Pavelko v. District of Columbia

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CLINTON PAVELKO, et al., ) ) ) Plaintiffs, ) ) v. ) Civil Case No. 16-1765 (RJL/DAR) ) DISTRICT OF COLUMBIA, ) ) ) FILED Defendant. ) FEB 1 3 2018 ”' W_ clerk, u.s. District & Bankruptcy MEMORA UM OPINI()N Courts forthe Districtof Columb|a (Februar';, 2018) [Dkt. # 15, 17] Plaintiffs Clinton Pavelko and Jean Holman (“plaintiffs”), on behalf of their minor child H.P., have filed this suit under the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs seek judicial review of certain conclusions contained Within a final administrative decision of the D.C. Office of the State Superintendent of Education. See generally Compl. [Dkt. # l]. Specifically, plaintiffs allege that the final administrative decision by the Independent Hearing Officer (“IHO”) failed to recognize numerous IDEA violations that the District of Columbia (“defendant” or “the District”) committed in the course of evaluating and recommending the appropriate special educational services and placement for H.P. On September 13, 2016, the case vvas referred to Magistrate Judge Deborah A. Robinson for full case management See 9/13/2016 Minute Entry. Before Magistrate Judge Robinson, the parties filed cross-motions for summary judgment. See Pls.’ Mot. Summ. J. |:Dkt. # l5]; D.C.’s Opp’n to Pls.’ l\/lot. Summ. J. & Cross-l\/lot. Summ. J. [Dl<t. # l7]. Currently pending before this Court is Magistrate Judge Robinson’s December 18, 2017 Report and Recommendation (“R&R”) for the above-captioned case. See generally R&R [Dl<t. # 23]. ln that R&R, Magistrate Judge Robinson recommends that the Court deny plaintiffs’ motion for summary judgment and grant defendant’s motion for summary judgment Pursuant to Local Civil Rule 72.3(b), the parties were allowed 14 days to file objections to the recommendations made by Magistrate Judge Robinson. Not surprisingly, plaintiffs objected to Magistrate Judge Robinson’s R&R. See Pls.’ ()bjection to R&R (_“Pls.’ ()bj.”) [Dl<t. # 24]. When a party objects to a magistrate judge’s recommended disposition_, the Court reviews cle novo those portions of the recommendation to which an objection is made. Fed. R. Civ. P. 72(b)(3); LCvR 72.3(c). 'l`he Court may “accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate judge.” LCvR 72.3(c). Upon consideration of Magistrate Judgc Robinson’s R&R, the parties’ briefing, and the applicable case law and legal standards, the Court hereby ADOPTS Magistrate Judge Robinson’s recommendations, DENIES plaintiffs’ motion for summary judgment, and GRANTS defendant’s motion for summary judgment for the reasons contained with the R&R and elaborated upon bclow. BACKGROUND 'l`he factual background of this case is ably summarized by Magistrate Judge Robinson in her rcport, see R&R at 3-5, and l need not re-tread that ground here. Suffice [\.) it to say that, from summer 2014 through early spring of 2015, plaintil`fs’ ehild, l~l.P., was repeatedly evaluated by D.C. Public Schools (“DCPS”) and non-DCPS providers to determine H.P.’s eligibility for special education and related Services. See A.R. at 8-ll [:Dkt. # ll-l]. Ultimately, the evaluating specialists diagnosed H.P. as having Attention Deficit/l*lyperactivity Disorder (“ADHD”) and as meeting the criteria for an Autism Spectrum Disordcr (“ASD”) disability. See id. One evaluator concluded that H.P. would benefit from “placcment in a therapeutic school with a low Student-to-teachcr ratio” and from receipt of “/\B/\ services to help foster his social, emotional and communication skills.” [cl_ at 9. Another recommended that H.P. repeat prcschool in a “program designed for children with an ASD diagnosis, to include a language enriched program” that was “highly structured” and would provide H.P. education in both “small group and individualized” settings Id. at 9-10 . Based on that information, a DCPS special education eligibility team determined that H.P. qualified for special education under the lDEA_a finding to which plaintiff Holman consented Ia’. at l0. On April 21, 2015, DCPS convened an lndividualized Education Program (“IEP”) meeting in order to formulate and propose an lEP for H.P. lcl. Unbeknownst to those DCPS officials, howevcr` plaintiffs had enrolled H.P. at the Auburn Schoolia private special education day school_the day before. ]a’. At the IEP mccting, l)CPS proposed an IEP for H.P. that contained various goals and specifications for specialized support and instruction, including: twenty hours per weel< of specialized instruction outside general education, which would occur in the Community and Education Support (“CES”) classroom; four hours per week of specialized instruction in general education, during which l~l.P. would be accompanied by a paraprofessional; and two hours per month, each, of Speech-Language Pathology, Occupational Therapy, and Behavioral Support Services outside of general education Ia’. at 10-11. The DCPS team proposed a CES classroom at Takoma Education Campus (“Takoma”) as the location of the services. Icl. at 11. /\bout one week after the April 21, 2015 IEP and placement proposal, plaintiff llolman and ll,P.’s grandmother visited the proposed CES classroom at Takoma. Icl. /\ftcr observing the classroom, they were not satisfied that the placement was appropriate for H.P. See jol. (recounting plaintiffs’ concerns that the CES program was “too easy” for H.P. and that other students in the program were nonverbal). Although DCPS responded to the concerns raised by plaintiffs and l~l.P.’s grandmother, “no agreement was reached” for H.P. to enroll at Takoma. [a’. at 12. lnstead, plaintiffs chose to keep H.P. enrolled at the Auburn School, where he had been progressing well. ld. at 11-12. Ultimately, after additional evaluations of H.P., a second visit to the CES classroom at 'l`akoma, and more back-and-forth between DCPS and plaintiffs, an updated ll'il) was formulated for H.P. in late January 2016. See ld. at 12-14. Plaintiffs, however, continued to object to DCPS’s revised proposal for H.P. lcl. at 15. They filed a due process complaint against DCPS in the D.C. Office of the State Superintendent of Education arguing, among other things, that H.P. had been denied his right to a free and appropriate public education (“FAPE”) under the lDEA and that the April 2015 and January 2016 proposed lEPs were unsatisfactory Icl. at 4, 6-7. ln his 32-page determination, the lHO assigned to l~l.P.’s case agreed with plaintiffs that various shortcomings in the ilanuary 2016 IEP process violated the ll)EA. See l`a’. at 29-32. 'fo remedy those violations, the ll'l() ordered DCPS to reimburse plaintiffs for the costs associated with l*l.l).’s attendance at the Auburn School from January 29, 2016 through the end of the 2015-2016 school year. Icl. at 34. The IHO rejected plaintiffs’ claims regarding the April 2015 IEP, however, as well as their claim that H.P. had been denied a FAPE from April 2015 through late-January 2016. Ia’. at 16-29. Those latter conclusions were upheld by Magistrate Judge Robinson in her R&R, to which plaintiffs now object. ANALYSIS fn their suit, plaintiffs seek judicial review of the lH()’s administrative decision. fn such a case` as Magistrate Judge Robinson noted, plaintiffs have the burden of proving that the “hcaring officer was wrong."’ Reicl ex rel. Rel`d v. District ofCOluml)l`a, 401 F.3d 516, 521 (:D.C. Cir. 2005). Although the lDEA requires reviewing courts to afford “less deference than is conventional in administrative proceedings,” icl. (internal quotation mark omitted), courts are not to “substitute their own notions of sound educational policy for those of the school authorities which they review,” Ba’. ofEcluc. ofHerzclrlck Hudson Cent. Sch. Disl. v. Rowley, 458 U.S. 176, 206 (1982). With that admonition in mind, "‘|rc|ourts sitting on an lDE/\ appeal” must “give due weight to the administrative proceedings and afford some deference to the expertise of the hearing officer and school officials responsible for the child’s education.” Gill v. District 0fC0lum/)la,.75l F. Supp. 2d 104, 108-09 (l).l).C. 2010) (internal quotation marks omitted). l*lere, plaintiffs take issue with three primary conclusions of the R&R. l\/findful of the standard of review cited above, l address_and reject_each ofplaintiffs’ contentions l"irst, plaintiffs argue that Magistrate Judge Robinson erred in affirming the lHO’s determination that H.P.’s parents were granted meaningful participation in the April 2015 educational placement decision See Pls.’ Obj. 5-6. l disagree Plaintiff"s are certainly correct that various procedural safeguards of the IDEA require school officials to notify and work with parents when crafting or modifying an educational placement See, e.g., //()n/'g v. D()e` 484 l,l.S. 305, 311-12 (1988); L()_fl()n v. Dl'slrfcl Q/`C()lu/nbla, 7 F. Supp. 3d l 17, 123 n.6 (l).l).C. 2()13). They are incorrect, however, that the IHO erred in determining that DCPS met those procedural requirements The evidence before the IHO was that plaintiffs and H.P.’s grandmother: 1) received a DCPS-funded, independent evaluation ofH.P. upon objecting to the original DCPS evaluation; 2) were present at and participated in the April 21, 2015 IEP meeting; 3) were granted access to H.P.’s prospective classroom and teachers at Takoma; and 4) received responses from DCPS about their concerns with the proposed lEP and CES classroom. See /-\.R. at 8-12, 19-20; see also R&R 11. Given all that, plaintiffs have not met their burden to show that the ll-l() was wrong to conclude that plaintiffs were “afforded meaningful participation in the development of the April 21, 2015 lEP and educational placement.” A.R. at 19. ln short, plaintiffs’ disagreement with the ()ulpulv of the lEP process does not mean that they were denied the chance to provide meaningful input into that process. Cf Hawlcl`ns v. District ofColuml)iu, 692 F. Supp. 2d 81, 84 (D.D.C. 2010) (parents’ right to participate in “the formation of their child’s lEP does not constitute a veto power over the IEP team’s decisions (internal quotation marks omitted)). l\lext, plaintiffs object to the R&R’s approval of the lll()’s determination that the April 21, 2015 ll'il) met the substantive requirements of the lf)EA. See Pls.’ ()bj. 11-14. /\s l\/lagistratc fudge Robinson correctly explains, the IEP is the “centerpiece of the statutc’s education delivery system for disabled children”_and thus of the District’s obligation to provide a free appropriate public education for qualifying disabled children. En€lrew F. ex rel. Joseph F. v. Douglas Cly. Sc/i. Dist. RE-l, 137 S. Ct. 988 , 994 (2017) (internal quotation marks omitted). By statute, the lEP must include an assessment of the student’s current levels of academic and functional performance; a description ofhow the child’s disability affects the ehild’s involvement and progress in the educational curriculum; measurable annual goals for the child’s academic and functional progress; and an outline of the specially designed instruction and support services necessary to allow the child to achieve the annual goals. See, e.g., la’. (quoting 20 U.S.C. § 1414 (d)(1)(A)(i)(l)-(IV)). While the lDEA requires an individualized assessment of each child’s “unique needs,” it also mandates “that children with disabilities receive education in the regular classroom ‘whenever possible.”’ ]a’. at 994, 999 (quoting Rowley, 458 U.S. at 181, 202 ). Taken together, to satisfy the lDEA the components of an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the ehild"s circumstances.” Ia’. at 999. The central question, in other words, “is whether the llEP is reasonable, not whether the court regards it as ideal.” Ia’. Contrary to plaintiffs’ arguments, the IHO properly concluded that the April 21, 2015 ll§il) satisfied the ll)liA’s standards 'l`he IHO examined the testimony and evidence regarding the appropriateness of each type of service required under the IEP. See A.R. at 21-22 (discussing requirement of occupational therapy services); la’. at 22 (discussing requirement of speech-language pathology services); z'al. at 23 (discussing requirement of behavioral support services). As to each service, the IHO chose to credit the testimony of DCPS’s experts or the recommendations of the independent evaluators, all of which indicated that the amount and nature of the services contained in the IEP were "appropriatc” or “nccded"` to meet ll.P.’s academic and functional goals lal. at 21, 23. Plaintiffs have given this Court no reason to second-guess that decision of the IHO or, for that mattcr, the relevant school officials and examiners Cf. Rowley, 458 U.S. at 206 . The ll*l() also reasonably rejected plaintiffs’ request for more integration o'fH.P.’s support services into the classroom program. The lHO pointed out that H.P.’s receipt of Such integrated services at the Auburn School, without more, did not demonstrate that the lEP’s provision of the services on a “‘pull-out’ basis” was inappropriate under the relevant standards See A.R. at 23 (citing 34 C.l*`.R. § 300.34(a)). Similarly, the IHO was correct to reject the argument that the lEP wrongly failed to provide for a dedicated aide or for the use of /\pplied Behavioral Analysis methodologies As the IHO noted, see icl. at 24-25, at the time of the April 2015 IEP, it had not yet been established that H.P. needed those services; thus, the lEP’s failure to include them does not render the lEP inadequate See S.S. ex rel. Slzank v. Howara’ Roaa’ Acaa'., 585 F. Supp. 2d 56, 66 (D.D.C. 2008) (the lDEA does not countenance “‘l\/londay l\/lorning Quarterbacking’ in evaluating the appropriateness of a child’s placement"` (internal quotation marks omitted)). Finally, in evaluating the remainder of plaintiffs’ objections to the IEP, the ll*l() weighed the testimony of the classroom teachers against that of plaintiff Holman and ll.l).`s grandmothcr, concluding that the teachers had superior insight into the functioning of the students in their classrooms and the need for certain sensory integration equipment A.R. at 23-24. That interpretation of the evidence was more than reasonable ln summary, plaintiffs have failed to meet their burden to show that the lHO was wrong to conclude that the April 2015 IEP was “reasonably calculated to enable” H.P. “to make progress appropriate in light of [his] circumstances” Ena’rew F., 137 S. Ct. at 1001. l"`or many of the same reasons, l reject plaintiffs’ third objection to the R&R_ namely, that the R&R incorrectly affirmed the lHO’s determination that H.P. was offered a FAPE from April 21, 2015 through January 29, 2016.' Beginning with the April 2015 ll*",P and running through the January 29, 2016 date on which H.P.’s updated lEP was finalizcd, plaintiffs had a valid and appropriate offer ofplacement in the CES program at rl`akoma. See A.R. at 27-28. That offer was confirmed when plaintiffs wrote DCPS to request a meeting regarding the creation of a new IEP and placement for H.P. and, in response, were informed that H.P. remained welcome to enroll in Takoma “at any time” pursuant to the April 2015 llEP. Id. at 551 [Dkt. # 11-10]. To be sure, plaintiffs and ll.P.’s grandmother continued to object to that option. /\s the IHO noted, however, the fact that plaintiffs "‘just did not agree with the proposal” does not change the fact that the District was offering l*l.l). a F/-\Pll at 'l`akoma during the latter half of 2015. Ia'. at 28. ' rl`|ie ll'l() determined that DCPS failed to offer a FAI)IE beginning on January 29, 2016_the date if finalized l'f.l’.`s updated lEP. As a resu|t, the lHO awarded plaintiffs reimbursement for tuition at the Ailbtli‘ii School beginning on that date. With that in mind, the Coui:t understands plaintiffs to be arguing that ll.P. was denied a FAPE from the date of the April 2015 IEP through the finalization of the .lanuary 29, 2016 lEP. See Def.’s Opp’n to Pls’ Obj. 15 n.l [Dkt. # 26]. Contrary to plaintiffs’ arguments, moreover, the January 2016 update of H.P.’s IEP does not impugn the appropriateness of the April 2015 IEP: As discussed previously, it is well-established that “the adequacy of an IEP can be measured only at the time it is formulated, not in hindsight.” District of Columbia v. Walker, 109 F. Supp. 3d 58, 66 (D.D.C. 2015). I therefore agree with the R&R that the IHO correctly determined that DCPS offered H.P. a FAPE from April 21, 2015 through January 29, 2016. CONCLUSION F or the foregoing reasons, in addition to those given by Magistrate Judge Robinson in her R&R, plaintiffs’ claims fail as a matter of law. Accordingly, upon consideration of the entire record and a’e novo review of the objected-to portions of the R&R, the Court hereby ADOPTS Magistrate Judge Robinson’s recommendations DENIES plaintiffs’ motion for summary judgment, and GRANTS defendant’s motion for summary judgment. An Order consistent with this decision accompanies this 7 9 RICHARD L.LE.bN United States District Judge Memorandum Opinion.