J.S. v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
J.S. et al.,
Plaintiffs,
v. Civil Action No. 21-0293 (CKK)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
(April 15, 2021)
Plaintiffs J.S., a student eligible for special education services in the District of Columbia,
and his parents, A.D. and T.S. (“Plaintiffs”) seek judicial review of a Hearing Officer’s
Determination (“HOD”) following an administrative due process hearing under the Individuals
with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq. See Compl.,
ECF No. 1. The parties are presently before the Court on Plaintiffs’ [9] Motion for Preliminary
Injunction seeking a “stay-put” order pursuant to 20 U.S.C. § 1415(j), requiring Defendant, the
District of Columbia (“Defendant” or “the District”) to maintain and fund J.S.’s placement at the
Innercept Academy, a private residential program in Coeur d’Alene, Idaho, pending a judicial
determination of Plaintiffs’ challenge to the District’s proposed placement at the Hughes Center,
a private residential treatment program in Danville, Virginia. Upon consideration of the parties’
pleadings, 1 the relevant legal authorities, and the record as a whole, the Court shall DENY
Plaintiffs’ Motion for Preliminary Injunction.
1
The Court’s consideration has focused on the following materials: Plaintiffs’ Motion for
Preliminary Injunction (“Pls.’ Mot.”), ECF No. 9; Defendant’s Opposition to Plaintiffs’ Motion
for Preliminary Injunction (“Def.’s Opp’n”), ECF No. 15; and Plaintiffs’ Reply to Defendant’s
Opposition to Motion for Preliminary Injunction (“Pls.’ Reply”), ECF No. 18. In an exercise of
its discretion, the Court finds that holding oral argument in this action would not be of assistance
in rendering a decision. See LCvR 7(f).
1
I. BACKGROUND
A. Statutory Framework
The IDEA was enacted to “ensure that all children with disabilities have available to them
a free appropriate public education [“FAPE”] that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education, employment,
and independent living.” 20 U.S.C. § 1400(d)(1)(A). Once a child is identified as disabled, the
school district must convene a meeting of a multi-disciplinary team to develop an individualized
education program (“IEP”) for the student. See § 1414. The IEP must include a variety of
information, including the child’s current levels of academic achievement and functional
performance, measurable annual goals, how the child’s progress towards the goals will be
measured, and the special education and related services to be provided to the child.
§ 1414(d)(1)(A)(I). The IEP must be formulated in accordance with the terms of the IDEA and
“should be reasonably calculated to enable the child to achieve passing marks and advance from
grade to grade.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 204
(1982).
Once the IEP is developed, the school system must provide an appropriate educational
placement that comports with the IEP. Alston v. Dist. of Columbia, 439 F. Supp. 2d 86, 90 (D.D.C.
2006). “If no suitable public school is available, the school system must pay the costs of sending
the child to an appropriate private school.” Dist. of Columbia v. Vinyard, 901 F. Supp. 2d 77,
80–81 (D.D.C. 2012) (quoting Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 519 (D.C. Cir.
2005)). However, a parent or guardian who “unilaterally places a child with a disability in a private
school,” without consent of the school system, “does so at his or her own risk.” Florence Cty. Sch.
2
Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (quoting School Comm. of Town of Burlington, Mass.
v. Dep’t of Educ. of Mass., 471 U.S. 359, 372 (1985)).
The IDEA guarantees parents of disabled children the opportunity to participate in the
evaluation and educational placement process. See § 1415(b)(1). If the parent of a child receiving
services pursuant to the IDEA believes his or her child’s IEP or school placement is inadequate,
the parent may file a “due process complaint.” See § 1415(b)(7)(A); § 1415(k)(3). The IDEA
further provides that “during the pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parents otherwise agree, the child shall remain
in the then-current educational placement of the child[.]” § 1415(j). Known as the “stay-put
provision,” this section mandates that once a parent files a due process complaint, “the child shall
remain in the interim alternative educational setting pending the decision of the hearing officer”
unless “the parent and the State or local educational agency agree otherwise.” § 1415(k)(4); accord
34 C.F.R. § 300.518(a).
B. Factual Background
J.S. is an eighteen-year-old student who has been diagnosed with Autism Spectrum
Disorder, Attention Deficit Hyperactivity Disorder, Combined Type, Bipolar Disorder, and
Anxiety Disorder, as well as specific learning disabilities in reading and written expression.
Compl. ¶ 7. J.S. resides in the District of Columbia and has been found eligible for special
educations services by the District of Columbia Public Schools (“DCPS”). Id. ¶ 8. He currently
attends the Innercept Academy in Coeur d’Alene, Idaho. Id. ¶ 6.
After difficulties during the 2019–2020 school year—including two hospitalizations due
to mental health challenges and the use of online learning prompted by the COVID-19 pandemic,
see id. ¶¶ 25–32, 40—J.S.’s parents sought to place J.S. in a full-time residential program. See
3
Hearing Officer Determination (“HOD”) ¶¶ 8–9, A.R. 661, ECF No. 12-2. On May 14, 2020, an
IEP team held a meeting in which J.S.’s mother and counsel participated. HOD ¶¶ 8–9, A.R. 661.
The IEP team agreed that J.S. required 26.5 hours per week of Specialized Instruction outside the
general education setting and 240 minutes per month of Behavioral Support Services. HOD ¶ 8,
A.R. 661; May 2020 IEP, A.R. 149, ECF No. 10-2. The IEP does not provide for group therapy
services or Extended School Year (“ESY”) services. HOD ¶ 8; May 2020 IEP, A.R. 153. At the
IEP meeting, J.S.’s counsel requested consideration of a full-time residential placement for J.S., at
a school with a psychiatrist on staff. HOD ¶ 9, A.R. 661; Notes from May 2020 IEP Meeting,
A.R. 162. The IEP team agreed to make a referral to the Office of the State Superintendent of
Education (“OSSE”) for a change-in-placement review to consider a residential placement. HOD
¶ 9, A.R. 661.
On June 15, 2020, Plaintiffs informed DCPS that J.S. had been accepted to Innercept
Academy for the 2020–2021 school year and requested that DCPS place J.S. there for the academic
year. HOD ¶ 13, A.R. 663 (citing June 15, 2020 Correspondence, A.R. 192, ECF No. 10-6).
Plaintiffs noted that they did not believe that an appropriate special education program had been
identified or offered by DCPS for the upcoming school year, and that if DCPS refused their request
for funding, they reserved their right to seek funding for their unilateral placement of J.S. at
Innercept Academy. HOD ¶ 13, A.R. 663 (citing June 15, 2020 Correspondence, A.R. 192).
On June 25, 2020, OSSE held a “change-in-placement” meeting during which OSSE
accepted the IEP team’s decision that J.S. required a residential placement and agreed to start the
location assignment process. HOD ¶ 10, A.R. 661–61; Notes from OSSE Placement Meeting,
A.R. 395, ECF No. 12-1. At the meeting, J.S.’s mother reported that J.S. would enroll at Innercept
Academy on June 29, 2020 and requested that OSSE consider Innercept Academy for J.S.’s
4
location placement. HOD ¶ 10, A.R. 662; Notes from OSSE Placement Meeting, A.R. 395–96.
OSSE advised Plaintiffs that they must exhaust all programs on the OSSE-approved nonpublic
school list. HOD ¶ 10; Notes from OSSE Placement Meeting, A.R. 396.
After the “change-in-placement” meeting, OSSE made referrals to residential programs on
its list of approved schools. HOD ¶ 11, A.R. 662. On July 17, 2021, OSSE advised Plaintiffs that
one of these schools, the Hughes Center, had accepted J.S. for enrollment. HOD ¶ 11, A.R. 662.
OSSE also explained that the Hughes Center had a waitlist due to protocols implemented in
response to the COVID-19 pandemic, which would delay J.S.’s ability to enroll by 12-14 weeks.
HOD ¶ 11, A.R. 662. (citing July 17, 2020 Email from Drew Yee, A.R. 398, ECF No. 12-1). OSSE
also notified Plaintiffs that it would issue a Notice of Location Assignment for J.S. to attend the
Hughes Center. HOD ¶ 11; see Notice of Location Assignment, July 17, 2020, A.R. 402, ECF No.
12-1.
The Hughes Center is located in Danville, Virginia and offers “specialized residential
treatment services for individuals “who have been diagnosed with an Intellectual Disability and/or
Autism Spectrum Disorder, and who are experiencing significant social and behavioral difficulties
within the home, school or community environments.” The Hughes Center, Residential
Treatment, A.R. 510, ECF No. 12-1. Based on testimony provided during the due process hearing,
the Hearing Officer noted that approximately one-half of the students in the residential program at
the Hughes Center are “intellectually disabled,” but that approximately 10 out of 20 students at the
high school level are “on the diploma track” and none of those students has an intellectual
disability. HOD ¶ 17, A.R. 665–66.
On July 30, 2020, Plaintiffs conveyed to OSSE concerns regarding its proposal to place
J.S. at the Hughes Center. HOD ¶ 14, A.R. 663; see also July 30, 2020 Email from Meghan
5
Probert, A.R. 406–07, ECF No. 12-1. First, J.S.’s mother believed that the Hughes Center would
not be a good fit for J.S. because she learned that many of the students had an Intellectual Disability
Diagnosis or were nonverbal. HOD ¶ 14, A.R. 663; see also July 30, 2020 Email from Meghan
Probert, A.R. 406–07. Second, J.S.’s parents were concerned about the Hughes Center’s waitlist.
HOD ¶ 14, A.R. 663; see also July 30, 2020 Email from Meghan Probert, A.R. 406–07. J.S.’s
parents, through their counsel, again requested that J.S. be referred to Innercept, which they
believed to be a more appropriate placement. HOD ¶ 14, A.R. 663–64. On the same day, OSSE
responded that although the Hughes Center does serve students with Intellectual Disabilities, it
also serves students diagnosed with Autism, and the admissions team at the Hughes Center agreed
that its program could meet J.S.’s needs. HOD ¶ 15, A.R. 664; July 30, 2020 Email from Drew
Yee (OSSE), A.R. 412–13, ECF No. 12-1. OSSE also advised Plaintiffs that DCPS should discuss
with J.S.’s IEP team providing “comparable services” for J.S. pending enrollment at the Hughes
Center. HOD ¶ 15, A.R. 664; July 30, 2020 Email from Drew Yee (OSSE), A.R. 412–13.
On August 21, 2020, Plaintiffs filed an administrative due process complaint alleging that
OSSE denied J.S. a FAPE by failing to offer an appropriate residential placement for the 2020–
2021 school year. Due Process Compl. at 1, A.R. 8, ECF No. 10-2. Plaintiffs sought
reimbursement for tuition and related costs paid to Innercept Academy since June 29, 2020 and
prospective funding and placement at Innercept Academy through the end of the 2020–2021 school
year. Due Process Compl. at 7, A.R. 14.
A due process hearing before a Hearing Officer was held on October 28 and 20 and
November 6, 2020. HOD at 2, A.R. 656. The Hearing Officer issued a determination on
November 17, 2020. See HOD, A.R. 655. The Hearing Officer found that at the time OSSE made
its location assignment for J.S. on July 17, 2020, the Hughes Center could fulfill the requirements
6
set forth in J.S.’s IEP and therefore it was “an appropriate placement for [J.S.].” HOD at 26–27,
A.R. 680–81.
However, the Hearing Officer also concluded that OSSE had failed to show that it “took
all reasonable steps to overcome the obstacles which delayed prompt implementation of [J.S.’s]
residential placement.” HOD at 31, A.R. 685. The Hearing Officer, therefore, found that OSSE’s
“failure to provide a residential placement for [J.S.] near the start of the 2020-2021 school year
was a denial of FAPE.” HOD at 31, A.R. 685. Having concluded that OSSE denied J.S. a FAPE
by “failing to implement” J.S.’s IEP requirement for a residential placement at the beginning of
the 2020–2021 school year, the Hearing Office next considered whether Plaintiffs’ unilateral
placement of J.S. at Innercept Academy was “reasonably calculated” to enable J.S. to “make
progress appropriate in light of [J.S.’s] very challenging circumstances,” allowing them to seek
reimbursement for tuition and fees. HOD at 34, A.R. 688. The Hearing Officer granted Plaintiffs
reimbursement for the first semester of the 2020–2021 school year, but denied reimbursement for
the summer of 2020 because J.S.’s IEP did not provide for extended school year services. HOD
at 37, A.R. 691.
Plaintiffs also requested that the Hearing Officer order OSSE to fund J.S.’s continued
placement at Innercept Academy for the remainder of the 2020–2021 school year. See Due Process
Compl. at 7, A.R. 14. The Hearing Officer denied this request for prospective placement and
funding, noting that Innercept Academy “cannot fulfill [J.S.’s] IEP.” HOD at 38, A.R. 692. The
Hearing Officer noted, for example, that J.S.’s IEP provides for 26.5 hours of Specialized
Instructive Services, but Innercept Academy provides only 17.5 of school per week and offers no
special education services taught by special education teachers. HOD at 38, A.R. 692. In contrast,
the Hughes Center offer 27.5 hours of instruction per week and employs a psychiatrist on its staff.
7
HOD ¶¶ 19–20, A.R. 666–67. The Hughes Center also employs licensed therapists who meet with
each student twice per week and provide weekly family therapy and family engagement. HOD
¶ 20, A.R. 667; id. at 24, A.R. 678. Accordingly, the Hearing Officer concluded that OSSE had
demonstrated that its location assignment (the Hughes Center) could fulfill the requirements set
forth in the May 2020 IEP and therefore was an “appropriate placement” for J.S. HOD at 26–27,
A.R. 680–81. The Hearing Officer ordered OSSE to fund J.S.’s placement at Innercept Academy
through the end of DCPS’s term on January 29, 2021 “[i]n order not to unduly disrupt [J.S.’s]
education and therapy,” but not beyond that date. HOD at 38–39, A.R. 692–93.
Finally, the Hearing Officer noted that his decision regarding J.S.’s prospective placement
for the remainder of the 2020–2021 school year was “without prejudice as to any decision by
OSSE, with the concurrence of [Plaintiffs] and [J.S.’s] IEP team, to further extend [J.S.’s]
placement at [Innercept Academy].” HOD at 38–39, A.R. 692–93.
Plaintiffs indicate that they attempted to contact DCPS and OSSE in December 2020 and
January 2021 to schedule an IEP meeting to discuss J.S.’s continued placement at Innercept
Academy, but no meeting has taken place. Pls.’ Mot. at 10; see also Pls.’ Mot. Exs. 2, 9-3. It is
the District’s position that neither DCPS nor OSSE was required to convene such a meeting after
the Hearing Officer’s determination. Def.’s Opp’n at 7–8. On January 26, 2021, OSSE notified
Plaintiffs’ counsel that the “Hughes Center is still anticipating a start date for [J.S.] in the next
week or so. The exact date will depend on the completion [of] admission[s] paperwork.” Pls.’
Mot. Ex. 2, Jan. 26, 2021 Email from Katie Reda (OSSE), ECF No. 9-3. On February 11, 2021,
OSSE notified Plaintiffs indicating that the Hughes Center “has not received any requested
admissions information.” Feb. 11, 2021 Email from Katie Reda (OSSE), Def.’s Opp’n Ex. 2, ECF
No. 15-2. J.S. continues to attend Innercept Academy.
8
C. Procedural Background
Plaintiffs filed their Complaint in this action on February 1, 2021, seeking review of the
Hearing Officer’s conclusion that OSSE’s proposed placement of J.S. at the Hughes Center was
appropriate and that OSSE was not required to fund J.S.’s placement at Innercept Academy for the
summer of 2020 and for the second half of the 2020–2021 school year. See Compl., ECF No. 1.
On March 16, 2021, Plaintiffs filed a [9] Motion for Preliminary Injunction, seeking
injunctive relief under IDEA’s “stay-put” provision, 20 U.S.C. § 1415(j). That motion is now fully
briefed and ripe for the Court’s consideration.
II. DISCUSSION
The IDEA provides that “during the pendency of any proceedings conducted pursuant to
[Section 1415], unless the State or local educational agency and the parents otherwise agree, the
child shall remain in the then-current educational placement of the child[.]” § 1415(j). Commonly
referred to as the “stay-put provision,” this section requires the educational agency to maintain a
disabled child in his “current educational placement” through both administrative and judicial
proceedings, including an appeal from an administrative decision following a due process hearing.
34 C.F.R. § 300.518(a). The purpose of the stay-put injunction is to prevent educational authorities
from unilaterally moving a child from his or her current placement. Alston, 439 F.Supp.2d at 88
(citing Honig v. Doe, 484 U.S. 305, 306 (1988)). A parent can invoke the stay-put provision to
request injunctive relief when a school system proposes a “fundamental change in, or elimination
of, a basic element of the [then-current educational placement].” Lunceford v. Dist. of Columbia
Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir. 1984). Maintenance of a child’s current placement
includes full payment for the program in which the student is placed, and a failure by the school
district to fund a child’s current educational placement constitutes grounds for stay-put injunctive
9
relief. See, e.g., Petties v. Dist. of Columbia, 881 F. Supp. 63, 66 (D.D.C. 1995) (holding that
“fail[ure] to make payments in whole or in part or cutting off funds for special education programs
amounts to a unilateral change in students' placements, which is prohibited by the IDEA”).
The traditional four-part standard for injunctive relief does not apply to requests for stay-
put relief pursuant to the IDEA, which directs that the “child shall remain in [his] then-current
educational placement.” § 1415(j) (emphasis added). The Supreme Court has recognized that the
language of this pendency provision is “unequivocal” and “means what it says.” Honig, 484 U.S.
at 323, 325. Thus, “courts have consistently interpreted the stay put provision to be an automatic
injunction.” Laster v. Dist. of Columbia, 439 F. Supp. 2d 93, 98–99 (D.D.C. 2006) (citing cases);
see also Andersen by Andersen v. Dist. of Columbia, 877 F.2d 1018, 1020 (D.C. Cir. 1989) (noting
that if the stay-put provision applies, “injunctive relief is available without the traditional showing
of irreparable harm”); Johnson v. Dist. of Columbia, 839 F. Supp. 2d 173 (D.D.C. 2012) (“The
stay put provision has been interpreted as imposing an automatic statutory injunction, like the
automatic stay in bankruptcy.”) (citing Casey K. ex rel. Norman K. v. St. Anne Cmty. High Sch.
Dist., 400 F.3d 508, 511 (7th Cir. 2005)). The party requesting relief under the stay-put provision
must show that (1) proceedings under the IDEA are pending; and (2) prevention of a change in the
“then-current educational placement” of the child is sought. K.W. v. Dist. of Columbia, 385 F.
Supp. 3d 29, 37 (D.D.C. 2019) (internal citations omitted). Upon meeting this two-part inquiry,
the movant is presumptively entitled to a stay-put injunction in favor of the child’s current
placement. Eley v. Dist. of Columbia, 47 F. Supp. 3d 1, 8 (D.D.C. 2014).
Here, there is no dispute that IDEA proceedings are pending. Accordingly, the question is
whether Plaintiffs’ motion seeks to prevent a “change” in J.S.’s “current educational placement.”
Because the Court finds that Plaintiffs have not demonstrated that Innercept Academy is J.S.’s
10
“current educational placement,” the Court concludes that the District’s decision not to fund J.S.’s
placement at Innercept Academy for the second half of the 2020–2021 school year does not
constitute a “change” in J.S.’s placement. Stay-put relief, therefore, is not warranted.
Although the IDEA does not define “current educational placement,” courts “have
explained that a child’s educational placement falls somewhere between the physical school
attended by a child and the abstract goals of a child’s IEP.” Johnson, 839 F. Supp. 2d at 176–77
(internal citations and quotation marks omitted). Typically, “the dispositive factor in deciding a
child’s ‘current educational placement’ should be the IEP actually functioning when the ‘stay put’
is invoked.” Id. at 177 (internal citations and quotation marks omitted). Alternatively, the state
and parents may “otherwise agree” to another placement, which then becomes subject to the
stay-put provision. See § 1415(j). In School Committee of the Town of Burlington v. Department
of Education of the Commonwealth of Massachusetts, the Supreme Court found that an
administrative decision in favor of a private school chosen by the parents “would seem to constitute
an agreement by the State to the change of placement,” thereby making the private school the
current placement. 471 U.S. at 372. This holding is codified at 34 C.F.R. § 300.518(d), which
states that “[i]f a hearing officer in a due process hearing ... agrees with the child’s parents that a
change of placement is appropriate, that placement must be treated as an agreement between the
State and the parents.” 34 C.F.R. § 300.518(d); see also Johnson, 839 F. Supp. 2d at 177 (“[T]he
HOD finding functions as an “agreement” for purposes of the stay-put provision between the
parties [.]”) (citing cases).
Here, Plaintiffs argue that Innercept Academy is J.S.’s “current educational placement,”
contending that the Hearing Officer’s order requiring the District to reimburse Plaintiffs for J.S.’s
placement there for the first half of the 2020–2021 school year makes Innercept Academy the “last
11
agreed upon placement” between OSSE and Plaintiffs. Pls.’ Mot. at 10. In support of this
argument, Plaintiffs rely on two cases in which the courts concluded that, pending parents’
challenges to the substance of the student’s IEP, the placement deemed appropriate by a Hearing
Officer was the student’s “current educational placement” for purposes of the stay-put provision.
First, Plaintiffs discuss District of Columbia v. Vinyard, in which the Court agreed with the parents
that in the absence of a “functioning IEP,” the Hearing Officer’s “unequivocal holding in favor”
of the parents in placing the student at a particular school constituted “an agreement as to [the
student’s] current educational placement for the limited purposes of stay put relief.” 901 F. Supp.
2d at 86; see Pls.’ Mot. at 12. Unlike that case, however, Plaintiffs here do not challenge the
substance of the May 2020 IEP, but rather the appropriate location to implement the services
prescribed therein. See Compl. ¶¶ 67–73; HOD at 26, A.R. 680 (“The adequacy of the services in
the May 14, 2020 IEP is not at issue in this case.”). Therefore, unlike Vinyard, there is an agreed-
upon IEP in place which the Court must consider in determining J.S.’s “current educational
placement.” See Vinyard, 901 F. Supp. 2d at 79 (“Typically, the dispositive factor in deciding a
child’s current educational placement should be the individualized education program actually
functioning when the stay-put is invoked.” (citation omitted)); see also D.K. ex rel. Klein v. Dist.
of Columbia, 962 F. Supp. 2d 227, 234 (D.D.C. 2013) (“The physical school location alone does
not constitute an ‘educational placement.’”).
Plaintiffs next rely on A.D. v. District of Columbia, No. 20-cv-2765 (BAH), 2021 WL
354175 (D.D.C. Feb. 2, 2021), contending that in that case the court “rejected the school system’s
argument that because the [HOD] only granted reimbursement for the first half of the school year,”
the private school attended by the student was “an interim placement” that did not entitle the
student to stay-put protection. Pls.’ Mot. at 13–14. But again, the parents in that case challenged
12
both the substance of the student’s IEP and the proposed school placement, the implementation of
which would have reduced the specialized education and psychological services provided to the
student and required the student to transfer schools. Id. at *5. The court reasoned that it would
undermine the purpose of the stay-put provision to require the student to transfer schools while a
challenge to the IEP was pending in the event the IEP was found to be “inappropriate and
inadequate.” Id.In contrast, Plaintiffs here agreed to the May 2020 IEP, but dispute that the Hughes Center
is the appropriate school for J.S. Plaintiffs do not address the authority in this jurisdiction
indicating that a student’s IEP is typically the dispositive factor in determining the student’s
“current educational placement.” See, e.g., Johnson, 839 F. Supp. 2d at 177; Wimbish v. Dist. of
Columbia, 153 F. Supp. 3d 4, 11 (D.D.C. 2015). In Johnson v. District of Columbia, for example,
this Court concluded that the operative IEP agreed upon between the parties was the student’s
“current educational placement.” 839 F. Supp. 2d at 178. In that case, the Court denied the
parents’ request for a stay-put order, concluding that “[s]ince there is no challenge to the IEP itself,
until the Hearing Officer indicates otherwise, the District is free to place [the student] at any facility
that it determines can provide the services required by the [operative] IEP.” Id. As in Johnson,
the dispute here is which physical location can implement the services provided in the May 2020
IEP, not whether the IEP itself appropriately addresses J.S.’s educational needs. Accordingly, the
Court adopts the same reasoning offered in that case: absent a challenge to the IEP itself, the
District may place J.S. at “any facility that it determines can provide the services required” by the
May 2020 IEP. Id.
Here, the Hearing Officer specifically declined to order J.S.’s continued placement at
Innercept Academy for the second half of the 2020–2021 school year because “it cannot fulfill
13
[J.S.’s IEP]. HOD at 38, A.R. 692 (emphasis added). Notably, the Hearing Officer found that
Innercept Academy provides “17.5 hours of school per week” and “offers no special education
services taught by special education teachers,” whereas the IEP provides for J.S. to receive “26
hours per week of Specialized Instruction Services.” HOD at 38, A.R. 692. In contrast, the
Hearing Officer concluded that the Hughes Center “could fulfill the requirements set forth in the
Student’s DCPS IEP.” HOD at 26, A.R. 680. Accordingly, consistent with other courts in this
jurisdiction, the Court shall decline to grant Plaintiffs relief under the stay-put provision to
maintain J.S.’s placement at a school that cannot implement the IEP agreed upon by the parties.
See, e.g., Johnson, 839 F. Supp. 2d at 177–180; D.K. ex rel. Klein, 962 F. Supp. 2d at 233–34.
In addition, the Hearing Officer’s order requiring the District to reimburse Plaintiffs for the
tuition and expenses associated with J.S.’s enrollment at Innercept Academy was based primarily
on the District’s inability to “make a suitable placement for [J.S] in time for the start of the 2020–
2021 school year because the only OSSE-approved program which admitted Student did not expect
an opening until at least the second week in October [2020].” HOD at 37, A.R. 691. But based
on the record before the Court, the Hughes Center had availability for J.S. to enroll for the second
half of the school year, but Plaintiffs declined to enroll J.S. there. See Pls.’ Mot. Ex. 2, Jan. 26,
2021 Email from Katie Reda (OSSE).
As a final point, Plaintiffs contend that the District failed to convene a meeting after the
HOD was issued to “discuss J.S.’s potential transfer” to the Hughes Center, “as suggested by the
Hearing Officer.” Pls.’ Reply at 10. Plaintiffs refer to the Hearing Officer’s decision to deny
Plaintiffs’ request to fund J.S.’s prospective attendance at Innercept Academy for the second half
of the 2020–2021 school year “without prejudice to any decision by OSSE, with the concurrence
of [Plaintiffs] and [J.S.’s] DCPS team, to further extend [J.S.’s] placement at Innercept Academy.”
14
HOD at 30, A.R. 693. Plaintiffs contend that this language “provided explicit guidance that the
parties should also consider whether to extend J.S.’s placement at Innercept[.]” Pls.’ Mot. at 18.
Plaintiffs, however, do not cite any legal authority for the proposition that the District is required
to convene a meeting with parents in such circumstances. Accordingly, the Court concludes that
the District’s decision not to hold a meeting with Plaintiffs following the HOD has no effect on its
decision to deny Plaintiffs’ request for stay-put relief.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
15