                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


M.G.,

             Plaintiff,

        v.                                                      Civil Action No. 15-2239
                                                                       KBJ/DAR
DISTRICT OF COLUMBIA,

             Defendant.



                            REPORT AND RECOMMENDATION

        Plaintiff M.G. commenced this action for injunctive and declaratory relief pursuant to the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., seeking judicial

review of a final decision of the District of Columbia Office of the State Superintendent of

Education with respect to K.H., her minor child, a student who suffers from major depression, an

anxiety disorder, ADHD and related disabilities, and a math disorder. See Complaint for Injunctive

& Declaratory Relief (ECF No. 1) at 1–4.

        In the complaint, Plaintiff claims that (1) the District of Columbia Public Schools (“DCPS”)

denied K.H. a free appropriate public education (“FAPE”); (2) DCPS failed to propose and provide

an appropriate school placement for K.H.; and (3) DCPS failed to develop an appropriate

individualized education program (“IEP”) for K.H. Id. at 1. As relief, Plaintiff seeks a judgment

declaring that DCPS violated the IDEA; an order for DCPS to reimburse Plaintiff for all costs of

K.H.’s education from August 6, 2015, plus $355; an order for DCPS to modify K.H.’s IEP to

prescribe full-time specialized instruction in a general education environment; and an order for
M.G. v. District of Columbia                                                                      2


DCPS to pay reasonable attorney fees and costs incurred in bringing and pursuing the instant action.

Id.

        This case was referred to the undersigned United States Magistrate Judge for full case

management. See 12/30/2015 Minute Order. The parties filed dispositive motions in accordance

with the undersigned’s scheduling order. See 03/14/2016 Minute Order; Plaintiff’s Motion for

Summary Judgment (“Plaintiff’s Motion”) (ECF No. 7); Defendant’s Opposition to Plaintiff’s

Motion for Summary Judgment & Cross Motion for Summary Judgment (“Defendant’s Motion”)

(ECF No. 10). Upon consideration of the motions, the memoranda in support thereof and in

opposition thereto, and the entire administrative record, the undersigned will recommend that

Plaintiff’s motion be granted in part, and that Defendant’s motion be denied.


I.      BACKGROUND

        A.       Factual Background

        K.H. is a sixteen-year-old student who is currently enrolled at Emerson Preparatory School

(“Emerson”) and resides in the District of Columbia. Administrative Record (“AR”) (ECF No. 6)

at 40, 235. K.H. “has been diagnosed with anxiety, depression, emotional dysregulation, ADHD,

a math disability, an executive functioning disability, and possibly PTSD.” AR at 229. In October

2014, K.H. entered Stansbury Academy (“Stansbury”) and continued attending that school until

August 5, 2015. AR at 108, 190.

        On February 20, 2015, Plaintiff filed a Due Process Complaint against DCPS in the District

of Columbia Office of the State Superintendent of Education. AR at 40. The Hearing Officer

issued a Hearing Officer Determination (“HOD”) on April 29, 2015, concluding that DCPS

violated the IDEA by failing to conduct initial evaluations of K.H.’s eligibility for special

education services within the required 120-day period. AR at 50–51. The HOD required DCPS,
M.G. v. District of Columbia                                                                      3


within thirty days of the order, to convene an eligibility team to determine K.H.’s eligibility for

special education and related services, and if the team found K.H. to be eligible, convene an IEP

team to develop an IEP and educational placement for K.H. AR at 58. The HOD also required

DCPS to, upon receipt of documentation of payment by Plaintiff, reimburse Plaintiff the cost of

tuition and related expenses for K.H.’s attendance at Stansbury from February 19, 2015 until the

last day of the DCPS 2014–2015 regular school year, or the day on which DCPS offered K.H. a

suitable educational placement, whichever came first. Id. On May 20, 2015, DCPS convened an

eligibility meeting and found that K.H. was eligible for special education services. AR at 378.

        On August 4, 2015, DCPS sent Plaintiff a draft IEP. AR at 68. With no educational

placement made by the start of the 2015 school year, Plaintiff enrolled K.H. at Emerson, a non-

public, general education school. On September 8, 2015, Plaintiff filed another Due Process

Complaint, alleging that DCPS failed to propose or provide an appropriate placement, develop an

appropriate IEP, and fully reimburse Plaintiff the cost of K.H.’s enrollment at Stansbury. AR at

107–09. DCPS filed a response to the Complaint on September 11, 2015. AR at 162.


        B.       Summary of Hearing Officer Determination

        On November 22, 2015, the Hearing Officer issued a HOD, wherein he concluded that

Plaintiff was entitled only to reimbursement for K.H.’s tuition and expenses at Stansbury for the

summer of 2015—but not reimbursement for the tuition at Emerson for the 2015–2016 school year.

AR at 22. Specifically, the Hearing Officer made the following summary findings:

                 DCPS was not justified in recommending twenty five hours of
                 specialized instruction outside general education for the 2015-2016
                 school year. DCPS denied [K.H.] educational benefit by failing to
                 consider whether [K.H.] could benefit from at least some regular
                 education academic classes with appropriate supplemental aids and
                 services. DCPS accordingly denied [K.H.] a FAPE for the 2015-
                 2016 school year.
M.G. v. District of Columbia                                                                      4


Id. at 15.

                                                ***
                 DCPS denied [K.H.] educational benefit, and therefore a FAPE, by
                 failing to have an IEP or a placement for [K.H.] for the summer,
                 2015. [Moreover,] DCPS denied [K.H.] educational benefit, and
                 therefore a FAPE, by failing to have an IEP in effect by the start of
                 the 2015-2016 school year.

Id. at 17.

                                                ***
                 There is nothing in the record to suggest that [K.H.] receives the
                 behavioral support services that are mandated by [K.H.’s] IEP. . . .
                 [T]he record does not establish that these accommodations are
                 specially designed for [K.H.] at Emerson. . . . At the hearing,
                 [Plaintiff] did not present any “ten day notice” to DCPS alerting
                 them that she had decided to place [K.H.] at [Emerson]. . . . [The
                 Hearing Officer was] constrained by the applicable law and
                 regulations, which require a denial of [Plaintiff’s] claim for tuition
                 payment at [Emerson] for the 2015-2016 school year.

Id. at 20–21.


II.     CONTENTIONS OF THE PARTIES

        Plaintiff requests that Defendant: (1) reimburse Plaintiff for all costs of K.H.’s education

at Emerson for the 2015–2016 school year; (2) reimburse Plaintiff for the remaining $355 of K.H.’s

education at Stansbury; (3) place K.H. at Emerson; and (4) fund K.H.’s ongoing Emerson tuition.

See generally Plaintiff’s Motion. Plaintiff alleges that DCPS, in its IEP, inappropriately placed

K.H. in an environment completely apart from non-disabled students, despite the IDEA’s

requirement that children with disabilities be placed in the “least restrictive environment.”

Memorandum in Support of Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Mem.”) (ECF

No. 7) at 12. Plaintiff argues that DCPS did not offer any school placement for the 2015–2016

school year despite the IDEA’s requirement for an appropriate school placement. Id. Plaintiff

further avers that Emerson is appropriate for K.H. because Emerson meets “the specific academic
M.G. v. District of Columbia                                                                                    5


goals and objectives” in DCPS’s IEP. Id. at 14. Plaintiff argues that the Hearing Officer’s finding

that Plaintiff violated the notice requirement was in error, because the requirement is only

applicable in a case involving “removal of [a] child from [a] public school.” Id. at 20. Lastly,

Plaintiff contends that she is entitled to reimbursement of $355, and that this issue was overlooked

by the Hearing Officer. Id. at 22.

        Defendant counters that Plaintiff is not entitled to tuition reimbursement for Emerson

because K.H. does not receive any special education service at Emerson and because Plaintiff did

not provide notice of her intent to enroll K.H. in a private school at public expense. Memorandum

of Points and Authorities in Support of Defendant’s Opposition to Plaintiff’s Motion for Summary

Judgment, and Cross Motion for Summary Judgment (“Defendant’s Mem.”) (ECF No. 10) at 14,

19. Moreover, Defendant argues that Plaintiff acted unreasonably by thwarting DCPS’s attempt

to convene an IEP meeting and finalize the IEP, and by concealing her decision to place K.H. at

Emerson. Id. at 21. Lastly, Defendant avers that Plaintiff failed to provide any documentation

that shows that DCPS owes Plaintiff the $355 at issue. Id. at 21–22. 1


III.    STATUTORY FRAMEWORK

        The IDEA was enacted to “ensure that all children with disabilities have available to them

free appropriate public education 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); 34 C.F.R. § 300.300; see also Boose v. District of Columbia,

786 F.3d 1054, 1056 (D.C. Cir. 2015). This court has held that “DCPS has a fundamental




1
  Defendant has offered to reimburse the requested amount upon Plaintiff’s submission of documentation that shows
the outstanding $355 was related to the costs of K.H. attending Stansbury. Id. at 22.
M.G. v. District of Columbia                                                                        6


obligation to provide FAPE to a child with a disability residing in the District of Columbia.”

District of Columbia v. Abramson, 493 F. Supp. 2d 80, 84 (D.D.C. 2014).

        The IDEA requires “[a]t the beginning of each school year, each local educational

agency . . . have in effect, for each child with a disability in [its] jurisdiction, an individualized

education program[.]” 20 U.S.C. § 1414(d)(2)(A). The IDEA also requires that children with

disabilities be placed in the “least restrictive environment” so that they are “educated with children

who are not disabled, and special classes, separate schooling, or other removal of children with

disabilities from regular education environment occurs 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)(A). “If no suitable public school is

available, the school system must pay the costs of sending the child to an appropriate private

school.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (quoting

Jenkins v. Squillacote, 935 F.2d 303, 305 (D.C. Cir. 1991)).

        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 County Sch. Dist.

Four v. Carter, 510 U.S. 7, 15 (1993) (quoting School Committee of Town of Burlington, Mass. v.

Dep’t of Educ. of Mass., 471 U.S. 359, 372 (1985)). The IDEA “requires school districts to

reimburse parents for their private-school expenses if (1) school officials failed to offer the child

a [FAPE] in a public or private school; (2) the private-school placement chosen by the parents was

otherwise proper under the [IDEA]; and (3) the equities weigh in favor of reimbursement[.]”

Leggett v. District of Columbia, 793 F.3d 59, 66–67 (D.C. Cir. 2015) (citing Florence Cty. Sch.

Dist. Four v. Carter by and Through Carter, 510 U.S. 7, 15–16 (1993); 20 U.S.C. §

1412(a)(1)(C)(iii)(III)) (internal quotation marks omitted). A FAPE is unavailable to the child
M.G. v. District of Columbia                                                                        7


when the child’s IEP is inadequate or when the school district failed to develop an IEP for the

child. Id. at 63.


IV.     APPLICABLE STANDARD OF REVIEW

        The IDEA provides a statutory right to a civil action in state or federal court for “any party

aggrieved by the findings and decisions” of a hearing officer. 20 U.S.C. § 1415(i)(2)(A). Under

the IDEA, “the [reviewing] court (i) shall receive the records of the administrative proceedings;

(ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the

preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20

U.S.C. § 1415(i)(2)(C); see also 34 C.F.R. § 300.516(c). The IDEA gives the court “broad

discretion” to fashion an appropriate remedy to provide a FAPE. Florence Cnty. Sch. Dist. Four

v. Carter By & Through Carter, 510 U.S. 7, 16 (1993); Boose v. District of Columbia, 786 F.3d

1054, 1056 (D.C. Cir. 2015).

        In a civil action challenging a hearing officer’s decision under the IDEA, “[a] motion for

summary judgment operates as a motion for judgment based on the evidence comprising the record

and any additional evidence the court may receive.” D.R. v. Gov’t of D.C., 637 F. Supp. 2d 11, 16

(D.D.C. 2009). Where neither party submits additional evidence for the court’s review, “the

motion for summary judgment is simply the procedural vehicle for asking the judge to decide the

case on the basis of the administrative record.” Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th

Cir. 1997); accord Savoy v. District of Columbia, 844 F. Supp. 2d 23, 30 (D.D.C. 2012).

        The District of Columbia Circuit has explained that, “given the district court’s authority to

hear additional evidence . . . and base its decision on the preponderance of the evidence, 20 U.S.C.

§§ 1415(i)(2)(B)(ii), (iii), the IDEA plainly suggests less deference than is conventional in

administrative proceedings.” Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884,
M.G. v. District of Columbia                                                                     8


887 (D.C. Cir. 1989)) (internal quotation marks omitted). Courts must afford “due weight” to the

state administrative proceedings and avoid “substitut[ing] their own notions of sound educational

policy for those of the school authorities they review.” Bd. of Educ. Hendrick Hudson Cent. Sch.

Distr. v. Rowley, 458 U.S. 176, 206 (1982). However, “a hearing decision without reasoned and

specific findings deserves little deference.” Reid, 401 F.3d at 521 (quoting Kerkam, 931 F.2d at

87) (internal quotation marks omitted); see also M.O. v. District of Columbia, 20 F. Supp. 3d 31,

40 (D.D.C. 2013) (“[W]hile a certain amount of deference should be accorded to the knowledge

and expertise of the hearing officer, courts will accord less deference if the hearing officer’s

determination lacks reasoned and specific findings.”).

        Moreover, “[a] court is obligated by the IDEA to ensure that [the] relief set forth in the

administrative award was appropriate” and the court “may not simply rely on the Hearing Officer’s

exercise of discretion.” Turner v. District of Columbia, 952 F. Supp. 2d 31, 36 (D.D.C. 2013)

(internal quotation marks and citations omitted). The party challenging the hearing officer’s

decision “take[s] on the burden of persuading the court that the hearing officer was wrong.” Id. at

35 (internal quotation marks omitted); accord Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62

(2005) (finding that the burden of proof in an administrative hearing concerning an IEP is upon

the party seeking relief); see also D.C. Mun. Regs. tit. 5-E, § 3030.3.


V.      DISCUSSION

        A.       K.H.’s Placement in Emerson was Appropriate Because the Placement was
                 Reasonably Calculated to Enable K.H. to Receive Educational Benefits

        The Hearing Officer found that Emerson was not an appropriate placement for K.H.

because it did not provide K.H. with many of the elements of special education services identified

in K.H.’s IEP. AR at 20. The Hearing Officer found that K.H. “has attended no special education

classes at [Emerson], and has received no instruction from any special education teacher at
M.G. v. District of Columbia                                                                       9


[Emerson].” AR at 20. The Hearing Officer also found that K.H. does not receive counseling,

behavioral support services, or “redirection, verbal reinforcements, repetition of directions, and

verbal prompts and reminders” as outlined in the IEP. AR at 20.

        The IDEA ensures all children with disabilities receive a FAPE by providing special

education and related services. 20 U.S.C. § 1400(d)(1)(A). This Circuit has noted that “[s]pecial

education, in turn, means, simply, instruction specially designed . . . to meet the unique needs of a

child with a disability.” Leggett, 793 F.3d at 63 (quoting 20 U.S.C. § 1401(29)) (internal quotation

marks omitted). While unilateral private school placements are allowable in the absence of an

appropriate IEP, such placements must be “proper under the Act”—meaning that “the education

provided by the private school is reasonably calculated to enable the child to receive educational

benefits.” Id. at 70 (citing Carter By and Through Carter v. Florence County School District Four,

950 F.2d 156, 163 (4th Cir. 1991), aff’d, 510 U.S. 7 (1993)). If a child shows improvement of

performance, the placement can well be considered “primarily oriented toward enabling [the child]

to obtain an education[.]” Id. at 72; see also Roark ex rel. Roark v. Dist. of Columbia, 460 F. Supp.

2d 32, 44 (D.D.C. 2006) (“Academic success is an important factor ‘in determining whether an

IEP is reasonably calculated to provide education benefits.’”).

        In this case, the Hearing Officer found that DCPS denied K.H. a FAPE by failing to propose

an appropriate IEP, and Defendant does not contest the Hearing Officer’s finding that there was

no appropriate IEP in effect for K.H. by the start of the 2015–2016 school year. AR at 15;

Defendant’s Mem. at 15. Defendant does contest, however, Plaintiff’s claim that Emerson is an

appropriate placement for K.H. by arguing that Emerson does not provide the services required by

K.H.’s IEP, such as “25 hours per week of specialized instruction outside the general education

setting, . . . redirection, behavioral reinforcements, . . . and other behavioral supports[.]”
M.G. v. District of Columbia                                                                                       10


Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Cross Motion for Summary Judgment

(“Defendant’s Reply”) (ECF No. 14) at 3 (citing Defendant’s Mem. at 15). In further support,

Defendant cites Berger and Schoenbach, two cases where courts held that the private school

placements selected by parents were inappropriate because they did not provide the special

education services required by the students’ IEPs. See Berger v. Medina City School Dist., 348

F.3d 513, 522–23 (6th Cir. 2003); Schoenbach v. District of Columbia, No. 05-1591, 2006 WL

1663426, at *22–23 (D.C.C. June 12, 2006). These two cases are distinguished from the instant

case, however, because both involved a student with a valid IEP who was removed from a current

placement in favor of a private school which did not meet any of the student’s needs as identified

on the IEP. 2 In Berger, the court found that the unilateral private placement was not proper under

the IDEA because the private school did not provide any special education services in which the

public school was deficient. See 348 F.3d at 523. Likewise, in Schoenbach, the public school was

capable of providing the special services identified in the IEP and the private school did not provide

any special service in which the public school was deficient. See 2006 WL 1663426 at *23.

Because these two cases involve IEPs that the courts found provided FAPEs for the students, the

plaintiffs in both cases would have failed to satisfy the first prong of Leggett’s three-part test for

reimbursement. See Leggett, 793 F.3d at 66–67. In the present case, however, Defendant failed

to provide a FAPE for K.H. and therefore Plaintiff has satisfied the first prong of Leggett for

reimbursement of a unilateral private school placement.

         The issue next becomes whether Emerson was an otherwise proper placement for K.H.

under the IDEA. In the HOD, the Hearing Officer found that Emerson was not proper because it



2
 As discussed in greater detail in Part V.B below, there is an additional contrast between the instant case and Berger
and Schoenbach—namely that K.H. did not have a valid placement at the time Plaintiff enrolled K.H. at Emerson.
AR at 16.
M.G. v. District of Columbia                                                                    11


did not provide any special education. AR at 20. In Leggett, because there was no appropriate

IEP for the student by the start of the school year, the court assessed the appropriateness of the

private school placement based on the student’s unique needs identified by the student’s

psychologist. See Leggett, 793 F.3d at 72. Here, too, an appropriate IEP was not available because,

according to the HOD, it was prepared without an appropriate IEP meeting and was sent to Plaintiff

three days prior to the start of the school year. AR at 15–17. While the August 2015 IEP included

a placement—i.e. 25 hours per week of specialized instruction outside the general education

setting—a location of services was not identified. See Defendant’s Mem. at 20; AR at 97–98.

Indeed, the Hearing Officer noted that no location was provided, and that “DCPS did not even

send a preliminary information packet to the proposed placement . . . until after the school year

had started.” AR at 16.

        K.H.’s unique needs include “a small, quiet, supportive environment that can

simultaneously work to remediate [K.H.’s] weakness in math and allow [K.H.] access to an

accelerated, college preparatory program in other subjects where [K.H.] excels.” AR at 84. K.H.

needed to enhance both anxiety and peer interaction skills. AR at 94, 229, 241. Plaintiff also

identified full-time mainstreaming to be necessary for K.H. through consultation with K.H.’s

therapist. AR at 241–42. With respect to mainstreaming in the general education setting, the

Hearing Officer found that the IEP lacked any discussion of possible supports for K.H. in a general

education setting and required an inappropriate amount of instruction outside the general education

setting. AR at 14.

        The Hearing Officer cited Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006) as a

useful comparison, when discussing whether Emerson provided special education services. AR at

20. In so doing, the Hearing Officer attempted to distinguish Frank G. from the instant case by
M.G. v. District of Columbia                                                                       12


pointing out that there was a clear record of the “specially designed” accommodations for the

student in Frank G, which met the student’s unique needs. Id. The Hearing Officer held, however,

that accommodations such as small class sizes and a quiet environment offered by Emerson benefit

all students. AR at 20. These benefits are not “specially designed to meet the unique needs of a

child with a disability,” and therefore do not qualify as special education. AR at 20. In Frank G.,

the court recognized the small class size as “one element of the special education services[,]” while

acknowledging that it alone might not render the placement appropriate. See Frank G., 459 F.3d

at 365. While an accommodation such as small class size could be available to all students, the

court reasoned that it could address the deficiencies in other schools that lacked such an

accommodation for a child with a disability. See id. The undersigned notes that courts in this

District have previously recognized small class size as a valid accommodation for a FAPE. See

e.g., District of Columbia v. Bryant-James, 675 F. Supp. 2d 115, 120 (D.D.C. 2009) (finding the

IEP to be inadequate because it did not consider the requirement of small class size that the doctor

addressed as the child’s chief concern); Gellert, et al. v. District of Columbia Public Schls., 435 F.

Supp. 2d 18, 25 (D.D.C. 2006) (finding that the private school was an appropriate placement

because the small class size and a quiet environment enabled the student to receive educational

benefits). So long as these modifications or accommodations are “reasonably calculated to enable

the child to receive educational benefit,” the undersigned is compelled to find that they are valid

forms of special education under the IDEA.

        Plaintiff argues that the accommodations at Emerson were reasonably calculated to enable

K.H. to receive educational benefits. Plaintiff’s Mem. at 13–15. Plaintiff points to the fact that

K.H. earned good grades and made friends at Emerson, despite a history of social and emotional

issues. Id. at 13–14. Additionally, Plaintiff notes that Emerson meets many of the needs identified
M.G. v. District of Columbia                                                                                     13


by the IEP, including a small and quiet environment, and an accelerated college preparatory

program for K.H.’s stronger subject areas. Id. at 14. Defendant does not dispute the fact that K.H.

appeared to benefit from enrollment at Emerson, but rather contends that Emerson “is not a special

education school and cannot provide K.H. with 25 hours of special education instruction outside

the general education classroom—the services required by [K.H.’s] August 2015 IEP.” 3

Defendant’s Mem. at 16–17. Additionally, Defendant argues that Emerson failed to provide the

“individual support for [K.H.’s] weaknesses and slow graph motor speed or provide[] redirection,

behavioral reinforcements, repetition of directions, verbal prompts and reminders and other

behavioral supports—items that were deemed necessary for K.H.’s educational development and

which were included on [K.H.’s] IEP.” Defendant’s Reply at 3 (internal quotation marks omitted).

        Even if Defendant is correct that Emerson failed to provide these supports, the undersigned

finds that Emerson was still reasonably calculated to enable K.H. to receive educational benefits.

As outlined above, Emerson did provide some supports that benefitted K.H. This Circuit has held

that when evaluating a unilateral private placement for appropriateness, the court is to employ the

same standard used in evaluating the education offered by a public school district. Leggett, 793

F.3d at 70. Such a standard requires that a private school “need not guarantee the best possible

education or even a ‘potential-maximizing’ one.” Id. (citing Rowley, 458 U.S. at 197 n.21). All

that is required is that the private school be “reasonably calculated to enable the child to receive

educational benefits.” Id. Defendant’s argument that Emerson is inappropriate because it does

not address all of K.H.’s needs seeks to impose a higher standard than that articulated in Leggett.




3
 While it may be true that Emerson does not provide the identified services “outside the general education
classroom” as noted by Defendant, the undersigned recognizes that this was one of the express provisions which
caused the Hearing Officer to hold that the IEP was inappropriate for K.H. AR at 15.
M.G. v. District of Columbia                                                                                        14


         Finally, the undersigned finds that, as in Leggett, there was no other appropriate option

available to Plaintiff when she enrolled K.H. at Emerson. An appropriate IEP was not complete

when the 2015–2016 school year started and no arguable alternative school placement was

provided until well after the school year had already begun. See AR at 16–17. 4 Plaintiff was left

with Emerson as “the only school reasonably calculated to offer educational benefit” to K.H. See

Leggett, 793 F.3d at 74. For all these reasons, the undersigned finds that Emerson was “oriented

toward enabling [K.H.] to obtain an education,” and therefore a proper placement under the IDEA.

See Leggett, 793 F.3d at 72.


         B.       The Equities Favor Reimbursement

         When a child’s parent or guardian selects a unilateral private school placement and the

court finds that the school was “reasonably calculated to enable the child to receive educational

benefits,” the court can still deny reimbursement if equitable considerations so require. Leggett,

793 F.3d at 70. The Hearing Officer found that the equities favored a denial of reimbursement

because Plaintiff did not comply with a “ten day notice” requirement under the IDEA. AR at 21.

According to Leggett, reimbursement may be denied or reduced if the equities weigh against

reimbursement—i.e. “the parents fail to notify school officials of their intent to withdraw the child,

[] deny them a chance to evaluate the student, . . . [or] otherwise act unreasonably[.]” Leggett, 793

F.3d at 63, 67 (quoting 20 U.S.C. § 1412(a)(10)(C)(iii)) (internal quotation marks omitted); see,

e.g., Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (“[C]ourts have



4
 The Hearing Officer noted that “DCPS did not even send a preliminary ‘information packet’ to the proposed
placement, [Frost], until after the school year had started. It was only on September 9, 2015 that [Frost] received
[K.H.]’s records from DCPS. Thereafter, [Frost] started the process of trying to interview Petitioner and [K.H.].
DCPS presents no authority to suggest that it is permissible to be so later with an educational placement. . . . Here,
[K.H.] would have missed several weeks of school were [K.H.] to have gone to [Frost]. I find that, at least for this
Student, missing the first few weeks of school was a substantive violation that denied [K.H.] a FAPE.” AR at 16–
17.
M.G. v. District of Columbia                                                                     15


recognized that in setting the award, equity may sometimes require consideration of the parties’

conduct[.]”); Eley v. District of Columbia, No. 11–309, 2012 WL 3656471, at *10 (D.D.C. Aug.

24, 2012) (“A court may also reduce or deny tuition reimbursement upon a judicial finding that

the actions taken by the parents were unreasonable.”); M.C. ex rel. Mrs. C. v. Voluntown Bd. of

Educ., 226 F.3d 60, 68 (2d Cir. 2000) (denying reimbursement because parents failed to notify

public school of private counseling until well after counseling had concluded); Carmel Central

School District v. V.P., 373 F. Supp. 2d 402, 409 (S.D.N.Y. 2005) (denying reimbursement

because parents provided inaccurate information to the school district for many years and actively

concealed the child’s disability).

        This limitation on reimbursement was “created to give the school system an opportunity,

before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and

determine whether a FAPE can be provided by the public schools.” Fisher v. Friendship Pub.

Charter Sch., No. 10-cv-886, 2012 WL 11916732, at *7 (D.D.C. Jan. 26, 2012) (quoting

Schoenbach v. District of Columbia, 309 F. Supp. 2d 71, 84 (D.D.C. 2004) (internal quotation

marks omitted)). When a school district fails to show any substantive harm caused by a parent’s

violation of the notice provision, a court may not deny reimbursement on the basis of notice alone.

Schoenbach, 309 F. Supp. 2d at 85 (citing Adam J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811–

12 (5th Cir. 2003)) (denying the request for tuition reimbursement because the parents’ failure to

object to the IEP team’s public school placement substantively contributed to the IEP’s

inappropriateness).

        Plaintiff here argues that “the Hearing Officer incorrectly applied the ten-day notice

provision in this case,” because the requirement only applies a removal of a child from a public

school. Plaintiff’s Mem. at 19–20; see also 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa). In support of
M.G. v. District of Columbia                                                                     16


this argument, Plaintiff cites several cases, including Fisher, where the ten-day notice was not

required because the student could not be removed from school as he had already been expelled,

see 2012 WL 11916732, at *7, and Eley, where the plaintiff did not violate the notice provision

because “there was no proposed placement that plaintiff could reject,” see Eley v. District of

Columbia, No. 11–309, 2012 WL 3656471, at *9 (D.D.C. Aug. 24, 2012). Defendant argues that

the notice requirement applies here because the IEP was finalized before Plaintiff placed K.H. at

Emerson and Plaintiff failed to timely notify Defendant. Defendant’s Mem. at 20.

        The undersigned finds that the Hearing Officer inappropriately applied the ten-day notice

requirement in this case. The IDEA expressly requires notice for “removal . . . from . . . school”

or “reject[ion] [of] the placement.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa) (emphasis added). As

in Eley, Plaintiff was under no obligation to provide notice to DCPS because there existed no

school placement from which K.H. was to be removed. See 2012 WL 3656471, at *9 (finding the

notice provision inapplicable because “DCPS had not identified a particular school placement, or

a location at which R.E.’s IEP would be implemented.”). Defendant does not contest the Hearing

Officer’s findings, and the Hearing Officer found that DCPS had not provided K.H. with a

placement prior to the start of the 2015–2016 school year. AR at 16 (“While there was an IEP

written prior [to] the start of the school year, there was no placement offered to the parent by the

first day, which was August 26, 2015.”). Further, by the time Plaintiff enrolled K.H. at Emerson,

Defendant was already on notice of K.H.’s need for an IEP and school placement, and the record

shows both parties attempted to assemble an IEP team, evaluate the child, and devise an IEP for

K.H. AR at 27–74. In fact, the record indicates that at a meeting in May of 2015 DCPS was aware

that K.H. would be leaving Stansbury and would be in need of a new placement for the 2015–2016
M.G. v. District of Columbia                                                                                           17


school year. 5 The undersigned finds that, “even if Plaintiff was required to formally contest a non-

existent placement, plaintiff provided DCPS with the requisite notice” through discussion with

Defendant. See Eley, 2012 WL 3656471, at *9.

          Defendant further argues against reimbursement by citing “Plaintiff’s unreasonable

behavior when DCPS was trying to schedule the IEP meeting.” Defendant’s Mem. at 20. The

undersigned finds that Plaintiff did not otherwise act unreasonably in the course of its interaction

with DCPS. While Defendant contends that Plaintiff “stonewalled” DCPS’s attempts to convene

an IEP meeting, the record illustrates that the failure to convene an IEP meeting was attributable

to both parties. See AR at 60–74. While DCPS attempted to convene a meeting with Plaintiff by

providing numerous dates, it is also true that DCPS was unable to select among the dates Plaintiff

proposed for a meeting. The failure of scheduling was not due a unilateral “stonewalling” by

Plaintiff, but was caused in part by the unavailability of DCPS, Plaintiff, the therapist, or school

personnel.

         Upon careful review of the record, the undersigned finds no basis to deny or reduce

reimbursement for tuition and related expenses at Emerson.


         C.       Insufficient Evidence Regarding $355 Underpayment Requires Remand

         Plaintiff argues that DCPS owes Plaintiff $355 for expenses at Stansbury for June, 2015.

Plaintiff’s Mem. at 22–23. It is uncontested that DCPS has reimbursed $11,335.20 for the tuition

and expenses at Stansbury for June, 2015, and Defendant argues that Plaintiff has produced no

documentation to support further reimbursement in the amount of $355. AR at 121; Defendant’s


5
  “Q: Right. And [Plaintiff] informed you at the eligibility meeting and just for the hearing officer’s benefit this – I
believe you testified before that you thought it was it was [sic] May but were not sure exactly when in May?
A: Yes.
Q: And at that meeting [Plaintiff] informed you that the expectation was that [K.H.] would be leaving Stansbury in
time for the new school year, correct? In time for the ‘15-’16 school year?
A: She did.” AR at 431.
M.G. v. District of Columbia                                                                      18


Mem. at 21–22. It is uncontested that the Hearing Officer did not make a specific finding regarding

the Plaintiff’s allegation of underpayment. Where, as here, there is no pertinent finding in the

HOD and given that both parties filed motions for summary judgment without request for

consideration of additional evidence, the district court may determine that the appropriate relief is

remand to the Hearing Officer. Reid, 401 F.3d at 526.

          Submission of invoices by parents for reimbursement for private placement and payment

of such invoices by the District of Columbia are governed by regulations set forth in the District

of Columbia Municipal Regulations Title 5-A, Chapter 29. See District of Columbia v. Masucci,

13 F. Supp. 3d 33, 45 (D.C. Cir. 2014) (ordering parents to submit invoices for tuition and related

expenses); Blackman v. District of Columbia, No. 97-1629, 2013 WL 9600334, at *1 (Jan. 9, 2013)

(ordering parents to submit invoices for tuition and transportation to receive payment from school).

The Code of D.C. Municipal Regulations requires “[parents] seeking reimbursement for authorized

services . . . to submit . . . invoices for special education services,” or “receipt of payment

established by mutual written agreement of parties.” D.C. Mun. Regs. tit. 5-A, § 2901.1, 2902.2

(2012).

          Plaintiff requests that the court award $355 allegedly omitted from the reimbursement for

K.H.’s expenses at Stansbury for June, 2015. Plaintiff’s Mem. at 22. Plaintiff argues that there is

no dispute that Plaintiff incurred the $355 expense as part of the reimbursable costs of K.H.’s

education at Stansbury. Id. at 23. The record, however, indicates otherwise. Plaintiff, in her Due

Process Complaint, argued that DCPS reimbursed only “a small fraction of the total cost” at

Stansbury and requested reimbursement of “all costs” related to Stansbury. AR at 107, 109.

Accordingly, the Hearing Officer granted “reimbursement for expenses at [Stansbury.]” AR at 18.

The HOD, however, did not discuss the $355 apart from Plaintiff’s full entitlement to
M.G. v. District of Columbia                                                                                          19


reimbursement for the expenses at Stansbury. Moreover, while acknowledging DCPS’s duty to

reimburse the tuition and related expenses at Stansbury, Defendant has been consistently disputing

Plaintiff’s contention concerning the $355 in this proceeding. See AR at 26–194; Defendant’s

Mem. at 22–23; Defendant’s Reply at 7–9.

         The record does not contain any invoice or comparable evidence to demonstrate Plaintiff’s

entitlement to an additional $355. See Plaintiff’s Mem. at 22–23; Plaintiff’s Opposition to

Defendant’s Cross-Motion for Summary Judgment and Reply to Defendant’s Opposition to

Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Opp’n”) (ECF No. 12) at 13–15. Because

neither Plaintiff nor Defendant have produced copies of the invoices originally submitted by

Plaintiff for June 2015 services, the record on this matter is incomplete. Therefore, because there

is insufficient evidence to make a finding regarding Plaintiff’s entitlement to $355, the undersigned

will recommend that the court remand this matter to the Hearing Officer for a specific factual

determination of whether or not Plaintiff is entitled to $355 based on an alleged underpayment. 6


VI.      RECOMMENDATION

         For all of the foregoing reasons, the undersigned finds that Plaintiff has met her burden of

demonstrating, by a preponderance of evidence, that the record as a whole does not support the

HOD. Accordingly, the undersigned finds that Plaintiff is entitled to the tuition and related

expenses at Emerson for the 2015–2016 school year. The undersigned also finds that there is

insufficient evidence to make a finding regarding the Plaintiff claim to $355 of alleged

underpayment.         In accordance with the applicable standard of review, the undersigned

recommends that the HOD be reversed with regard to the tuition and costs associated with K.H.’s


6
  The undersigned further suggests that, due to the relatively small dollar amount of this dispute, the parties would
be well advised to attempt to resolve this matter without the additional costs associated with re-litigating the issue at
the Hearing Officer level.
M.G. v. District of Columbia                                                                   20


education at Emerson, and that the matter be remanded to the Hearing Officer for additional

findings with regard to the alleged $355 underpayment, should the parties remain unable to resolve

that issue.

        It is therefore, this 14th day of February, 2017,

        RECOMMENDED that Plaintiff’s Motion for Summary Judgment (ECF No. 7), be

GRANTED IN PART; it is

        FURTHER RECOMMENDED that this matter be remanded to the Hearing Officer for

findings consistent with this report and recommendation; and it is

        FURTHER RECOMMENDED that Defendant’s Cross Motion for Summary Judgment

(ECF No. 10), be DENIED.

                                                                          /s/
                                                            DEBORAH A. ROBINSON
                                                            United States Magistrate Judge


      Within fourteen days, either party may file written objections to this report and
recommendation. The objections shall specifically identify the portions of the findings and
recommendations to which objection is made and the basis of each such objection. In the
absence of timely objections, further review of issues addressed herein may be deemed
waived.
