                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
DISTRICT OF COLUMBIA,          )
                               )
     Plaintiff,                )
                               )
          v.                   )    Civ. Action No. 10-456 (EGS)
                               )
DIANNE NELSON,                 )
Guardian and next              )
friend of C.P., a minor,       )
                               )
     Defendant.                )
                              )

                        MEMORANDUM OPINION

     Plaintiff District of Columbia brings this action under the

Individuals with Disabilities Education Act (“IDEA”) against

Dianne Nelson, the guardian and next friend of C.P., a minor,

challenging certain portions of an administrative decision

concerning the education of C.P.   Pending before the Court are

the parties’ cross-motions for summary judgment.   Upon

consideration of the motions, the responses and replies thereto,

the applicable law, the entire record, and for the reasons set

forth below, plaintiff’s motion for summary judgment is hereby

GRANTED, and defendant’s cross-motion for summary judgment is

hereby DENIED.   The Court concludes that the hearing officer’s

decision is contrary to the IDEA and, accordingly, the Court

hereby REMANDS this matter to the administrative hearing officer

for further proceedings consistent with this opinion.
I.   FACTUAL BACKGROUND

     Defendant C.P. is a high school student who lives in the

District of Columbia with her mother, defendant Dianne Nelson.

Administrative Record (“AR”) at 44.   C.P. suffers from Attention

Deficit Hyperactivity Disorder and has borderline cognitive

skills.   AR at 7.   During the 2008-2009 school year, C.P.

attended ninth grade at and received special education services

from Cesar Chavez Public Charter School.   District of Columbia

Public Schools (“DCPS”) was the relevant Local Education Agency

for the Charter School and supervised C.P.’s special education

services.

     At issue in the instant case is the December 21, 2009

determination issued by an independent hearing officer in

response to a complaint filed by Nelson regarding C.P.’s

individual education plan (“IEP”).    In her complaint before the

hearing officer, Nelson proposed a full-time special education

placement for C.P. at Accotink Academy, a private institution in

Springfield, VA that provides full-time special education

services to District of Columbia students.    AR at 15.   After an

evidentiary hearing was held, the hearing officer determined

that C.P. was “entitled to a full-time special education day

school in order to progress toward a duly awarded diploma” and

ordered DCPS to place C.P. at Accotink Academy at public expense

for the 2009-2010 school year. AR at 20.

                                  2
 
      Plaintiff challenges the hearing officer’s determination

(“HOD”), specifically Paragraph Two of the order.   Paragraph Two

states:

      The Accotink Academy staff, with the Petitioner, shall
      be responsible for the revision and implementation of
      the Student’s IEP. The Respondent [DCPS] shall remain
      responsible for the supervision and cost of the
      special education and related services provided to the
      Student, ensuring that sufficient education and
      supports are provided for the Student to permit her to
      graduate with a diploma no later than the semester
      ending following her 21st birthday. Respondent staff
      shall have no authority to object to the special
      education and related services provided unless there
      is clear data indicating the Student is not making
      sufficient progress and Accotink Academy is unwilling
      or unable to alter the program to effectively address
      any lack of expected progress. Thus, if the Student is
      not making sufficient progress toward a diploma, the
      Respondent may make a change in location to a
      comparable full-time special education day school,
      with two weeks[’] notice to the Petitioner and
      Accotink Academy, pursuant to 34 C.F.R. § 300.503. If
      Accotink Academy fails to adhere to due process
      requirements as directed by this order or the
      Respondent, the Respondent may make a change in
      location following the due process requirements just
      described.

AR at 20-21.   Plaintiff asserts that this paragraph “contains

language that is erroneous as a matter of law that must be

stricken to permit full compliance with the [IDEA].”   Pl.’s Mot.

1.

II.   STATUTORY FRAMEWORK

      The purpose of the IDEA is “to ensure that all children

with disabilities have available to them a free appropriate

public education [“FAPE”] that emphasizes special education and

                                 3
 
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).   A “free

appropriate public education” must be “sufficient to confer some

educational benefit.” Bd. of Educ. of Hendrick Hudson Cent. Sch.

Dist. v. Rowley, 458 U.S. 176, 200 (1982).    Parents or guardians

may “present a complaint with respect to any matter relating to

the identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education

to such child.” 20 U.S.C. § 1415(b)(6)(A). Following a parent’s

due process complaint, an independent hearing officer determines

whether the student received a free appropriate public

education.    See id. § 1415(f)(3)(E)(i).   After the hearing,

“[a]ny party aggrieved by the findings and decision . . . shall

have the right to bring a civil action with respect to the

complaint presented . . . .”    Id. § 1415(i)(2)(A).

     Under the IDEA, the hearing officer’s decision is afforded

“less deference than is conventional in administrative

proceedings.” Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C.

Cir. 2005).   However, while a court must “engage in a more

rigorous review of the decision below than is typical in

administrative cases,” a court should “nevertheless accord the

Hearing Officer’s decision due weight.” Wilson v. Dist. of



                                  4
 
Columbia, 770 F. Supp. 2d 270, 274 (D.D.C. 2011) (internal

citations omitted).    As this Circuit has explained:

        Deference to the hearing officer makes sense in a
        proceeding under the Act for the same reasons that it
        makes sense in the review of any other agency action -
        - agency expertise, the decision of the political
        branches (here state and federal) to vest the decision
        initially in the agency, and the costs imposed on all
        parties of having still another person redecide the
        matter from scratch. But the district court’s
        authority under § 1415(e) to supplement the record
        below with new evidence, as well as Congress’s call
        for a decision based on the ‘preponderance of the
        evidence,’ plainly suggest less deference than is
        conventional.

Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988).

III. ANALYSIS

        DCPS asserts that it is entitled to summary judgment

because Paragraph Two conflicts with the IDEA in a number of

respects.    Defendant, in its cross-motion for summary judgment,

argues that DCPS is not an “aggrieved party” under the IDEA, and

that the HOD - when read in its entirety – does not violate the

IDEA.    Having carefully reviewed the HOD’s order, the parties’

arguments, and the applicable law, the Court concludes that the

HOD’s order is contrary to the IDEA.    However, particularly

because the relief plaintiff has requested is the deletion of a

significant portion of the hearing officer’s order, and

recognizing that the hearing officer is better equipped to issue

a revised order in compliance with the IDEA that will ensure

that C.P. has a free appropriate public education designed to

                                   5
 
meet her unique needs, the Court will REMAND the matter to the

hearing officer rather than substitute its own judgment for that

of the hearing officer.

        Each of the challenges raised by plaintiff to the existing

HOD are now addressed in turn.1

        A.   The IEP Team

        First, DCPS objects to the language in the HOD stating that

the “Accotink Academy staff, with the Petitioner, shall be

responsible for the revision and implementation of the Student’s

IEP.”    AR at 20.   Plaintiff asserts that this provision is “100%

contrary to IDEA and must be reversed because DCPS, as the

[Local Education Agency], is required to be a member of this

student’s IEP team.”     Pl.’s Mem. 9-10.     Plaintiff argues that

the HOD’s order “not only improperly delegates full authority

over C.P.’s IEP to Accotink and C.P.’s mother, by implication,

it also improperly enjoins DCPS from exercising its rights and


                                                            
1
               As a threshold issue, defendant claims that DCPS is not an
“aggrieved party” within the meaning of § 1415(i)(2)(A) and
therefore may not bring a civil action. In particular,
defendant asserts that DCPS is not an aggrieved party because
DCPS is not restricted or prevented from carrying out its
obligations under the IDEA if the HOD is read in its entirety.
The Court finds this argument wholly unpersuasive. DCPS
asserts, and the Court agrees, that the HOD “imposed specific
obligations upon DCPS that are contrary to IDEA and which place
DCPS in the untenable position of having to choose between
compliance with the law or compliance with the HOD.” Pl.’s Opp.
9.

 

                                     6
 
responsibilities to this student to participate in all aspects

of her IEP.”   Pl.’s Mem. 10.

     In response, defendant argues that the very next sentence

of Paragraph Two, providing in part that DCPS “shall remain

responsible for the supervision and cost of the special

education and related services provided to the Student,”

provides for a sufficient role for DCPS.   In particular,

defendant asserts that “the District, the Accotink Academy

staff, the parent and the student are certainly members of the

IEP as the District remains financially responsible for C.P.’s

access to FAPE up and until the time her needs change, or the

parent and the District agree its participation is not

necessary, its attendance and participation at future meetings

is not prohibited, in fact it is mandated.”   Def.’s Mem. 11.

     The Court agrees with plaintiff.   Section 1414(d)(1)(B)(iv)

of the IDEA requires that a representative of the local

educational agency be a member of the IEP Team, and Section

1414(d)(4)(A)(ii) states that “[t]he local educational agency

shall ensure that . . . the IEP Team . . . revises the IEP as

appropriate[.]” Id. (emphasis added).   The HOD here is therefore

inconsistent with the IDEA when it states that only the private

school and the parent “shall be responsible for the revision and

implementation of the Student’s IEP.”   AR at 20.   The next

sentence, which does assign DCPS the responsibility of the

                                7
 
“supervision and cost of the special education and related

services provided to the Student,” still fails to provide DCPS

with any role specifically as it relates to the IEP and the IEP

Team.    Contrary to Nelson’s    assertion, the language of the HOD

even read in its entirety does not afford DCPS the ability to

fully comply with its responsibilities under the IDEA.

        B.   C.P.’s Graduation

        Second, DCPS objects to the HOD language stating that the

“Respondent [DCPS] shall . . . ensur[e] that sufficient

education and supports are provided for the Student to permit

her to graduate with a diploma no later than the semester ending

following her 21st birthday.” A.R. 20.       DCPS argues the “free

appropriate public education” standard set forth in IDEA does

not guarantee any substantive outcome.       Rather, DCPS is only

required to provide a “basic floor of opportunity.”      Pl.’s Opp.

11, citing Rowley, 458 U.S. at 201.      Nor, according to

plaintiff, does mere advancement from grade to grade mean that a

FAPE has necessarily been provided to C.P. Pl.’s Mem. 11.      In

response to plaintiff’s objection, defendant asserts that

plaintiff has misinterpreted Rowley and that “the fact that C.P.

seeks to obtain a high school diploma furthers the purposes and

intent of the entire IDEA Act.”     Def.’s Mem. 11-12.

        Again, the Court agrees with DCPS.    The hearing officer

erred by requiring that DCPS provide sufficient services to

                                    8
 
ensure C.P. graduates by the semester after her twenty-first

birthday.   The District of Columbia is eligible for federal

funding under the IDEA if it “has in effect policies and

procedures to ensure. . . . free appropriate public education is

available to all children with disabilities residing in the

State between the ages of 3 and 21[.]”   20 U.S.C. § 1412(a).

The “standard of free appropriate education,” however, “does not

require an educational program to maximize the potential of

handicapped children, but mandates, more modestly, one

sufficient to confer some educational benefit.”    Leonard v.

McKenzie, 869 F.2d 1558, 1561 (D.C. Cir. 1989) (internal

quotations and citations omitted).    As the Supreme Court

explained in Rowley,

     In passing [the IDEA], Congress sought primarily to
     make public education available to handicapped
     children. But in seeking to provide such access to
     public education, Congress did not impose upon the
     States any greater substantive educational standard
     than would be necessary to make such access
     meaningful. Indeed, Congress expressly ‘[recognized]
     that in many instances the process of providing
     special education and related services to handicapped
     children is not guaranteed to produce any particular
     outcome.’ Thus, the intent of the Act was more to open
     the door of public education to handicapped children
     on appropriate terms than to guarantee any particular
     level of education once inside.

Rowley, 458 U.S. at 198 (quoting S. Rep. No. 94-168, at 11

(1975)).    In the instant case, the hearing officer’s order that

DCPS “ensur[e] that sufficient education and supports are


                                  9
 
provided for the Student to permit her to graduate with a

diploma no later than the semester ending following her 21st

birthday” is therefore inconsistent with the IDEA because it

requires DCPS to ensure a particular outcome.

     C.   Conditions Placed on DCPS’s Objections

     Next, plaintiff challenges the language in the HOD stating

that DCPS “shall have no authority to object to the special

education and related services provided unless there is clear

data indicating the Student is not making sufficient progress

and Accotink Academy is unwilling or unable to alter the program

to effectively address any lack of expected progress.” AR at 20

(emphasis added).   Plaintiff objects to this language, arguing

that it “improperly limits DCPS’ ability to participate in the

development of an IEP and placement of the student by

subordinating the authority of the DCPS IEP team to that of

Accotink, a private school.”   Pl.’s Mem. 12.

     Defendant responds by asserting that the language is

consistent with the IDEA because “if progress is not being met

as it relates to specialized instruction, such a lack of

progress must be addressed by the IEP team. In addressing the

lack of progress, data must be collected and reviewed to

ascertain the causes on no progress.”   Def.’s Mem. 12.

According to the defendant, the HOD’s order “does not prohibit

or deny the District from assuming the role that IDEA has

                                10
 
mandated for it as the local educational agency.” Def.’s Mem.

13.

        Again, the Court finds that the language of the HOD, which

prohibits DCPS from objecting to the special education and

related services provided to C.P. unless there is “clear data

indicating the Student is not making sufficient progress and

Accotink Academy is unwilling or unable to alter the program to

effectively address any lack of expected progress,” restricts

the actions of DCPS in a manner that is inconsistent with the

IDEA.    As noted by the plaintiff, not only is the requirement of

“clear data” not present in the IDEA, but the HOD would require

DCPS to wait until a private school refuses to act before DCPS

would be permitted to carry out its duties under the IDEA.       This

is patently inconsistent with the IDEA.    In particular, Section

1414(d)(4)(A) states that:

        The local educational agency “shall ensure that . . .
        the IEP Team (i) reviews the child’s IEP periodically,
        but not less frequently than annually, to determine
        whether the annual goals for the child are being
        achieved; and (ii) revises the IEP as appropriate to
        address—

             (I) any lack of expected progress toward the
             annual goals and in the general education
             curriculum, where appropriate;

             (II) the results of any reevaluation conducted
             under this section;

             (III) information about the child provided to, or
             by, the parents, as described in subsection
             (c)(1)(B);

                                  11
 
             (IV) the child’s anticipated needs; or

             (V) other matters.

If, as the HOD states, DCPS is required to wait for inaction by

the Accotink Academy before it may object to or revise C.P.’s

IEP, it will not be able to comply with the requirements of the

IDEA.

        D.   Comparable Full-Time Day School

        DCPS also argues that the HOD’s requirement that “if the

Student is not making sufficient progress toward a diploma [at

Accotink Academy], the Respondent may make a change in location

to a comparable full-time special education day school,” is

contrary to the IDEA.    DCPS asserts that since the IDEA requires

that the IEP team place C.P. in the “least restrictive

environment,” the HOD is inconsistent with the IDEA because it

requires the IEP team to place C.P. in a full-time special

education school and does not allow the IEP Team to consider

whether a regular educational environment, or part-time

placement in a special education school, would suffice.

        The IDEA requires that children with disabilities be placed

in the “least restrictive environment,” i.e. that, “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


                                  12
 
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)(emphasis

added).

     Defendant argues that, despite the language in Paragraph

Two, DCPS retains the authority to move C.P. to a less

restrictive environment.   In support of this, the defendant

points to language contained in Paragraph 6 of the HOD’s order

which states that:

     Nothing in this order is intended to restrict the IEP
     team from making other changes appropriate and
     necessary for the Student to be provided a free and
     appropriate public education, except that the student
     will remain in a full time special education day
     school until she graduates with a diploma, ages out,
     or the Student or the Petitioner (whom ever has
     decision making authority for the Student) and the
     Respondent agree to a new placement (more or less
     restrictive setting).

AR at 22.

     Upon consideration of the relevant provisions in the HOD,

the Court concludes that the language of the HOD here is again

inconsistent with the IDEA.    In particular, even taking

Paragraph 6 into account, which appears to allow DCPS to provide

C.P. with part-time placement in a special education school


                                 13
 
instead of full-time placement only if the student and/or parent

agrees, the Court concludes that the HOD prevents DCPS from

complying with the IDEA requirement of a “least restrictive

environment.”

     E.     Notice Requirement

     Finally, plaintiff argues that the HOD cannot require DCPS

to give two weeks’ notice to C.P.’s parent and the school,

Accotink, before making changes to C.P.’s placement.   With

respect to notification to the private school, DCPS argues that

nothing in the IDEA requires any prior written notice to a

private school at all before a proposed change in placement is

initiated by the local educational agency.   With respect to

notification to the parent, DCPS argues that although the IDEA

requires that notice be provided to a parent within “a

reasonable time before” the agency proposes to “initiate or

change” a student’s IEP, nothing in the IDEA or the accompanying

regulations require a minimum or maximum amount of time for DCPS

to give notice to a parent.

     Defendant, in response, concedes that the IDEA does not

require schools to be notified, but argues that “[n]onetheless

there is no violation that could be levied against the District

for failing to provide prior written notice to Accotink

Academy.”   Def.’s Mem. at 13.   Defendant further argues that

DCPS is not harmed by a requirement that it give two weeks’

                                 14
 
notice to C.P.’s parent and private school and that two weeks’

notice is not unreasonable. Def.’s Mem. 13.

      Regarding the notification to the parent, the Court will

defer to the hearing officer.   The IDEA requires that a local

educational agency must give written notice to a student’s

parent or guardian before changing a student’s educational

placement.   20 U.S.C. § 1415(b)(3).   This notice must be given

within a “reasonable time” before the agency acts.   34 C.F.R.

§ 300.503(a).    The Court concludes that the hearing officer’s

determination – that a requirement of two weeks’ notice to the

parent was “reasonable” within the meaning of 34 C.F.R.

§ 300.503(a) – is not contrary to the IDEA, and it was within

the discretion of the hearing officer to make such a

determination.

      However, HOD’s requirement that DCPS give notice to the

private school is contrary to the IDEA.   The IDEA and the

relevant regulations, although they detail the circumstances

under which a parent must be given notice, do not include any

requirement that a private school be notified.   Accordingly, the

Court concludes that Congress did not intend for such a

requirement to be imposed, and the HOD erred by mandating it.

IV.   CONCLUSION

      For the foregoing reasons, plaintiff’s motion for summary

judgment is hereby GRANTED, and defendant’s cross-motion for

                                 15
 
summary judgment is DENIED.   This matter is REMANDED to the

administrative hearing officer for further proceedings

consistent with the Court’s ruling.    An appropriate Order

accompanies this Memorandum Opinion.

SIGNED:   Emmet G. Sullivan
          United States District Court Judge
          September 21, 2011




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