B.D. ex rel. Davis v. District of Columbia

817 F.3d 792, 422 U.S. App. D.C. 18, 2016 WL 1104846, 2016 U.S. App. LEXIS 5189
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 22, 2016
DocketNo. 15-7002
StatusPublished
Cited by46 cases

This text of 817 F.3d 792 (B.D. ex rel. Davis v. District of Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.D. ex rel. Davis v. District of Columbia, 817 F.3d 792, 422 U.S. App. D.C. 18, 2016 WL 1104846, 2016 U.S. App. LEXIS 5189 (D.C. Cir. 2016).

Opinions

Opinion for the Court filed by Circuit Judge TATEL.

Concurring opinion filed by Circuit Judge MILLETT.

TATEL, Circuit Judge:

This case concerns a family’s efforts to enforce a child’s right under the Individuals with Disabilities Education Act (IDEA) to a “free appropriate public education,” or “FAPE.” In administrative proceedings, a hearing officer determined that the District of Columbia Public Schools (DCPS) had denied the child a FAPE and ordered limited compensatory education. The parents sued, challenging the adequacy of the compensatory education award. They also sought to enforce other portions of the Hearing Officer’s Decision that were favorable to them, as well as to require the District to secure a therapeutic residential placement. The district court granted summary judgment for the District. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

“Congress enacted IDEA ... to ensure that all children with disabilities are provided a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected.” Forest Grove School District v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (alterations in original) (internal quotation marks and footnote omitted). In service of this goal, the statute requires school districts in states receiving IDEA funds to provide all resident children, including those requiring special-education services, with a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A); see Forest Grove, 557 U.S. at 232, 129 S.Ct. 2484.

Due to a variety of documented learning and other disabilities, DCPS has provided B.D., the son of Anne and Brantley Davis, [21]*21with special-education services since at least the fall of 2006. In June 2009, B.D.’s new individualized education plan (IEP) reported substantial regression and recommended a change from the school he had attended for three years. For the next two school years, B.D.’s program, provided outside the school setting, “consisted of 21 hours of service per week, including tutoring, speech, counseling services and occupational therapy.” Hearing Officer Determination (HOD) at 6. In the fall of 2011, B.D. enrolled at District expense at the Katherine Thomas School, a private special-education school located in Maryland. Although B.D.’s 2009 IEP remained his most recent, see id. at 19, the Katherine Thomas School planned to provide a one-on-one aide, and, on a weekly basis, 26.5 hours of specialized instruction, two hours of speech-language therapy, three hours of occupational therapy, and two hours of counseling.

Problems with this placement quickly became apparent. After a month or so, the school determined that it was unable to “meet [B.D.’s] present emotional and behavioral needs.” Letter from Cathleen Burgess, Katherine Thomas School, to Ben Persett, DCPS. A report from the school identified issues including disruptive and unsafe behavior. This report also provided summaries of B.D.’s academic baselines, though the precision of these assessments was limited by B.D.’s lack of cooperation. Record evidence reveals not only that B.D. made no meaningful educational progress at the Katherine Thomas School, see Katherine Thomas School Report at 3 (noting that B.D. participated in only 27% of academic class time), but also that he regressed in a number of ways. For example, he grew more compulsive and less able to tolerate the amount of services he had been receiving prior to his stint at Katherine Thomas. Hearing Tr. at 67-69 (Feb. 29,2012); HOD at 8.

In October 2011, shortly after B.D. left the Katherine Thomas School, DCPS held an IEP meeting. Although B.D.’s mother attended, she chose not to participate because she believed DCPS lacked sufficient information or assessments to produce a meaningful IEP. The resulting IEP called for the same specialized services B.D. had been receiving at the Katherine Thomas School, all to be provided outside the general education environment. DCPS also proposed enrolling B.D. at the Children’s Guild, another private special-education school.

Objecting to the IEP and proposed placement, the Davises chose to provide limited in-home tutoring and occupational therapy at their own expense. Although the Davises would have liked to provide additional tutoring and other services— such as psychological counseling—that B.D.’s IEP called for, they were unable to do so because of a lack of funds, as well as concerns over B.D.’s ability to tolerate and benefit from additional services. Hearing Tr. at 65-72 (Feb. 29, 2012).

Meanwhile, the Davises retained a psychologist to evaluate B.D. After examining the child, the psychologist expressed a “strong professional opinion that [B.D.] is not presently ready to be placed in an educational setting.” Report of Dr. Gladys Sweeney at 5. She recommended that assessment of B.D.’s needs would be best accomplished in a “therapeutic inpatient treatment facility, where he can be observed, and treated.” Id. at 6. A short time later, the Davises informed DCPS that Meridell Achievement Center, a residential treatment center in Texas, had accepted B.D. An IEP meeting followed, at which all participants, including B.D.’s mother, agreed that they needed an updated assessment. The Davises requested placement at Meridell in large part to ob[22]*22tain this assessment, but DCPS took the position that such action was not “on the table right now.” IEP Meeting Tr. at 40 (Nov. 29, 2011). Instead, DCPS suggested a referral to the Department of Mental Health to consider placement at a psychiatric residential treatment facility. This referral was sent on December 19.

About a month later, frustrated by the lack of progress, the Davises filed an administrative complaint. See 20 U.S.C. § 1415(f) (laying out applicable procedures). After receiving testimony and documentary evidence, the Hearing Officer ruled that DCPS had denied B.D. a FAPE from August to October 2011, which included B.D.’s time at Katherine Thomas, “by failing to provide [him] with an IEP or an appropriate educational setting.” HOD at 20. The Hearing Officer further held that DCPS had continued to deny B.D. a PAPE for the five-month period beginning with the district’s adoption of the October 2011 IEP and ending on the date of the Hearing Officer’s Decision because: (1) “the IEP team did not rely on sufficient evaluative data” in producing the October 2011 IEP; (2) the Children’s Guild was not an appropriate placement for B.D.; (3) the October 2011 IEP failed to adequately specify B.D.’s current level of academic performance; and (4) “the goals in the IEP do not contain baselines and are not measurable.” Id. at 23.

Turning to the question of remedy, and finding that the Davises had acted appropriately in hiring a tutor and occupational therapist, the Hearing Officer ordered DCPS to reimburse the Davises for their costs. Id. at 23-24. He also awarded B.D. five hours per week of “intensive occupational therapy” for three months as compensatory education, id.

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Bluebook (online)
817 F.3d 792, 422 U.S. App. D.C. 18, 2016 WL 1104846, 2016 U.S. App. LEXIS 5189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bd-ex-rel-davis-v-district-of-columbia-cadc-2016.