J.S. v. Dist. of Columbia

J.S. et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 21-0293 (CKK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

April 15, 2021

MEMORANDUM OPINION

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.

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.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. SeeHearing 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.'slocation 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 MeghanProbert, 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,...