Sanchez v. District of Columbia

• Court: District Court, District of Columbia
• Decided: April 25, 2019
• Docket: Civil Action No. 2018-0087
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Z.B., a minor, by and through his mother, Sylvia Sanchez, Plaintiff Civil Action No. 18-87 (CKK) v. THE DISTRICT OF COLUMBIA, et al., Defendants

MEMORANDUM OPINION (April 25, 2019)

This case is about a disagreement concerning the change in school for a child, Z.B., with

autism. Z.B. was attending the nonpublic Kingsbury Day School, but the District of Columbia

Public Schools (“DCPS”) determined that the proper location of services to implement Z.B.’s

Individualized Education Program (“IEP”) was another nonpublic school, Kennedy Krieger.

Plaintiff has filed this lawsuit claiming that DCPS’s decision to change Z.B.’s school was an

illegal change in placement and denied him a free and appropriate public education (“FAPE”).

Presently before the Court are Plaintiff’s [29] Motion for Summary Judgment and Default

Judgment1 and Defendant DCPS’s [30] Cross-Motion for Summary Judgment. Upon

consideration of the pleadings,2 the relevant legal authorities, and the record as a whole, the

1 Plaintiff titles her Motion a “Motion for Summary Judgment and Default Judgment.” However, Plaintiff’s Motion contains no arguments in support of granting a default judgment. Additionally, Defendant filed a timely Answer to Plaintiff’s Second Amended Complaint. See ECF No. 28. Accordingly, the Court will treat Plaintiff’s Motion as one for summary judgment only. 2 The Court’s consideration has focused on the following documents: • Pl.’s Mot. for Summary Judgment and Default Judgment (“Pl.’s Mot.”), ECF No. 29; • Mem. of Points and Authorities in Support of Def.’s Opp’n to Pl.’s Mot. for Summary Judgment, and Cross-Mot. for Summary Judgment (“Def.’s Mot.”), ECF No. 30; • Pl.’s Response to Def.’s Mot. for Summary Judgment and Reply to Def.’s Opp’n (“Pl.’s Reply”), ECF No. 32; and

1 Court DENIES Plaintiff’s Motion and GRANTS Defendant’s Motion. The Court concludes that

Z.B.’s change in schools to Kennedy Krieger was a change in location of services rather than an

illegal change in educational placement. The Court further concludes that Plaintiff’s inability to

fully participate in Z.B’s change in location of services to Kennedy Krieger did not deny Z.B. a

FAPE.

I. BACKGROUND

Plaintiff is the mother of Z.B., a minor child found eligible to receive special education

and related services under the IDEA as a student with a disability. See 20 U.S.C. § 1400 et. seq.

Defendant is a municipal corporation that receives federal funds pursuant to the IDEA in

exchange for providing a free and appropriate public education (“FAPE”) and is obligated to

comply with the IDEA. See 20 U.S.C. § 1411, 1412(a)(1)(A).

A. Statutory Background

The IDEA mandates that local school districts ensure that “[a]ll children with disabilities

residing in the State … regardless of the severity of their disabilities, and who are in need of special

education and related services, are identified, located, and evaluated.” 20 U.S.C. § 1412(a)(3)(A).

Once such children have been identified, located, and evaluated the school district must provide

them with a FAPE. A FAPE is defined as “special education and related services that-- (a) have

been provided at public expense, under public supervision and direction, and without charge; (B)

meet the standards of the State educational agency; (C) include an appropriate preschool,

• Def.’s Reply to Pl.’s Opp’n to Def.’s Cross-Mot. for Summary Judgment (“Def.’s Reply”), ECF No. 34. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 elementary school, or secondary school education in the State involved; and (D) are provided in

conformity with [a child’s] individualized education program.” Id. § 1401(9).

To ensure children with disabilities receive a FAPE, IDEA requires that the school district

create and implement an Individualized Education Plan (“IEP”). Lesesne ex rel. B.F. v. D.C., 447

F.3d 828, 830 (D.C. Cir. 2006). The IEP is created at multi-disciplinary meetings with a

representative of the school district, teachers, parents or guardians, and the child if appropriate.

Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP sets out the child’s baseline educational

performance, establishes long-term and short-term goals for improvement, and lays out the

specialized educational services the child will require to meet those goals. Id. At a minimum, the

IEP must be reasonably calculated to provide “personalized instruction with sufficient support

services to permit the child to benefit educationally from that instruction.” Bd. of Educ. of Hendrick

Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203-04 (1982).

After the IEP is created, the school district must provide the child with an appropriate

educational placement that is in line with the IEP. See Alston v. D.C., 439 F. Supp. 2d 86, 90

(D.D.C. 2006). A child’s appropriate educational placement should be in the least restrictive

environment possible. See Brown v. D.C., 179 F. Supp. 3d 15, 26-27 (D.D.C. 2016). If the child’s

appropriate educational placement is in the regular classroom of a public education system, the

IEP “should be reasonably calculated to enable the child to achieve passing marks and advance

from grade to grade.” Rowley, 458 U.S. at 204. But, if there is no public school which is suitable,

the school district “must pay the cost 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) (internal quotations

omitted).

3 B. Factual Background

In her Motion, Plaintiff filed a separate “Statement of Material Facts Not In Dispute.”

However, as judicial review in this case is based on the administrative record, Plaintiff should

instead have included “a statement of facts with references to the administrative record.” LCvR

7(h)(2). Nevertheless, the Court will consider Plaintiff’s “Statement of Material Facts Not In

Dispute” in conjunction with Defendant’s Statement of Facts in explaining the case’s factual

background.

Z.B. has been identified as eligible for special education and related services based on

his disability classification of Autism Spectrum Disorder. AR 6. Z.B. was enrolled at and

attended Kingsbury, a nonpublic school in Washington D.C., through the end of the 8th grade.

Beginning in 2016, Plaintiff and Mark Branham, with whom Plaintiff shares custody of

Z.B., became concerned that Kingsbury was not an appropriate school for Z.B. AR 10004-09

(Mr. Branham’s testimony that “I didn’t think Kingsbury was serving his needs and in fact

neither did [Plaintiff]”). These concerns were based on fears that Kingsbury was not meeting

Z.B.’s needs and issues with other students. AR 1007-08. Plaintiff attempted, through the school

lottery, to place Z.B. at Capitol Hill Montessori, a public, general education school for the 2016-

2017 school year. AR 491-92. But, Capitol Hill Montessori indicated that it could not meet

Z.B.’s needs. AR 948-49. Following Z.B.’s rejection from Capitol Hill Montessori, Defendant

agreed that, rather than an inclusion setting, “other nonpublic placement that offered different

supports than what Kingsbury had” should be considered. AR 945-46. Because Defendant

4 concluded that Kingsbury was not providing Z.B. with adequate support, Defendant began

considering other nonpublic locations for Z.B. AR 946, 949-50, 955-57, 968-69.

In approximately June 2016, at Plaintiff’s suggestion, Z.B. underwent an independent

comprehensive psychological evaluation (“IEE”) paid for by Defendant. AR 315-26. Plaintiff

hoped that the IEE would show that Z.B. had a disability categorization other than autism and

was prepared to move into a less restrictive setting. However, in September 2016 during a

meeting to review the IEE, Plaintiff, Defendant, and other members of Z.B.’s Kingsbury

education team determined that autism was Z.B.’s correct diagnosis. AR 541-42 (indicating that

“everyone agreed with the autism disability category”). Plaintiff agreed that Z.B. would not be

successful in a general education setting. AR 546 (indicating that Plaintiff “accepted the decision

of the team”). Additionally, the parties decided to allow Z.B. to remain at Kingsbury until Z.B’s

location of services could be further discussed at his October 2016 IEP meeting.

Following the September 2016 meeting, Defendant sent referrals for Z.B. to attend other

non-public schools which could implement his IEP. AR 956-59 (stating that “the referrals were

still rolling in”). However, Plaintiff refused to allow Z.B. to visit those schools as she did not

think that they would meet Z.B.’s needs. See AR 958-59 (stating that Plaintiff “did not”

cooperate with the referral process), 961-62 (indicating that Plaintiff refused to go on a tour of a

potential school), 988 (stating that Plaintiff declined to meet with Defendant).

In October 2016, Z.B.’s IEP team met. Z.B. was classified with Autism Spectrum

Disorder. AR 270. The IEP stated that Z.B.’s education program would include: 26 hours per

week of specialized instruction, 480 minutes per month of occupational therapy, 360 minutes per

month of physical therapy, 240 minutes per month of speech-language pathology, and 360

minutes per month of behavioral support services. AR 287. Plaintiff agreed with the substance of

5 Z.B.’s IEP. AR 502 (indicating that Plaintiff was present at the IEP meeting and agreed with its

content).

In January 2017, Selena Barlow of DCPS became the nonpublic monitor specialist in

charge of Z.B.’s case. AR 1023. Mr. Branham discussed with Ms. Barlow his concerns about

Z.B.’s placement at Kingsbury. AR 1027-28. Ms. Barlow conducted a review of Z.B.’s

documents and performed three observations of Z.B. at Kingsbury. AR 1049-52 (discussing an

observation of Z.B.), 1070-72 (discussing another observation of Z.B.). Based on her

observations, Ms. Barlow became concerned about Z.B.’s location of services. Ms. Barlow noted

that Z.B. was not engaged during class and that he had problems contributing to the class,

following instructions, organizing his work, completing tasks, and behaving appropriately. AR

1048, 1051-53, 1056. Ms. Barlow noted that, despite his behavioral difficulties, Z.B. did not

have a formal Behavioral Implementation Plan (“BIP”) at Kingsbury. AR 1062 (discussing the

need for a BIP based on the lack of “engagement” and “disruptive behaviors”). Based on these

observations, Ms. Barlow determined that the individualized behavior programming for Z.B. was

not adequate and that Kingsbury was not meeting Z.B.’s behavioral needs. AR 1066-70.

Additionally, after reviewing Z.B.’s IEE, Ms. Barlow found Z.B.’s scores to be “very

concerning” and indicative of a lack of progress. AR 1109-10, 1115-17 (explaining that Z.B. “is

in school but he is not engaged in instruction and this has clearly been reflected in his scores with

the educational testing that he is not learning a whole lot”). Ms. Barlow’s concerns about Z.B.’s

academic and behavior progress at Kingsbury were informed by other experiences in which

Kingsbury had not met the academic and behavioral needs of various students. AR 1182, 1186.

Plaintiff contests Ms. Barlow’s observations and determinations, arguing that other

record evidence shows that Z.B. regularly met his behavioral goals and was progressing

6 academically. AR 319-23 (showing academic achievement), 414-422 (behavioral trackers).

However, Ms. Barlow’s observations and findings were consistent with those of others on the

Kingsbury staff. For example, Kingsbury’s clinical psychologist noted that during the 2015-16

school year, Z.B. sought behavioral and emotional support more often than was scheduled. He

was also aware of concerns about Z.B.’s lack of a formal BIP. AR 678-79, 687. Additionally, a

Kingsbury teacher indicated that Z.B. had difficulty maintaining proper behavior and remaining

focused during classes. AR 747-53.

Following Ms. Barlow’s observations, Defendant continued to attempt to find a new

location of services that would meet Z.B.’s educational and behavioral needs. AR 1083 (Ms.

Barlow’s testimony that “I was highly concerned and I didn’t want that to continue so I was

quickly developing the opinion that a new location service was needed”). Defendant sent

Plaintiff and Mr. Branham several letters attempting to set up a meeting to discuss a change in

location of services as well as suggesting potential locations. AR 264 (suggesting three schools

on April 14, 2017), AR 234 (suggesting two schools on June 6, 2017), see also AR 1084-85

(requesting meeting to discuss change in location), 1092 (same), 1094-95 (same). Based on these

letters, Plaintiff understood that Defendant was concerned about Z.B.’s location of services at

Kingsbury. AR 556-57. Plaintiff further understood that, because they were unable to move

forward with the referral process, Defendant was “forced to keep [Z.B.] in a location that [they

did] not see is appropriate.” AR 557. However, Plaintiff did not permit Z.B. to attend visits at the

suggested alternative locations. AR 234 (letter noting Plaintiff’s refusal to allow Z.B. to visit

7 other schools), 1097 (noting that referrals to other schools were cancelled because Plaintiff

would not participate).

In May 2017, Defendant attempted to schedule a meeting prior to the end of the school

year with both parents and Z.B.’s education team at Kingsbury. However, the only date on which

Plaintiff and the Kingsbury team were both available to meet was May 25, 2017 at 1:30 p.m.

Defendant could not attend at that time because Defendant had a meeting concerning another

student at Kingsbury at 2:00 p.m. that day. AR 390-402. Defendant, Plaintiff, and Z.B.’s

Kingsbury team were not able to conduct a meeting prior to the end of the school year; however,

Defendant continued working to persuade Plaintiff to engage in the referral process. Due to

Plaintiff’s refusal to engage in the referral process, Z.B. was not accepted at other potential

service locations. See, e.g., AR 1097 (indicating that Z.B.’s referrals to two schools were

cancelled because Plaintiff would not cooperate).

In approximately July 2017, Defendant began working with Mr. Branham in pursuing a

referral to Kennedy Krieger school for Z.B. Defendant did not include Plaintiff in this referral

process. AR 1099 (noting that Ms. Barlow did not include Plaintiff in the referral). In

determining if Kennedy Krieger would be an appropriate location for Z.B., Ms. Barlow visited

the classes that Z.B. would attend, spoke with the teacher, and observed the services and

supports. AR 1103-04. In addition, Mr. Branham visited the school with Z.B. and was “really

impressed” with the learning environment. AR 1010-11. Plaintiff argues that Defendant’s

decision to work with Mr. Branham instead of with Plaintiff on the referral to Kennedy Krieger

violated a 2015 “Divorce and Custody Order” giving Plaintiff “tie-breaking authority” in the case

8 that good-faith efforts did not result in a shared decision between Plaintiff and Mr. Branham. AR

405, 408.

On August 7, 2017, Z.B. was accepted to Kennedy Krieger, and two days later Defendant

informed Plaintiff and Mr. Branham that “Kennedy Krieger Montgomery County Campus has

been identified as [Z.B.’s] location of services.” AR 306-07. Z.B. could have begun classes on

August 28, 2017. AR 304. Consistent with Z.B.’s IEP, Kennedy Krieger offered the following

services: 30 hours per week of classroom instruction, 22 hours per week of classroom instruction

in July, 480 minutes of occupational therapy per month, 360 minutes of physical therapy per

month, 240 minutes of direct speech and language therapy per month, and 360 minutes of

behavioral support services per month. AR 304. Kennedy Krieger indicated that it would be able

to implement Z.B.’s IEP and develop a formal BIP. AR 901.

On August 11, 2017, Plaintiff filed a due process complaint. AR 21-28. The hearing

officer identified the following issues for adjudication:

• “Whether DCPS denied [Z.B] a FAPE by failing to involve [Plaintiff] in the placement determination in summer 2017. DCPC [sic] circumvented [Plaintiff’s] full involvement in the placement determination, though it was aware of Parents’ court ordered custody agreement. • Whether DCPS denied [Z.B.] a FAPE by failing to convene an IEP meeting at a date and time convenient to [Plaintiff] in spring 2017. • Whether DCPS denied [Z.B.] a FAPE by failing to provide [Plaintiff] with a copy of [her] procedural due process rights when it changed [Z.B.’s] placement in summer 2017. • Whether DCPS denied [Z.B.] a FAPE by failing to identify an appropriate location of services for [Z.B.] in summer 2017.”

AR 5. The administrative due process hearing was held on September 21, 2017 and October 11,

2017. Id. The hearing officer denied all of Plaintiff’s claims, concluding, in relevant part, that

9 “the change from [Kingsbury] to [Krieger Kennedy] was a change in service locations rather

than a change in placement.” AR 15.

On January 15, 2018, Plaintiff filed this lawsuit challenging the conclusions of the

hearing officer. On February 1, 2018, Plaintiff filed a Motion for Preliminary Injunction to

Compel Stay-Put Under the Individuals With Disabilities Act. See ECF No. 9. Plaintiff requested

that the Court order Defendant to allow Z.B. to remain at Kingsbury at public expense while the

lawsuit was pending. On February 16, 2018, the Court denied Plaintiff’s motion, explaining that

Plaintiff was not entitled to a stay-put injunction because Plaintiff was not challenging a

fundamental change to Z.B.’s current educational placement. Feb. 16, 2018 Memorandum

Opinion, ECF No. 17, 1-2.

On August 22, 2018, the parties filed a Joint Motion indicating that Plaintiff and

Defendant had engaged in an IEP meeting at which an updated IEP was developed and that the

location of services for Z.B. for the 2018-2019 school year was agreed to be Katherine Thomas

School. Based on these developments, the parties agreed that several issues in Plaintiff’s

Amended Complaint were moot. Joint Motion, ECF No. 26. In order to narrow the issues, the

Court ordered that Plaintiff file a Second Amended Complaint, Defendant file an Answer, and

then the parties file cross-motions for summary judgment.

Based on Plaintiff’s Second Amended Complaint and the parties’ summary judgment

briefing, there are only two claims still pending before the Court. First, Plaintiff contends that

Defendant committed an illegal change in placement by referring Z.B. to Krieger Kennedy.

Second, Plaintiff claims that Z.B. was denied a FAPE when Defendant committed a procedural

10 violation by preventing Plaintiff from participating in the referral to Krieger Kennedy. See Sec.

Am. Compl., ECF No. 27, ¶¶ 45-53. The Court will address both claims in turn.

II. LEGAL STANDARD

Under the IDEA, a “party aggrieved by the findings and decision” of the hearing officer

may bring a civil action in federal court. 20 U.S.C. § 1415(i)(2)(A). The court “shall receive the

records of the administrative proceedings,” “shall hear additional evidence at the request of a

party,” and, “basing its decision on the preponderance of the evidence, shall grant such relief as

the court determines is appropriate.” Id. at § 1415(i)(2)(C). In a civil action reviewing an IDEA

administrative determination, “[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. ex rel. Robinson v. D.C., 637 F. Supp. 2d 11, 16 (D.D.C. 2009). Where, as

here, neither party asks the Court to consider additional evidence, “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)

(internal quotations omitted).

The party challenging the hearing officer’s determination bears the burden of proof and

must “‘at least take on the burden of persuading the court that the hearing officer was

wrong.’” Reid, 401 F.3d at 521 (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir.

1989)). The preponderance-of-the-evidence standard in this context does not grant the reviewing

court unfettered de novo review. See Rowley, 458 U.S. at 206 (“Thus the provision that a

reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an

invitation to the courts to substitute their own notions of sound educational policy for those of

the school authorities which they review.”). Rather, courts must give “due weight” to the

11 administrative proceedings. Id. “‘[F]actual findings from the administrative proceeding are to be

considered prima facie correct.’” Roark ex rel. Roark v. D.C., 460 F. Supp. 2d 32, 38 (D.D.C.

2006) (quoting S.H. v. State–Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003)).

Because the IDEA permits a reviewing court to entertain additional evidence at the request of a

party, courts employ “‘less deference than is conventional’ in administrative

proceedings.” Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). Nevertheless, the Court

should “defer to the [hearing officer's] factual findings unless it can point to contrary

nontestimonial extrinsic evidence on the record.” S.H., 336 F.3d at 270; accord Alfono v.

D.C., 422 F. Supp. 2d 1, 8 (D.D.C. 2006); Armstrong v. D.C., No. 03-2598, 2005 WL 433448, at

*2 (D.D.C. Feb. 24, 2005

III. DISCUSSION

Plaintiff brings two claims against Defendant. First, Plaintiff contends that Defendant

illegally changed Z.B.’s educational placement by referring him to Krieger Kennedy. Second,

Plaintiff argues that Z.B. was denied a FAPE when Defendant committed a procedural violation

by preventing Plaintiff from participating in Z.B.’s placement at Krieger Kennedy. The hearing

officer concluded that Defendant did not illegally change Z.B.’s educational placement because

the change to Krieger Kennedy was a change in service locations, not a change in educational

placement. Additionally, the hearing officer concluded that Plaintiff’s exclusion from the referral

to Krieger Kennedy did not deny Z.B. a FAPE because Krieger Kennedy was capable of

implementing Z.B.’s IEP and Defendant had made a good-faith attempt to engage with Plaintiff.

The Court agrees.

12 A. Illegal Change in Educational Placement

Plaintiff contends that the hearing officer erred in concluding that transferring Z.B. from

Kingsbury to Kennedy Krieger was a change of location of services, not a change in educational

placement. Instead, Plaintiff argues that Z.B.’s referral to Kennedy Krieger was an illegal change

in placement. The Court disagrees.

The IDEA does not define “educational placement.” But, courts have interpreted

educational placement to go beyond the specific location of the school at which the student is

enrolled. D.K. ex rel. Klein v. D.C., 962 F. Supp. 2d 227, 233 (D.D.C. 2013) (“The physical

school location alone does not constitute an ‘educational placement.’”); Johnson v. D.C., 839 F.

Supp. 2d 173, 177 (D.D.C. 2012) (“The fundamental flaw in Plaintiffs' argument is the

underlying assumption that M.J.'s ‘educational placement’ is the physical school he attends.”);

James v. D.C., 949 F. Supp. 2d 134, 139 (D.D.C. 2013) (noting that “an appropriate location of

services is one which can implement the student’s IEP and meet his specialized educational and

behavioral needs”). Instead, in order to constitute a change in educational placement, the change

must “must identify, at a minimum, a fundamental change in, or elimination of a basic element

of the education program.” Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1582 (D.C. Cir.

1984). Accordingly, a change in the location of the student’s school will not constitute a change

in educational placement unless it is accompanied by a fundamental change in or elimination

from the student’s education program.

Here, Plaintiff has three arguments as to why the hearing officer erred and the referral to

Kennedy Krieger actually resulted in a fundamental change to Z.B.’s education program. First,

Plaintiff argues that the change to Kennedy Krieger resulted in a 7.7% reduction in specialized

instruction during the school year. Second, Plaintiff contends that the change would require Z.B.

13 to attend school during the summer as Kennedy Krieger has an 11-month, rather than a 10-

month, calendar. Third, Plaintiff claims that the distance between Z.B.’s residence and Kennedy

Krieger is more than double the distance between his residence and Kingsbury. The Court will

address each argument in turn.

First, Plaintiff contends that the referral to Kennedy Krieger resulted in a fundamental

change in Z.B.’s education program because Kennedy Krieger offered 7.7% less specialized

instruction during the school year than did Kingsbury. Even though both schools offered the

same hours of related services required under Z.B.’s IEP, Plaintiff argues that the reduction in

specialized instruction is a fundamental change. Compare AR 304 (Kennedy Krieger’s services)

with AR 287 (Kingsbury’s services). The Court finds that Plaintiff’s argument fails to account

for the full measure of instruction offered by Kennedy Krieger.

The difference in hours of specialized instruction offered at Kingsbury and Kennedy

Krieger is based on the difference between the “bell schedules” of the two schools. The term

“bell schedule” refers to when the instructional day starts and ends at a school. Kingsbury has 32

hours of instruction per week. Once Z.B.’s related services are accounted for, Kingsbury

provided Z.B. with 26 hours of specialized instruction per week. AR 287. Kennedy Krieger

offers 30 hours of instruction per week, or two hours less than Kingsbury, due to its shorter bell

schedule. Accordingly, once Z.B.’s related services are accounted for, Z.B. would receive

slightly less than 26 hours of specialized instruction per week.

But, there is no evidence that Z.B.’s IEP required him to have 26 hours of specialized

education per week. AR 1102 (“Like nobody said at any IEP meeting that [Z.B.] has to have this

level of specialized instruction.”). At both Kingsbury and Kennedy Krieger, Z.B. would receive

specialized instruction at all times during the school day that he is not receiving his related

14 services. As such, the number of specialized instruction hours on Z.B.’s IEP was derived by

subtracting the time devoted to Z.B.’s related services from the total bell schedule of Kingsbury.

AR 1101-03. The 26 hours of specialized instruction listed on Z.B.’s IEP relates more to

Kingsbury’s bell schedule than to Z.B.’s specific educational needs.

Moreover, the Court finds that Kennedy Krieger’s shorter bell schedule is not significant

enough to constitute a fundamental change to Z.B.’s education program. This is especially true

when Plaintiff has presented no evidence that Kennedy Krieger’s shorter schedule will deprive

Z.B. of any educational benefit or will prevent him from meeting the goals set in his IEP. And,

Defendant has produced evidence that, even with a shorter bell schedule, Kennedy Krieger can

implement Z.B.’s IEP. AR 12 (finding that Kennedy Krieger “can provide the services listed on

[Z.B.’s] IEP”), AR 16 (same), AR 901 (testimony from Kennedy Krieger official that school

could implement Z.B.’s IEP). Additionally, much of specialized instruction time lost due to

Kennedy Krieger’s shorter bell schedule would be offset by the school’s additional month of

instruction. In addition to the specialized instruction provided from September through June,

Kennedy Krieger provides Z.B. with an additional 22 hours of specialized instruction, minus

related services, per week during July. AR 304.

Accordingly, the Court agrees with the hearing officer and concludes that Kennedy

Krieger’s slightly shorter bell schedule does not represent a fundamental change in Z.B.’s

educational program. AR 15 (finding that the differences in the bell schedules is “a minor

discrepancy in services”); see Savoy v. D.C., 844 F. Supp. 2d 33, 34-35 (D.D.C. 2012)

(explaining that a minimal difference in hours at one school as compared to another was not a

fundamental change in the student’s education program).

15 The Court notes that this case is easily distinguishable from a past decision of this Court

cited by Plaintiff, G.B. v. District of Columbia, 78 F. Supp. 3d 109 (D.D.C. 2015). In G.B., the

student’s IEP required 31 hours of specialized instruction. And, the new location of services

could provide only 27.5 hours. Additionally, the new location was not a fully separate special

education setting and required the student to eat lunch segregated from her peers under adult

supervision. G.B., 78 F. Supp. 3d at 115. The Court concluded that these changes, taken together,

“represent[ed] a fundamental alteration [in] educational placement.” Id.

Here, there is evidence in the administrative record that Z.B.’s IEP did not actually

require 26 hours of specialized instruction per week. See AR 1102. Additionally, both Kennedy

Krieger and Kingsbury are nonpublic schools that offer specialized instruction to Z.B.

throughout the entire school day. As such, unlike in G.B., there is no evidence that Kennedy

Krieger would expose Z.B. to an educational setting that significantly differs from Kingsbury,

socially or educationally. Accordingly, the Court’s decision in G.B. is not relevant to the Court’s

decision in this case.

Second, the Court considers Plaintiff’s argument that the referral to Kennedy Krieger was

a fundamental change to Z.B.’s education program because it required Z.B. to attend school

during the summer. Plaintiff is correct that Kennedy Krieger operates an 11-month schedule with

22 hours of instruction per week in July, while Kingsbury operates a 10-month schedule.

However, the focus in determining whether or not the referral to Kennedy Krieger constituted a

fundamental change is not differences between the school’s calendars. Instead, the focus in

determining whether or not a fundamental change has occurred is Kennedy Krieger’s ability to

implement Z.B.’s IEP as constituted. See Gore, 67 F. Supp. 3d at 153 (explaining that “the

content of [the student’s] IEP is the focal point of the inquiry into whether there has been a

16 fundamental change in [the student’s] education program”). And, evidence in the record shows

that Kennedy Krieger was able to implement Z.B.’s IEP as well as, if not better than, Kingsbury.

AR 12 (finding that Kennedy Krieger “can provide the services listed on [Z.B.’s] IEP”), AR 16

(same), AR 901 (testimony from Kennedy Krieger official that school can implement Z.B.’s IEP

and provide him with a BIP). Accordingly, the Court finds that the additional month of schooling

is not a fundamental change in Z.B.’s education program. See Gore v. D.C., 67 F. Supp. 3d 147,

153-55 (D.D.C. 2014) (concluding that there was not a fundamental change to the student’s

education program when he was moved from a school with an 11-month calendar to one with a

10-month calendar); see also Ward v. D.C., No. 13-cv-0098, 2014 WL 272413, at * 6-7 (D.D.C.

Jan. 24, 2014) (same).

Rather than explaining why Kennedy Krieger’s 11-month calendar would fundamentally

change or eliminate an element of Z.B.’s education program as set forth in Z.B.’s IEP, Plaintiff

points to a District of Columbia Municipal Regulation. Under District of Columbia Municipal

Regulations, students should not be placed in a “[n]onpublic school or program that requires all

students to attend Extended School Year (ESY) programming regardless of need or as a

condition of enrollment.” 5 DCMR A2844.12. “Extended School Year services” are defined as

“special education and related services that [] [a]re provided to a child with a disability beyond

the normal LEA school year, in accordance with the IEP, at no cost to the parents of the child.” 5

DCMR E3001.

Defendant argues that it has not violated District of Columbia Municipal Regulations

because Kennedy Krieger does not provide Extended School Year [“ESY”] programing as

prohibited by the regulations. During the administrative hearing, Maureen Wheeler, an

administrator at Kennedy Krieger, testified that “students attend … for the month of July. So that

17 is the 11th month. So it’s different from ESY because ESY is optional. This program is an 11

month program. … The hours in the month of July are different, they’re not the same. So the

students come from Monday through Thursday and they leave 1 hour earlier.” AR 921. Ms.

Wheeler further explained that the 11-month calendar is “based on the need of the students at our

school” AR 922. According to this testimony, Kennedy Krieger is not a school that requires “all

students to attend [ESY] programming regardless of need.” 5 DCMR A2844.12. Instead,

Kennedy Krieger is simply a school that has adopted an 11-month calendar rather than a 10-

month calendar in order to better meet the needs of the students. Plaintiff cites no evidence in the

record contradicting Ms. Wheeler’s testimony that Kennedy Krieger is “different from ESY.” AR

921. Additionally, Plaintiff cites no evidence otherwise establishing that Kennedy Krieger is an

ESY school as prohibited by the regulation. 3 Accordingly, Plaintiff has not met her burden of

establishing that Defendant violated the District of Columbia Municipal Regulations on referring

students to ESY schools.

Moreover, even if Plaintiff had established that Defendant violated District of Columbia

Municipal Regulations on ESY schools, such violation would not automatically entitle Plaintiff

to relief. Plaintiff is not suing Defendant for violating District of Columbia Municipal

Regulations. Instead, Plaintiff is suing Defendant under the IDEA for an illegal change of

placement. In determining whether or not an illegal change of placement occurred, the court asks

3 In her Motion, Plaintiff states that “Kennedy Krieger has two programs, a 10-month program and an 11-month program” and that Z.B. would be forced to attend the 11-month program, thus constituting a change in placement. Pl.’s Mot., ECF No. 29, 32. Plaintiff fails to cite anything in the record supporting the statement that Kennedy Krieger offers two different programs. Instead, Plaintiff cites “attachment #1.” Id. at 32 n.13. But, attachment #1, is a psychological triennial reevaluation of Z.B. from November 2015, and contains no information about Kennedy Krieger’s program. Accordingly, the Court does not credit this unsubstantiated and unsupported claim.

18 if there has been a “fundamental change in, or elimination of a basic element of the education

program” as provided by the students IEP. Lunceford, 745 F.2d at 1582. The violation of a

District of Columbia Municipal Regulation fails to automatically establish that Z.B.’s referral to

Kennedy Krieger fundamentally changed or eliminated a component of Z.B.’s education

program as outlined in his IEP. And, Plaintiff fails to otherwise explain why Kennedy Krieger’s

11-month schedule would fundamentally change or eliminate a component of Z.B.’s education

program as outlined in his IEP. Instead, record evidence shows that Kennedy Krieger would be

able to implement Z.B.’s IEP as well as develop a BIP, something that Kingsbury either could

not or would not do. AR 901 (stating that Kennedy Krieger could implement Z.B.’s IEP and

provide a BIP). As such, even if Defendant had violated the District of Columbia Municipal

Regulation on ESY schools, Plaintiff has failed to establish that such a violation would result in

an illegal change of placement.

Third, Plaintiff argues that Z.B.’s referral to Kennedy Krieger is an illegal change of

placement because the distance between Z.B.’s residence and Kennedy Krieger is more than

double the distance between his residence and Kingsbury. According to Plaintiff, the commute to

Kennedy Krieger is approximately 10 miles longer than the commute to Kingsbury. The Court

concludes that this relatively minor change in commute distance does not constitute a

fundamental change to Z.B.’s education program.

As an initial matter, Plaintiff’s concerns about a minor addition to Z.B.’s commute say

nothing about Kennedy Krieger’s ability to fulfill Z.B.’s IEP, which is the focus of the Court’s

analysis. See Gore, 67 F. Supp. 3d at 153 (explaining that “the content of [the student’s] IEP is

the focal point of the inquiry into whether there has been a fundamental change in [the student’s]

education program”). Plaintiff fails to explain how the longer commute would fundamentally

19 change or eliminate a component of Z.B.’s education program. Instead, Plaintiff argues that the

additional commute may affect Z.B. because he has challenges with transitions. There is some

evidence in the record that Z.B. struggles to adapt to changes. AR 315-30. However, nothing in

the record connects this difficulty with change to an inability to sustain an additional 10-minute

commute. Moreover, Plaintiff cites nothing in the record showing that, with time and exposure,

Z.B. would be unable to adapt to his slightly longer commute.

Plaintiff also argues that the longer commute would violate the IDEA which requires that

a child’s placement be “as close as possible to the child’s home.” 34 C.F.R. § 300.552(b).

However, this regulation does not require that Defendant place Z.B. at the school closest to his

home, regardless of whether or not that school is able to meet his educational and behavioral

needs. There is evidence in the record that Z.B. was struggling behaviorally and academically at

Kingsbury, the school closest to Z.B.’s home. Both Plaintiff and Mr. Branham were concerned

about whether Kingsbury was the right school for Z.B. AR 1004-09. These concerns were based

on Kingsbury’s ability to meet Z.B.’s needs and Z.B.’s negative interactions with other students.

AR 1007-08. In monitoring Z.B. during his classes, Ms. Barlow’s observations confirmed these

concerns. Ms. Barlow noted that Z.B was easily distracted in his classes and that Kingsbury was

not meeting Z.B.’s academic and behavioral needs. AR 1066-70, 1083, 1116. Kingsbury’s failure

to meet Z.B.’s academic and behavioral needs led Defendant to conclude that a new location of

services was necessary. AR 1083. Under these circumstances, it was reasonable and lawful for

Defendant to move Z.B. from Kingsbury to Kennedy Krieger, a school slightly further from

Z.B.’s home. The IDEA does not require DCPS to leave a student in a school that fails to meet

his needs because an alternative location of services is slightly further away. For these reasons,

the Court concludes that the additional commute to Kennedy Krieger did not constitute a

20 fundamental change to Z.B.’s education program. See DeLeon v. Susquehanna Cmty. Sch. Dist.,

747 F.2d 149, 154 (3d Cir. 1984) (“Minor changes in the daily transportation routine, however,

will not generally have such an impact on the child's learning experience, even when the child is

severely handicapped.”).

Having addressed Plaintiff’s three arguments as to why Z.B.’s referral to Kennedy

Krieger constituted an illegal change in placement, the Court concludes the hearing officer did

not err in determining that “the change from [Kingsbury] to [Kennedy Krieger] was a change in

service locations rather than a change in placement.” AR 15. Z.B. was referred from one

nonpublic, standalone, special education school to another. While Kennedy Krieger had a

slightly different bell schedule than Kingsbury, there is no record evidence that this change

would have any effect on Z.B.’s education program. There is also no evidence that Kennedy

Krieger’s 11-month calendar would fundamentally change Z.B.’s education program. Finally,

there is no evidence that the slightly longer commute to Kennedy Krieger would affect Z.B.’s

education program. Instead, the record evidence suggests that Kennedy Krieger would

implement Z.B.’s IEP better than Kingsbury, which evidence shows was failing to meet Z.B.’s

academic and behavioral needs.

Accordingly, the Court concludes that Z.B.’s referral to Kennedy Krieger was not an

illegal change of placement. Instead, Z.B.’s referral to Kennedy Krieger was merely a change in

Z.B’s location of services.

B. Denial of FAPE based on Exclusion of Plaintiff

Second, Plaintiff argues that Z.B. was denied a FAPE when Defendant excluded her from

participating in the decision to refer Z.B. to Kennedy Krieger. A procedural violation, such as the

exclusion of Plaintiff from the decision-making process, results in a denial of a FAPE only where

21 the procedural inadequacies “impeded the child’s right to a free and appropriate public

education; [] significantly impeded the parents’ opportunity to participate in the decisionmaking

process regarding the provision of a free and appropriate public education to the parents’ child;

or [] caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii). The Court

concludes that Z.B. was not denied a FAPE based on the exclusion of Plaintiff from participating

in the decision to change Z.B.’s location of services.

First, the Court concludes that Z.B. was not denied a FAPE on this ground because the

decision to refer Z.B. to Kennedy Krieger was a change in location of services not a change in

educational placement, which would have necessitated parental involvement. The IDEA requires

that a student’s parents be part of the team that creates the student’s IEP and determines the

student’s educational placement. See 20 U.S.C. § 1414(d)(1)(A)-(B). However, the IDEA does

not “‘explicitly require parental participation in site selection.’” James, 949 F. Supp. 2d at 138

(quoting White ex rel. White v. Ascension Parish School Bd., 343 F.3d 373, 379 (5th Cir. 2003)).

Plaintiff has failed to cite any case, from this Circuit or another, requiring parental involvement

in site selection. Instead, all of the cases cited by Plaintiff in support of her argument refer to

parental participation in the development of the student’s IEP and educational placement. See

e.g., Doug C. v. Hawaii Dep’t of Educ., 720 F.3d 1038, 1044-45 (9th Cir. 2013) (requiring

parental participation in the student’s IEP development and educational placement); Anchorage

Sch. Dist. v. M.P., 689 F.3d 1047, 1055 (9th Cir. 2012) (same); Deal v. Hamilton Cty. Bd. of

Educ., 392 F.3d 840, 857-59 (6th Cir. 2004) (explaining that a predetermination of services can

violate the parents’ right to participate in the IEP process).

The Court has already determined that the referral to Kennedy Krieger was a change in

location of services, not a change in educational placement. See Supra Sec. III.A; see also AR 15

22 (hearing officer’s finding that the change was a “change in service locations rather than a change

in placement”). Accordingly, Defendant was not required to include Plaintiff in the decision to

change the location of Z.B.’s services to Kennedy Krieger. And, Plaintiff presents no argument

that she was otherwise excluded from participating in the development of Z.B.’s IEP or

educational placement. See AR 502 (Plaintiff indicating that she participated in and agreed with

Z.B.’s IEP). Accordingly, Plaintiff has failed to establish a procedural violation which would

result in a denial of a FAPE to Z.B.

Even if Defendant had been required to include Plaintiff in changing Z.B.’s location of

services, Plaintiff has failed to establish that Defendant “significantly impeded [her] opportunity

to participate in the decisionmaking process.” 20 U.S.C. § 1415(f)(3)(E)(ii). In reviewing this

claim, the hearing officer explained that “[t]he instant situation is not one in which DCPS

avoided [Plaintiff] entirely or consistently in favor of [Mr. Branham]. Rather, under the

particular facts of this case, [Plaintiff] does not meet the burden of proving that DCPS denied

[Z.B.] a FAPE by changing [Z.B.’s] school from [Kingsbury] to [Kennedy Krieger], or in

working with [Mr. Branham] rather than both parents, when after repeated attempts to engage

both parents, [Plaintiff] declined in several key regards to participate in selecting a different

service location for [Z.B.]” AR 15. Plaintiff has failed to introduce evidence sufficient to rebut

the hearing officer’s conclusion.

Defendant regularly communicated with Plaintiff and Mr. Branham regarding concerns

about Kingsbury’s inability to meet Z.B.’s educational and behavioral needs, as well as a

potential change in location of services. Plaintiff understood that Defendant had concluded that

Kingsbury was an inappropriate location for Z.B. AR 556-57, 562-64. Despite this knowledge,

Plaintiff did not fully engage in the process of finding Z.B. a new location of services.

23 For example, Plaintiff refused to visit multiple proposed schools, resulting in the rejection

of Z.B.’s applications from those schools. AR 234 (letter noting Plaintiff’s refusal to allow Z.B.

to visit other schools), 1097 (noting that referrals to other schools were cancelled because

Plaintiff would not participate). Additionally, prior to the end of the school year, Defendant

attempted to conduct a meeting with Plaintiff and Mr. Branham to discuss Z.B.’s location of

services. Plaintiff indicated to Kingsbury that she could meet only in the afternoons after 1:30

p.m. Additionally, Plaintiff required that members of Z.B.’s Kingsbury education team be at the

meeting. AR 1086-87. Z.B.’s Kingsbury education team provided only one day on which they

were available at 1:30 p.m. Unfortunately, Defendant had another meeting regarding a different

student that day at 2:00 p.m. at Kingsbury and, as such, could not meet regarding Z.B. at 1:30

p.m. Due to these restrictions, Defendant was unable to arrange a meeting with Plaintiff to

discuss a change in Z.B.’s location of services prior to the end of the school year. AR 1087-90,

1095-96.

Plaintiff contends that Defendant’s failure to meet on the only day which both Plaintiff

and the Kingsbury team were available is evidence of Defendant’s intent to exclude her from the

site selection process. The Court disagrees. Defendant had a previously-scheduled meeting at

2:00 p.m. on the only day suggested by Kingsbury. As such, it is reasonable that Defendant

would not be able to conduct Z.B.’s meeting, which would begin just thirty minutes prior to the

already-scheduled meeting, even if the two meetings were to be held at the same location.

Defendant could have reasonably concluded that thirty minutes would be an insufficient duration

of time to conduct a meeting regarding a child’s contested location of services with multiple

stakeholders holding differing points of view. The Court does not find Defendant’s scheduling

conflict to be evidence of a predetermined decision to exclude Plaintiff, especially given

24 Defendant’s multiple other attempts to include Plaintiff in the location of services determination.

See AR 16 (hearing officer’s finding that Defendant’s inability to conduct a meeting on the date

suggested by Kingsbury was “due to other meetings … already scheduled at [Kingsbury]

regarding other students”).

Having failed to obtain Plaintiff’s assistance in finding a new location for Z.B., and

believing that Kingsbury was an inappropriate location for Z.B., Defendant worked exclusively

with Mr. Branham in pursuing a referral to Kennedy Krieger. AR 1099. In concluding that

Kennedy Krieger was an appropriate placement for Z.B., Defendant visited the classes that Z.B.

would attend, spoke with Z.B.’s potential teacher, and observed the individualized supports in

place. AR 1103-04. Additionally, Mr. Branham visited the school and was “really impressed.”

AR 1010-11.

Based on the facts as explained above, the Court concludes that Plaintiff was not

wrongfully excluded from the location of services decision. Defendant repeatedly attempted to

engage Plaintiff in selecting a new school, which would more appropriately implement Z.B.’s

IEP. But, Plaintiff refused to participate in the process, resulting in rejections from multiple

schools. Accordingly, the Court finds that Defendant did not commit a procedural violation,

resulting in a denial of a FAPE to Z.B., when Defendant chose to work with Mr. Branham in

obtaining a referral to Kennedy Krieger.

Plaintiff has two arguments as to why her exclusion from the decision to refer Z.B. to

Kennedy Krieger resulted in the denial of a FAPE to Z.B. First, Plaintiff argues that Defendant

had “predetermined” Z.B.’s educational placement and failed to consider her arguments for a

less restrictive setting or a new disability diagnosis. Second, Plaintiff contends that Defendant’s

25 decision to work exclusively with Mr. Branham violated a custody order which granted Plaintiff

“tie-breaking” authority. The Court is persuaded by neither argument.

First, Plaintiff claims that Defendant “predetermined” Z.B.’s educational placement, thus

wrongfully excluding her from participating in the decision-making process. Specifically,

Plaintiff faults Defendant for not considering her requests for a less restrictive setting and for a

change in Z.B.’s disability classification. Specifically, Plaintiff contends that Z.B.’s IEP should

have reflected a “specific learning disability” in math rather than only autism.4 Plaintiff’s

concerns regarding Z.B.’s least restrictive setting and disability classification pertain to his IEP,

not to his referral to Kennedy Krieger. But, Plaintiff did not challenge Z.B.’s IEP during the

administrative hearing. Instead, Plaintiff’s challenges were limited to Z.B.’s change in location

of services to Kennedy Krieger. “[A]n allegation not presented to the independent hearing officer

at a due process hearing may not be raised for the first time in this Court.” Holdzclaw v. District

of Columbia, 524 F. Supp. 2d 43, 47 (D.D.C. 2007); see also Cox v. Jenkins, 878 F.2d 414, 419-

20 (D.C. Cir. 1989).

If Plaintiff was concerned that Z.B.’s IEP did not accurately reflect his least restrictive

setting or his true disability classification, she could have challenged his IEP. But, there is no

evidence that Plaintiff indicated disagreement with Z.B.’s IEP before now. During the

administrative hearing, Plaintiff stated that she had participated in the development of Z.B.’s

IEP. AR 502. Plaintiff further indicated that she agreed with the substance of Z.B.’s IEP. AR 503

4 In her Motion, Plaintiff argues that Z.B.’s IEP was inappropriate because his most recent evaluation indicates that he has a specific learning disability. Exhibit 3, ECF No. 29-3. But, this evaluation was conducted after Plaintiff filed her lawsuit and was not before the hearing officer. Moreover, as this evaluation post-dates Defendant’s decision to refer Z.B. to Kennedy Krieger, the evaluation cannot be used as evidence that the referral to Kennedy Krieger was inappropriate given the information available to Defendant at the time.

26 (“I agreed on what they were saying that’s what he needed.”). Plaintiff cannot indicate agreement

with Z.B.’s IEP during the administrative hearing, then, before this Court, use alleged errors in

the IEP’s least restrictive setting and disability classification to argue that she was wrongfully

excluded from deciding Z.B.’s location of services. See Schoenbach v. D.C., 309 F. Supp. 2d 71,

87 (D.D.C. 2004) (noting that parents contributed to the student’s inappropriate IEP when they

did not contest the IEP during its development).

Before the hearing officer and in her Second Amended Complaint, Plaintiff challenged

only issues concerning Z.B.’s referral from Kingsbury to Kennedy Krieger. Plaintiff’s present

argument pertaining to the appropriateness of Z.B.’s IEP is a red herring. Evaluating the

appropriateness of Z.B.’s IEP does not assist the Court in determining whether or not Plaintiff

was wrongly excluded from participating in the decision to send Z.B. to Kennedy Krieger.

Kennedy Krieger was selected as a location that could implement Z.B.’s IEP as it was written at

the time, not as Plaintiff now argues it should have been written. After indicating agreement with

Z.B.’s IEP, Plaintiff cannot now, for the first time in this lawsuit, argue that Z.B.’s IEP was

inappropriate thus leading to an inappropriate placement.

Second, Plaintiff argues that Defendant violated the custody order between herself and

Mr. Branham by excluding her from the decision to refer Z.B. to Kennedy Krieger. Under Mr.

Branham and Plaintiff’s “Final Divorce and Custody Order,” “[i]n the event that the parties

cannot reach a shared decision regarding their children after a good-faith effort to do so,

[Plaintiff] shall have tie-breaking authority.” AR 408. Plaintiff contends that Defendant violated

the custody order by not grating her “tie-breaking authority” over the decision of Z.B.’s location

of services.

27 But, Plaintiff fails to acknowledge that this custody order is between herself and Mr.

Branham, not between herself and Defendant. The obligations in the custody order go to the

parents, not to Defendant. Accordingly, Defendant is not bound by the dictates of the custody

order.

Even if Defendant were bound by the custody order, the order grants Plaintiff tie-

breaking authority only following a “good-faith effort” to reach a shared decision. Based on the

record evidence, it is far from evident that Plaintiff engaged in a good-faith effort to reach an

agreement on Z.B.’s location of services. Plaintiff refused to even visit many of the schools

recommended by Defendant. AR 958-59 (discussing Plaintiff’s refusal to visit two schools),

1097. Additionally, Plaintiff’s scheduling demands, as well as her requirement that Z.B.’s

Kingsbury education team be in attendance, made it impossible for Defendant to schedule a

meeting to discuss Z.B.’s location of services prior to the end of the school year. Accordingly,

even under the terms of the custody order, it is not clear that Plaintiff was entitled to exercise tie-

breaking authority and prevent Defendant from referring Z.B. to a school which would provide

him with a FAPE. The Court finds that the custody order did not require Defendant to continue

sending Z.B. to a school which Defendant determined could not meet Z.B.’s educational and

behavioral needs because Plaintiff would not engage in the process of selecting a new location of

services which would implement Z.B.’s IEP.

Considering Plaintiff’s arguments as well as the record evidence, the Court finds support

for the hearing officer’s conclusion that Plaintiff “does not meet the burden of proof on this

issue.” AR 15. Defendant was not required to include Plaintiff in the decision to refer Z.B. to

Kennedy Krieger as the referral was a change in the location of services rather than a change in

educational placement. Even if Defendant were required to seek parental involvement,

28 Defendant made multiple attempts to engage Plaintiff in the process of selecting a new location

of services for Z.B. Ultimately, Defendant was forced to choose between continuing to send Z.B.

to a school which was not meeting his educational and behavioral needs or working with Mr.

Branham, who maintains shared legal and physical custody over Z.B., to find a new location of

services. Defendant reasonably chose to work with Mr. Branham to select a location of services

which would implement Z.B.’s IEP. Accordingly, the Court finds that Z.B. was not denied a

FAPE based on Plaintiff’s exclusion from the decision to refer Z.B. to Kennedy Krieger.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment

and GRANTS Defendant’s Motion for Summary Judgment. The Court concludes that Z.B.’s

referral to Kennedy Krieger was not an illegal change in placement because the referral was a

change in location of services which did not fundamentally change or eliminate any component

of Z.B.’s education program. The Court further concludes that Z.B. was not denied a FAPE when

Plaintiff was excluded from the decision to refer Z.B. to Kennedy Krieger because Defendant

was not required to involve Plaintiff in the change of location of services but still made multiple,

reasonable attempts to involve Plaintiff. An appropriate Order accompanies this Memorandum

Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge