A.D. v. Dist. of Columbia

A.D., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 20-cv-2765 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 2, 2021

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiffs, A.D., a special-education eligible student residing in the District of Columbia, and her parents, E.D. and C.D., are before this Court asserting their rights, under 20 U.S.C. § 1415(j), the "stay-put" provision of the Individuals with Disabilities Education Act ("IDEA").¹ They seek to maintain the student's current educational placement at The Lab School of Washington, see Pls.' Mot. Preliminary Inj. ("Pls.' Mot.") at 1, ECF No. 8, and tuition reimbursement retroactively to the start of the 2020-21 school year, see Pls.' Mem. Supp. Mot. Preliminary Inj. ("Pls.' Mem.") at 11, ECF No. 8, and prospectively "throughout the resolution of this appeal," Pls.' Reply Def.'s Opp'n Mot. Preliminary Inj. ("Pls.' Reply") at 6, ECF No. 11. The District of Columbia ("the District") opposes plaintiffs' request for stay-put relief. See Def.'s Opp'n Pls.' Mot. Preliminary Inj. ("Def.'s Opp'n") at 1, ECF No. 10. Upon consideration of the parties' arguments, plaintiffs' motion is granted.

I. BACKGROUND

The facts surrounding the plaintiffs' three due process complaints culminating in the instant lawsuit and pending motion for a stay-put order are summarized below, followed by a brief review of the procedural history.

A. Factual Background

A.D. is a fifteen-year-old, educationally disabled student who currently attends The Lab School, a full-time, private school in Washington, D.C. See Compl. ¶¶ 4, 6, ECF No. 1. From pre-Kindergarten through first grade, A.D. attended Hyde-Addison Elementary School ("Hyde-Addison"), a public school within the District of Columbia Public Schools system ("DCPS"). Id. ¶ 7. While attending Hyde-Addison, A.D.'s parents requested academic and cognitive testing due to A.D.'s ongoing struggles with reading, writing, spelling, and her social interactions with peers, id. ¶¶ 7-8, but DCPS did not provide the requested testing nor any special education services to A.D., id. ¶ 8.

In August 2012, A.D. enrolled in another school, Creative Minds International Public Charter School ("Creative Minds"), for second grade, where she received an assessment "to determine her cognitive and academic functioning and any disabilities that might have been impacting those disabilities," id. ¶ 10. Based on that assessment, Creative Minds' Individualized Education Program ("IEP") Team found A.D. eligible to receive special education services under the IDEA and developed an IEP. Id. ¶ 11. Over the following four years, however, A.D. failed to make "appropriate educational progress" while receiving "minimal services" at Creative Minds. Id. ¶ 12.

In January 2016, A.D. underwent a psychoeducational evaluation, id. ¶ 13, which concluded that A.D. continued to have a "Specific Learning Disability [("SLD")] in the area of writing" and experienced "weaknesses in areas of attention control, working memory andprocessing speed," id. The evaluation was submitted to Creative Minds, id. ¶ 14, prompting the school to prepare a new IEP on February 10, 2016 ("2016 IEP"), to provide A.D. with "one hour per week of specialized instruction outside general education, 30 minutes per week for Behavioral Support Services ('BSS'), and 30 minutes per week of occupational therapy ('OT')." Def.'s Opp'n, Ex. 3, Hearing Officer Determination, September 8, 2020 ("September 2020 HOD") ¶ 3, ECF No. 10-3.

A.D.'s parents believed the 2016 IEP adopted by Creative Minds was an "inadequate educational program," Compl. ¶ 16, and thus initiated an administrative due process action. Since that time, litigation has been sporadically ongoing in this Court against the District over the sufficiency of this 2016 IEP and two subsequent IEPs issued by DCPS in December 2018 and November 2019, as described below.

1. July 27, 2018 Hearing Officer Determination on First Due Process Complaint

Due to their dissatisfaction with the 2016 IEP, at the beginning of the 2016-17 school year, A.D.'s parents removed A.D. from Creative Minds and enrolled her at The Lab School, a "full-time, nonpublic school approved for special education placements in the District of Columbia for Children with learning disabilities, attentional, executive, and language disorders, and sensory-motor/sensory-integration needs" like A.D. Id. ¶ 16-17. Plaintiffs subsequently filed a due process complaint against Creative Minds for "failure to provide an appropriate IEP in February 2016 for the 2016-17 and 2017-18 school years," and sought tuition reimbursement for The Lab School for the 2016-17 and 2017-18 school years. September 2020 HOD ¶ 5.² This complaint was resolved in a Hearing Officer Determination ("HOD") issued on July 27,2018 ("July 2018 HOD"). Pls.' Mem., Ex. 1, July 2018 HOD, ECF No. 8-1. Specifically, the July 2018 HOD determined that the Creative Minds "denied the Student educational benefit, and therefore a [free appropriate public education ("FAPE")], through its IEP dated February, 2016," July 2018 HOD at 16, but nevertheless did not provide for all of the relief requested. Plaintiffs were granted reimbursement for only one-half of The Lab School tuition for the 2016-17 school year, rather than the requested reimbursement for that entire school year as well as the 2017-18 school year. Id. at 23. The July 2018 HOD denied reimbursement for the 2017-18 school year because DCPS, not Creative Minds, was A.D.'s local education agency ("LEA") for that school year, see July 2018 HOD at 18, 23, and reduced the reimbursement award for 2016-17 by half because "[p]laintiffs failed to provide Creative Minds proper notice under 20 U.S.C. § 1412(a)(10)(C)(iii)," A.D. v. Creative Minds Int'l Public Charter School, Civil Action No. 18-cv-2430 (CRC) (DAR), 2020 U.S. Dist. LEXIS 184173 at *8-9 (D.D.C. Sept. 28, 2020); July 2018 HOD at 22.

Plaintiffs appealed the July 2018 HOD findings, and on September 28, 2020, another Judge on this Court adopted, over Creative Minds' objections, the Magistrate Judge's Report and Recommendation, finding that: (1) the February 2016 IEP was inadequate under the IDEA, A.D. v. Creative Minds Int'l Public Charter School, 2020 U.S. Dist. LEXIS 184173 at *13; and (2) plaintiffs complied with the notice provisions of the IDEA and were thereby entitled to full tuition reimbursement, id. at *17. Creative Minds was ordered to pay the tuition reimbursement for the full 2016-17 school year. Id. at *23.

During the summer of 2018, A.D.'s parents enrolled her as a student in DCPS to begin the special education eligibility process. Compl. ¶ 24. A variety of diagnostic tests were administered to A.D., September 2020 HOD ¶¶ 6-8; Compl. ¶ 25-32, resulting in the November28, 2018 DCPS determination that A.D. "remained eligible for special education and related services with a classification of [multiple disabilities] for SLD and Other Health Impairment ('OHI')," September 2020 HOD ¶ 9. A new, third IEP was prepared by DCPS, on December 5, 2018, that provided for five hours per week of specialized instruction outside general education, ten hours per week of specialized instruction in general education, two hours per month of BSS and two hours per year of OT consultation services. Id. ¶ 10. Shortly thereafter, however, on February 12, 2019, The Lab School prepared an IEP for A.D. ("February 2019 IEP"), prescribing thirty-two hours per week of specialized instruction, three hours per month of individual psychological services from a clinical psychologist, and three hours per month of group psychological services, along with specific, measurable learning objectives. Id. ¶ 11.

2. August 5, 2019 Hearing Officer Decision on Second Due Process Complaint

Plaintiffs filed a second Due Process Complaint on April 22, 2019 challenging the December 2018 IEP and alleging that (1) the District failed to provide an appropriate IEP and placement for the 2018-19 school year, citing the lack of full-time specialized instruction or placement in appropriate outside programs, and inappropriate building and class size, noise levels, pace of instruction, instructional presentation method and level of staffing, and (2) The Lab School was an appropriate placement for the student. Id. ¶ 12. The Hearing Officer Decision issued on August 5, 2019 ("August 2019 HOD"), again, found in plaintiffs' favor, concluding that the District had not met its burden of persuading that five hours per week of specialized instruction outside general education and ten hours per week of specialized instruction within general education were "reasonably calculated to enable [A.D.] to make appropriate progress in [A.D.'s] circumstances," and that The Lab School is "proper and appropriate for [A.D.]." Id. ¶ 12. Consistent with these findings, DCPS was ordered toreimburse plaintiffs for tuition and related services at The Lab School "for the entire 2018-19 school year, for the first half of the 2019-20 school year, and 'until a FAPE is offered by DCPS.'" Id. (quoting August 2019 HOD at 21).

Notably, an HOD ordering tuition reimbursement at a non-public school is considered an "agreement" for "stay-put" purposes. 34 C.F.R. § 300.518(d) ("If 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"). The August 2019 HOD reflects A.D.'s last agreed-upon placement.

Pursuant to the August 2019 HOD, A.D. began ninth grade at The Lab School for the 2019-20 school year funded by DCPS. Compl. ¶ 51. A new, fourth IEP issued by DCPS on November 25, 2019 ("November 2019 IEP") prescribed twenty hours per week of specialized instruction outside general education, three hours per month of BSS, two hours per month of OT services, and thirty minutes per month of OT consultation services. September...