G.G. v. District of Columbia

924 F.Supp.2d 273

G.G. et al., A minor, by his parents and next friends, Richard and Victoria GERSTEN, Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 12–229 (RC).

United States District Court, District of Columbia.

Feb. 20, 2013.

Michael J. Eig, Paula Amy Rosenstock, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.

Veronica A. Porter, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Granting in Part and Denying in Part the Plaintiffs' Motion for Summary Judgment; Denying the Defendant's Cross–Motion for Summary Judgment

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

The plaintiffs here are G.G., a minor child who is eligible to receive special education services, and his parents. G.G. attended a public school in the District of Columbia through the second grade, but after he was diagnosed with Asperger Syndrome, his parents placed him in a non-public school in Maryland. His parents subsequently filed a due process complaint against the District of Columbia Public Schools (“the District” or “DCPS”). The complaint alleged that the District had not timely evaluated or made an eligibility determination for G.G., that it had not timely created an Individualized Education Program (“IEP”) for him, and that it had thereby denied G.G. a free and appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. During the ensuing due process hearing, a hearing officer held that the District had violated the IDEA by failing to make a timely evaluation and determination of G.G.'s eligibility for special education services. The hearing officer further held, however, that the District still had time to develop an IEP, and that it had therefore not denied G.G. a FAPE. The hearing officer also held that G.G.'s placement at the non-public school was inappropriate, as was any reimbursement for his attendance there. The hearing officer thus ordered that within ten days of receiving the hearing on determination (“HOD”), the District would find G.G. eligible for special education and related services as a child with autism, which would trigger the creation of an IEP.

G.G. and his parents now appeal the hearing officer's decision, contending that some aspects of the holding should be vacated. The parties have filed cross-motions for summary judgment. Because the District failed to timely evaluate and make an eligibility determination for G.G., and thus effectively deprived him of a timely IEP, G.G. was denied a FAPE and the plaintiffs are entitled to partial reimbursement for his placement at a non-public school. The Court thus grants in part and denies in part the plaintiffs' motion, and denies the defendant's cross-motion.

II. FACTUAL & PROCEDURAL BACKGROUND

G.G. is a third grade student who has been diagnosed with Asperger syndrome, severe anxiety, and other issues that place him in need of special education services. Pls.' Statement of Material Facts (“Pls.' Stmt.”) ¶¶ 1–2. His parents first grew concerned with his development when he was in preschool, when they began to notice that he was inflexible and that he had developed social problems with anger and frustration. Id. ¶ 3. G.G.'s parents met with his preschool teachers to express their concerns, and enrolled him in private therapy. Id. ¶ 4. When G.G. entered kindergarten, he attended Horace Mann Elementary School, a public school in the District of Columbia, where he remained enrolled through the second grade. Id. ¶ 5. During the first grade, G.G. demonstrated serious anxiety, including clenching his fists and teeth, continually repeating nonsensical phrases, and banging his head on his desk. Id. ¶¶ 6–7. He also had significant problems with handwriting and with interacting with his classmates. Id. ¶ 8. Despite these difficulties, by the end of the first grade, nobody from the District suggested evaluating G.G. Id. ¶ 9.

As indicated above, G.G. was enrolled in the second grade at Horace Mann during the 2010–11 school year. Id. ¶ 10. His classroom had 27 students. Id. ¶ 11. G.G.'s parents remained concerned about his behavior, noting that it had worsened from previous years. Id. ¶ 12. He became increasingly withdrawn and escaped to the restroom multiple times per week, to avoid being in the classroom. Id. ¶ 13. His parents observed that he underwent “commensurate levels of disabling anxiety,” including banging his head, developing tics, and chewing on his shirt to the point that it was covered in holes and saliva.¹Id. ¶ 14. Because of their growing concerns, G.G.'s parents requested a meeting with his school principal. Id. ¶ 15. G.G.'s parents met with her and two others from the school during the spring of 2011, where the school staff did not offer any insight as to what was happening to G.G., but where everyone agreed to seek out a neuropsychological examination. Id. ¶ 17. G.G. underwent this evaluation in March of 2011 at Children's National Medical Center, where he was diagnosed with Asperger Syndrome. Id. ¶ 19.

During the summer of 2011, G.G.'s parents began researching programs that address this condition, and discovered the Model Asperger Program (“MAP”) at Ivymount, a non-public school in Maryland. Id. ¶ 23. The MAP is targeted toward working with students who have Asperger Syndrome. Id. ¶ 24. On June 13, 2011, G.G.'s parents sent a letter through counsel to Horace Mann's principal, requesting that a meeting be scheduled to develop an IEP for their son. Id. ¶ 25. On June 21, 2011, the principal responded, requesting that they come in for an informal meeting. Id. ¶ 26. G.G.'s parents agreed to attend the informal meeting, but again inquired about scheduling an IEP meeting. Id. ¶ 27. During the June 23 meeting, the principal focused on the benefits of Section 504 plans, emphasizing the ease and speed with which they could be completed, compared to the development of an IEP. Id. ¶ 28. Though G.G.'s parents were intent on proceeding with the IEP process, they agreed to consider a 504 plan, as well, and stated that they would follow up with the principal the next day. Id. ¶ 29. They also offered to give the principal copies of G.G.'s evaluations, but she indicated that they were not needed at that time. Id. ¶ 30. The next day, G.G.'s mother emailed the principal, again requesting that the District continue with the IEP process. Id. ¶ 31. G.G.'s parents received no follow-up correspondence from the District.

On August 4, 2011, G.G.'s mother emailed the principal, informing her that G.G. had been accepted into the MAP, and that he would be enrolled there at public expense during the fall of 2011. Id. ¶ 33. G.G.'s mother also repeated her intention for the District to continue with the IEP process. Id. On August 17, the principal responded, informing G.G.'s parents that for the District to proceed with the special education process, G.G. would have to re-enroll at his neighborhood DCPS school, Stoddert Elementary School. Id. ¶ 34. When G.G.'s parents attempted to re-enroll him there, however, the school refused to accept the forms, and instead directed them to DCPS's Private and Religious Office (“PRO”). Id. ¶ 37. His parents subsequently submitted the requisite forms to this office, id. ¶ 38, but heard nothing from the District regarding scheduling evaluations or the development of an IEP, id. ¶ 39.

G.G.'s parents enrolled him in the MAP at Ivymount in August of 2011, id. ¶ 46, and filed a due process complaint on October 27, 2011, id. ¶ 39. The complaint alleged that the District had denied G.G. a FAPE by failing to timely evaluate and provide him with an IEP. Id. ¶ 53. On November 4, G.G.'s parents received a letter of invitation from the District to attend an eligibility meeting. Id. ¶ 40. On November 15, they attended a PRO meeting to review G.G.'s evaluations, where it was determined that additional assessments were necessary to determine G.G.'s eligibility for special education services. Id. ¶ 41. At a November 18 meeting, the District requested his parents' consent to evaluate G.G. for special education eligibility. Id. ¶ 42. On December 5, the District issued a Prior Written Notice, proposing that G.G. be observed at the MAP, to obtain additional information to determine eligibility. Id. ¶ 43.

By the December 16 due process hearing, the District had not observed or evaluated G.G. at Ivymount, nor had it contacted anybody at the MAP or at Ivymount to arrange to observe him. Id. ¶ 45. Meanwhile, G.G. attended school at the MAP, where six staff members and three service providers worked with his class of nine students. Id. ¶¶ 47–8. The MAP developed an IEP for G.G. in October of 2011. Id. ¶ 49. G.G. made much progress at Ivymount; his anxiety was significantly reduced, and he progressed academically. Id. ¶ 52.

The due process hearing was held on December 16 and 19. HOD at 2. The hearing officer determined that the District had violated the IDEA by failing to make a timely evaluation of G.G., as well as a timely determination of his eligibility for special education and related services as a child with disability under the IDEA. Id. at 4, 39, 42. The hearing officer concluded, however, that because the deadline for creating an IEP and proposing an appropriate special education program for G.G. had not yet passed when the parents filed the due process complaint, the District had not denied him a FAPE. Id. at 39. The hearing officer also held that G.G.'s prospective placement in the MAP was not appropriate because it was not the Least Restrictive Environment (“LRE”) for him, and that he was not entitled to reimbursement for his enrollment there. Id. In addition, the District was ordered to convene a multi-disciplinary (“MDT”) or IEP team within ten days of receiving the HOD, and the team was required to make a finding that the student was eligible for special education and related services as...