali McFarland, who took over as the DCPS case
manager in the fall of 2014, testified about the events leading up to and the development of the
January 2015 IEP; and Wendt, the social worker from Hearst, testified about the development of
both the June 2014 and January 2015 IEPs.
The hearing officer issued her decision (“HOD”) on June 9, 2015, ruling that plaintiffs
had failed to prove: (1) that DCPS denied Z.B. a FAPE by failing to propose an appropriate
program for her in the June 2014 and January 2015 IEPs; (2) that DCPS denied Z.B. a FAPE by
failing to propose an appropriate placement for Z.B. for the 2014-15 school year, specifically by
failing to designate a full-time, separate day school as the “least restrictive environment”
appropriate for her; and (3) that DCPS denied Z.B. a FAPE by failing to propose an appropriate
location of services, specifically by inappropriately selecting Hearst as the location of services,
14
despite Z.B.’s previous negative experiences at the location that impacted her social and
academic well-being.
On July 21, 2015, plaintiffs filed suit against the District of Columbia,17 asking the Court
to vacate the HOD, and find that both the June 2014 and January 2015 IEPs failed to provide
Z.B. with a FAPE, either due to the placement decision or program content,18 and to order DCPS
to reimburse them for the cost of Z.B.’s attendance at the Lab School.19 Relying on the existing
administrative record, both parties have moved for summary judgment. (See Pls.’ Mot. for
Summary Judgment, Sept. 25, 2016 [ECF No. 14]; Def.’s Cross-Mot. for Summary Judgment,
Nov. 30, 2015 [ECF No. 15].)
ANALYSIS
The parties’ cross-motions for summary judgment present the following issues: (1) did
the placement decision in either the June 2014 IEP or January 2015 IEP, specifically the decision
to place Z.B. in DCPS and not in a private full-time special education setting such as the Lab
School, result in an IEP that failed to provide Z.B. with a FAPE; (2) if not, were there
substantive flaws in the program content of either IEP sufficient to result in a legally
“inadequate” or “inappropriate” IEP that failed to provide Z.B. with a FAPE; and (3) if either
17
The IDEA permits “any party aggrieved by the findings and decision” rendered during
administrative proceedings to “bring a civil action” in state or federal court. 20 U.S.C. §
1415(i)(2); 34 C.F.R. § 300.512(b)(3).
18
While extensively describing Z.B.’s history of problems at Hearst, plaintiffs do not appear to
pursue their claim that DCPS also denied Z.B. a FAPE by designating Hearst as the “location of
services.”
19
At the time the complaint was filed, plaintiffs were seeking reimbursement for Z.B.’s
attendance at the Lab School for 2014-15 and placement there for 2015-16. As the 2015-16
school year has ended, the Court will treat plaintiffs’ claim as one for reimbursement for both
years.
15
IEP denied Z.B. a FAPE, are her parents entitled to reimbursement for her attendance at the Lab
School for the 2014-15 and 2015-16 school years.20
I. STANDARD OF REVIEW
A court reviewing a challenge to an administrative decision in an IDEA case is directed
to “receive the records of the administrative proceedings,” to “hear additional evidence at the
request of a party,”21 and, “basing its decision on the preponderance of the evidence, . . . [to]
grant such relief as the court determines appropriate.” 20 U.S.C. § 1415(i)(2)(C)(i)-(iii); 34
C.F.R. § 300.512(b)(3). The “‘party challenging the administrative determination 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) (“Kerkam I”)). As a
general rule, the reviewing court must give “due weight” to the hearing officer’s determinations.
Board of Education v. Rowley, 458 U.S. 176, 206 (1982); see also Reid, 401 F.3d at 521
(explaining that statutory language of the IDEA “‘plainly suggests less deference than is
conventional’ in administrative proceedings” (quoting Kerkam I, 862 F.2d at 887)). “‘However,
“a hearing decision ‘without reasoned and specific findings deserves little deference.’” Id.
(quoting Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991) (“Kerkam
II “) (internal quotation marks omitted)).
In this case, plaintiffs contend that the HOD warrants little deference as it lacks a detailed
20
As set forth in the complaint, the specific counts are (1) that DC failed to provide Z.B. with a
FAPE (Count I); (2) that DC failed to develop an appropriate IEP for Z.B. (Count II); and (3)
that the Hearing Officer committed error and violated plaintiffs’ due process rights by failing to
render a proper decision based on an accurate and impartial understanding of the facts and by
failing to apply correct legal standards (Count III).
21
Although the IDEA allows parties to introduce additional evidence, 20 U.S.C. §
1415(i)(2)(C)(i)-(iii), neither party has done so in this case.
16
and reasoned explanation of how the evidence supports its findings and conclusions. While the
Court agrees, it can nonetheless decide the issues presented based on its own examination of the
record.22
II. LEGAL STANDARD FOR EVALUATING THE ADEQUACY OF
APPROPRIATENESS OF AN IEP
Under the IDEA, “[a] public school district need not guarantee the best possible
education or even a ‘potential-maximizing’ one.’” Leggett, 793 F.3d at 70 (quoting Rowley, 458
U.S. at 197 n.21). Rather, the purpose of the IDEA is to provide a “basic floor of opportunity.”
Id. at 201. With that in mind, the Supreme Court has held that an IEP satisfies the IDEA if it is
“reasonably calculated to enable the child to receive educational benefits.” Id. at 207; see also
Reid, 401 F.3d at 519 (“[T]he IEP must, at a minimum, ‘provid[e] personalized instruction with
sufficient support services to permit the child to benefit educationally from that instruction.’”
(quoting Rowley, 458 U.S. at 203)). “[A]n ideal or perfect plan is not required.” Lessard v.
Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010). Flaws in the content
of an IEP do not necessarily “invalidate the IEP as a whole.” D.G. v. Cooperstown Cent. Sch.
Dist., 746 F. Supp. 2d 435, 448 (N.D.N.Y. 2010); see S.M. v. Weast, 240 F. Supp. 2d 426, 433
(D. Md. 2003) (court must determine “whether the omission from the IEP of certain specific
stated needs and goals or present performance levels is fatal to the document”); see also Doe v.
Defendant, 898 F.2d 1186, 1190 (6th Cir. 1990) (to invalidate an IEP based on technical
deviations from what the IDEA requires would be to “exalt form over substance”). “Ultimately,
22
The Court does not find that the lack of reasoning in the HOD necessitates a remand.
Compare M.O. v. District of Columbia, 20 F. Supp. 3d 31 (D.D.C. 2013) (remand necessary)
with Anderson v. District of Columbia, 606 F. Supp. 2d 86, 90 n.1 (D.D.C. 2009) (remand
unnecessary).
17
the question before the Court is whether or not the defects in the . . . IEP are so significant that
[d]efendant failed to offer [the student] a FAPE.” N.S. ex rel. Stein v. District of Columbia, 709
F. Supp. 2d 57, 70 (D.D.C. 2010.) Accordingly, to prevail on their claims the June 2014 and
January 2015 IEPs denied Z.B. a FAPE, plaintiffs must show by a preponderance of the evidence
that, at the time each IEP was created, that Z.B.’s placement in DCPS rather than in a full-time
special education setting or the program content of the IEP resulted in an IEP that was not
“reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at
207.
III. PLACEMENT IN DCPS DID NOT DENY Z.B. A FAPE
June 2014 IEP: To support their challenge to the placement decision in the June 2014
IEP, plaintiffs rely on the Sanz Report, Dr. Sanz’s testimony, Dr. Durham’s testimony, and
evidence that Z.B. was having a better social experience and making academic progress at the
Lab School. Of this evidence, only the Sanz Report was part of the material available for
consideration by the June 2014 IEP team, and plaintiffs’ primary argument is that, contrary to the
findings of the HOD, placing Z.B. in DCPS was not “consistent” with the Sanz Report. The
record, though, does not support plaintiffs’ view. As is apparent from the Sanz Report, and as
Sanz admitted when she testified at the due process hearing (see 5/4/15 Tr. at 101), nowhere in
the Sanz Report is there an express or even implied recommendation that Z.B. be removed from
DCPS and placed in a private school with full-time special education. Indeed, when the Sanz
Report mentions the Lab School, it is only as a possible resource for Z.B.’s parents to consider in
order to provide Z.B. with supplementary tutoring. Sanz did testify, over a year later in May
2015, that, based on her 2014 evaluation, she “would have wanted to see her in a small group
specialized setting for all of her core subjects and with additional support throughout the rest of
the school day.” (5/4/15 Tr. at 87.) However, not only is this a long after-the-fact interpretation
18
of her report, she still never testified that she had thought placement outside of DCPS was
necessary at the time she issued her report or even at the time she testified. (See 5/4/15 Tr. at 8
(approach “could have been implemented in a number of ways,” such as “a co-taught setting
where she could receive small group as needed across the day”).) Accordingly, the Court sees no
obvious inconsistency between the Sanz Report and the placement decision in the June 2014
IEP.
The other evidence cited by plaintiffs includes Dr. Durham’s testimony that the
placement decision in the June 2014 IEP was not appropriate (see 5/4/15 Tr. at 171) and the
evidence that Z.B. was making academic progress at the Lab School. (5/4/15 Tr. at 165; AR
224, 226, 227)). While the Court does not accept the rigid “snapshot” rule proposed by
defendant,23 it does believe that Dr. Durham’s hindsight testimony about the June 2014 IEP,
given that she was not part of the process and that she only met Z.B. after her enrollment at the
Lab School, where Dr. Durham works, several months after the preparation of the June 2014
IEP, carries little weight against the contemporaneous opinions of the DCPS IEP team members
– and its experts (Tick and Oliveros)24 –that Z.B. would receive a FAPE in DCPS. (See 5/5/15
23
Defendant devotes a great deal of time to arguing that the “snapshot” rule precludes the
consideration of any evidence that was not before the IEP team at the time the IEP was adopted.
(Def.’s Resp. at 10, 16-17.) Defendant’s reading of the snapshot rule is too broad. Although
“the adequacy of an IEP must be assessed as of the time the IEP was developed, rather than in
hindsight,” S.S. ex rel. Shank v. Howard Road Academy, 585 F. Supp. 2d 56, 66 (D.D.C. 2008),
that does not preclude the admission of evidence that post-dates its development. Rather, such
evidence may properly be admitted if it shed lights on whether the IEP was objectively
reasonable at the time it was promulgated.
24
Plaintiffs ask the Court to discount or exclude the expert testimony of DCPS’s witnesses (Tick,
Oliveros, and Hughes) on the ground that their testimony did not satisfy the requirements for
expert testimony found in Federal Rule of Evidence 702 and under the Supreme Court’s decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), Plaintiffs cite no
authority for the proposition that expert testimony in an IDEA administrative due process
hearing is governed by these requirements, and at least one appeals court has noted that
19
Tr. at 39 (Tick)25; 5/5/15 Tr. at 181, 188, 192 (Oliveros)). As for the fact that Z.B. was making
progress at the Lab School, that is both unsurprising and of limited evidentiary value to the
question before the Court, which is not whether placement at the Lab School is appropriate, but
rather whether placement in DCPS is not. Z.B.’s parents were, of course, fully within their rights
to unilaterally enroll Z.B. at the Lab School, but one consequence of their doing so without first
allowing time for full implementation of the June 2014 IEP is that there is no persuasive
evidence that placing Z.B. in DCPS was not a viable option. Given these facts, the Court
concludes that plaintiffs have not established by a preponderance of the evidence that placing
Z.B. in DCPS in June 2014 resulted in an IEP that was not “reasonably calculated to enable the
child to receive educational benefits.” Rowley, 458 U.S. at 207.
January 2015 IEP: Having concluded that placement in DCPS in June 2014 did not deny
Z.B. a FAPE, the next question is whether the IEP team should have reached a different
conclusion six months later. Unlike the situation in June 2014, when the IEP team met in
December 2014 to consider revisions to Z.B.’s IEP, the placement issue was front and center.
Z.B.’s parents expressly requested placement at the Lab School, and their attorney provided the
“[w]hether Daubert applies to IDEA hearings before state administrative agencies is highly
questionable.” H.C. ex rel. M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F. App’x 64,
68 (2d Cir. 2013) (citing Richardson v. Perales, 402 U.S. 389, 400 (1971)). Moreover, even if
the Court were to agree with plaintiffs’ proposition, the proper time for plaintiffs to raise this
issue was before the Hearing Officer. See id. at 68 (district court cannot play gatekeeper role
when it is reviewing an administrative record). Accordingly, the Court will not reject the expert
opinions of the DCPS witnesses.
25
Plaintiffs contend that Tick’s testimony should carry little weight because of her “extreme
bias” in favor of integration and against full-time special education. The Court does not view her
testimony as evidencing bias, but rather as offering her strong opinion about the benefits of
integration. Of course, she is not alone in this view. Indeed, the law requires that each student
be educated in the “least restrictive environment” that is appropriate. And, as the record
establishes, DCPS is capable of providing up to 26 hours per week of special education and
related services.
20
IEP team with evidence from the Lab School that supported their request, including the Lab
School’s IEP, evidence that Z.B. was making progress at the Lab School, although her
behavioral problems remained significant, and Dr. Durham’s opinion that removal from DCPS
was necessary. Plaintiffs rely on this evidence, with the additional support of Dr. Durham’s
testimony at the hearing, to argue that placement in DCPS in January 2015 denied Z.B. a FAPE.
Countering the Lab School evidence, both at the time the January 2015 IEP was adopted and as
reiterated at the hearing, are the opinions of Tick and Oliveros, two members of the DCPS IEP
team who continued to believe that removal from DCPS was not necessary. What the record is
lacking, especially considering the timing of Z.B.’s removal from DCPS, is any persuasive
evidence that keeping Z.B. in DCPS was not a viable option.
While Z.B. is no doubt receiving a “better” education at the Lab School than she would
have at DCPS; the Lab School, after all, is an expensive private school that educates only
students with disabilities and is well known for the quality of its education. However, that is not
the legal standard that must be applied to decide whether removal from a public school system is
appropriate within the meaning of the IDEA. Rather, the question is whether removing Z.B.
from DCPS is necessary to provide her with an education that is “reasonably calculated to enable
the child to receive educational benefits.” Rowley, 458 U.S. at 207. Making that determination
is particularly complicated where, as here, the public school system had an IEP in place in June
2014, but the parents made the unilateral decision almost immediately to remove their child from
the public school system so that the proposed IEP was never implemented. In addition, by
bailing out before the IEP was implemented, and before the District ever had an opportunity to
respond to the parents’ objections, which were never even the subject of discussion with DCPS
in either an informal or formal setting, one cannot conclude that placement in DCPS was not a
21
viable option. And, as previously discussed, the fact that Z.B. is making progress at the Lab
School is not persuasive evidence that placement in DCPS would not have worked.
The Court of Appeals’ recent decision in Leggett, which ordered DCPS to reimburse a
parent who unilaterally withdrew her child from DCPS, is easily distinguishable. In Leggett, the
child’s parent made the first request to have her child evaluated for learning disabilities in the fall
of 2009, yet DCPS, although it agreed to perform an evaluation, failed to conduct an evaluation
that year, the next year, or by the start of the following year. 793 F.3d at 64. Halfway through
the 2011-12 school year, due to continuing and very serious academic and other issues, the
parent again asked for an evaluation; this time DCPS refused, telling her to pay for a private
assessment. Id. The parent immediately filed a due process complaint, which spurred DCPS
officials to agree to undertake the necessary testing. Id. at 64-65. After the testing was
completed, though, DCPS still failed to have an IEP in place before the start of the 2012-13
school year. Id. at 65. The parent made multiple attempts over the summer to find out if an IEP
would be finalized, but, having heard nothing, decided to enroll her child in the only private
school she could find that would accept her and to file a new due process complaint, all the while
making clear that she were willing to return to DCPS if an appropriate IEP were forthcoming.
Id. at 65-66. DCPS managed to come up with an IEP about a month into the school year, but it
was, according to the parent, “riddled with errors” and lacking necessary special education
programs. Id. at 66. The Court of Appeals found that the procedural violation of not having an
IEP in place at the start of the school year clearly carried substantive consequences as the child
would be without any special education services, and as a result, DCPS had failed to provide the
student with a FAPE. Id. at 68. The Court also rejected DCPS’s attempt to blame the delay on
the parent, finding that with no IEP in place she really had no other viable option other than to
22
place her child in the only private school that she had found that could meet her needs. Id. at 68-
69. But the Court of Appeals in Leggett did not need to reach the question of whether alleged
inadequacies in the IEP that was eventually adopted would have independently constituted the
denial of a FAPE.
Here the situation is dramatically different. There was a timely IEP prepared in June
2014 that called for the provision of special education services and the parents did not offer any
specific objections to the IEP or invoke their administrative rights to challenge it before
withdrawing from DCPS. Instead, they made the unilateral decision to move Z.B. before the IEP
was even implemented and then argued at a due process hearing in May 2015, after Z.B. had
been at the Lab School for almost a full school year, that a private school was the only
appropriate placement. In fact, plaintiffs’ lawyer told the IEP team in January 2015 that unless
DCPS changed the placement to provide Z.B. with a full-time, special- education placement, the
parents would reject the IEP. In addition the parents did not want their child at Hearst because
she had been subjected to bullying, and the father considered the local option as unacceptable
because it was a failing school. (AR 491.) In contrast, in Leggett, the Court emphasized that it
was “[c]ritical for our purposes . . . [that the parent’s] communication [with the school] made
clear that she ‘remained open to the possibility that [the child] could return to [DCPS] if the
school offered her a satisfactory IEP.” Leggett, 793 F.3d at 66. So unlike Leggett and others
cases26 where no IEP was in place, here there was an IEP in place, and while it might not have
been flawless, it did recognize the child’s educational needs, provided special education services,
26
See, e.g., Alfono v. District of Columbia, 422 F. Supp. 2d 1, 8 (D.D.C. 2006) (incomplete IEP
at start of school year denied student a FAPE); N.S. ex rel. Stein, 709 F. Supp. 2d at 70 (IEP was
“effectively incomplete” and thus denied student a FAPE).
23
and it satisfied the standard set forth in Rowley in that it was reasonably calculated to enable the
child to receive educational benefits.
Finally, there are strong policy considerations that counsel against allowing parents to
unilaterally place a child in private school before giving the public school a chance to implement
their IEP or to even adjust it in response to parental complaints, and to then permit parents to
override the placement determination of the public school’s IEP team based on the child’s
subsequent success at the specialized school and the opinions of experts associated with that
school. As the First Circuit has observed, “the underlying judgment of those framing the [IEP] is
given considerable weight. The standard of review is thus deferential to the educational
authorities, who have primary responsibility for formulating the education to be accorded a
handicapped child, and for choosing the educational method most suitable to the child’s needs.”
See Lessard, 592 F.3d at 270. Moreover, such an outcome would be inconsistent with the
purposes of the IDEA, costly for the public school system, and fundamentally unfair to the many
children whose parents lack the financial resources to take that risk. In addition, it invites
parents to flee the public school upon the completion of one IEP without invoking the
administrative process provided by the IDEA until many months after the child has matriculated
at what many would agree is the best available private non-residential school (and probably the
most expensive one) in the District. In the end, given the particular facts of this case, the Court
concludes that plaintiffs have not established by a preponderance of the evidence that the January
2015 IEP should have removed Z.B. from DCPS and placed her in full-time special education.
Accordingly, the Court rejects plaintiffs’ claims that the placement decisions in the June
2014 and January 2015 IEP denied her a FAPE.
IV. PROGRAM CONTENT OF IEPS DID NOT DENY Z.B. A FAPE
Having concluded that plaintiffs have not shown that placing Z.B. in DCPS in June 2014
24
or January 2015 denied her a FAPE, the Court must consider whether plaintiffs’ challenges to the
substantive content of either IEP have merit.
June 2014 IEP: Plaintiffs contend that the June 2014 IEP was inappropriate because it
included inappropriate math and writing goals, lacked reading and executive functioning goals,
lacked goals and services that would have been included had it timely assessed Z.B.’s need for
behavioral interventions and occupational therapy, and contained insufficient hours of
specialized education.
There is evidence that supports plaintiffs’ specific criticisms of the June 2014 IEP. For
example, Sanz testified that the June 2014 IEP was inconsistent with her report in several
respects: it misinterpreted one of the written expression scores (5/4/15 Tr. at 71-72); it did not
take into account Z.B.’s specific learning disabilities in math and written expression – only her
ADHD (5/4/15 Tr. at 78, 80); it set inappropriately high goals in math (5/4/15 Tr. at 79); it only
provided for help in written expression within the general education setting (5/4/15 Tr. at 82); it
did not take into account the “complexity” of her social/emotional/behavioral problems (5/4/15
Tr. at 81); and it lacked executive functioning goals. (5/4/15 Tr. at 84.) However, when Sanz
was asked about these inconsistencies, her recommendations for how the June 2014 should have
been altered were quite limited, and her testimony does not suggest that these inconsistencies
were fatal flaws. For example, she testified that she: “might have included some goals for
reading comprehension (5/4/15 Tr. at 85); “would have liked to have seen some further
evaluation of reading skills to see if goals for phonological awareness were warranted and also
occupational therapy”; “might have added some additional push-in support or support within the
classroom for her behaviors as well” (5/4/15 Tr. at 85); and in terms of the hours of service, Z.B.
“might need a little bit more than that.” (5/4/15 Tr. at 86-87.) Considering this testimony, the
25
Court does not see any fatal inconsistencies between the Sanz Report and the June 2014 IEP.
Dr. Durham testified that the June 2014 IEP had inappropriate math goals (5/4/15 Tr. at
158), lacked needed goals in reading (5/4/2015 at 159), and provided too few hours of special
education (5/4/15 Tr. at 160), but, for the reasons previously discussed, her hindsight testimony
about the appropriateness of the June 2014 IEP carries relatively little weight. In addition, her
opinion is countered by Tick and Oliveros (see 5/5/15 Tr. at 39 (Tick); 5/5/15 Tr. at 192
(Oliveros)), who also explained that the IEP team made the decision not to include reading goals
because Z.B.’s reading was in the average range (5/5/15 Tr. at 99 (Tick); 5/5/15 Tr. at 220, 237
(Oliveros)27), a conclusion that is supported by record evidence, including the Sanz Report.
Finally, her opinion that there were “insufficient” service hours in the June 2014 IEP, without
offering as any specifics, also fails to establish any fatal flaws in the June 2014 IEP.
Finally, Dr. Chang, who is also affiliated with the Lab School, testified that the June 2014
IEP lacked necessary occupational therapy services. However, the absence of occupational
therapy services, especially given the short time frame between the eligibility determination and
the adoption of the initial IEP, does not render the IEP inappropriate. The Court reaches the
same conclusion as to the lack of an express “executive functioning” goal, especially given the
information that was available at the time.
The June 2014 IEP may not have been perfect, but that does not mean that it was
inadequate. An IEP is not a static document. Rather than raising these issues at the time the
June 2014 IEP was adopted and giving DCPS a chance to address them, Z.B.’s parents withdrew
27
Oliveros further explained that math was included as an area of concern while reading was not
because Z.B.’s reading test scores, unlike math, were not below average, and Z.B. had more need
in math than reading. (5/5/15 Tr. at 211, 220, 237.)
26
her from DCPS and enrolled her at the Lab School. Moreover, when DCPS conducted its annual
review and was made aware of these issues, it agreed to all of plaintiffs’ proposed changes short
of their request for full-time special education. In the Court’s view, this is precisely how the IEP
process is supposed to work and the reason why flaws in an IEP must be “significant” before it
can be considered inadequate. N.S. ex rel. Stein, 709 F. Supp. 2d at 70; see also Tindell v.
Evansville-Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 647 (S.D. Ind. 2011) (IEP not denial
of FAPE where record did not show that it had “significant flaws that prevented [the student]
from receiving the benefit of the services provided for therein”).
January 2015 IEP: As noted, the January 2015 IEP, as amended in April 2015,
addressed almost all of plaintiffs’ complaints about the substantive content of the June 2014 IEP.
The only remaining challenge is a claim that the January 2015 IEP provides for insufficient
service hours. Although that is theoretically a different claim than their challenge to placement
in DCPS, which the Court has already rejected, as was the case with the June 2014 IEP, they
have made no serious attempt to distinguish it. Dr. Durham testified that authorized hours of
special education “remained insufficient” (5/4/15 Tr. at 160), but her testimony included no
specifics. . This vague critique is not enough to establish that the number of service hours even
constituted a flaw in the January 2015 IEP, much less that the single alleged defect was “so
significant” that it denied Z.B. a FAPE. N.S. ex rel. Stein, 709 F. Supp. 2d at 70.
Accordingly, the Court rejects plaintiffs’ claims that the program content in the June
2014 and January 2015 IEPs rendered those IEPs inadequate and denied her a FAPE.
V. REIMBURSEMENT
Having concluded that neither the June 2014 nor January 2015 IEPs denied Z.B. a FAPE,
plaintiffs are not eligible for reimbursement for Z.B.’s attendance at the Lab School or for an
order directing DCPS to place and fund Z.B.’s attendance there in the future.
27
CONCLUSION
As the Court has concluded that neither the June 2014 nor the January 2015 IEP denied
plaintiff a FAPE, plaintiffs’ motion for summary judgment will be denied and defendant’s
motion for summary judgment will be granted. A separate Order accompanies this
Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: August 24, 2016
28