Opinion
Civil Action No. 99-2404 (RWR).
March 31, 2005
MEMORANDUM OPINION
Laura Solomon brought this action on behalf of her disabled daughter, Maya Solomon-Lane, to require the District of Columbia to pay tutoring expenses incurred as a result of the District of Columbia's failure to provide Maya with a free appropriate public education ("FAPE") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. (2000). Plaintiffs ask that under an administrative Hearing Officer's order requiring the District to reimburse plaintiffs for private school tuition expenses, the reimbursement include tutoring expenses not expressly addressed in the order. Defendants moved to dismiss alleging that plaintiffs failed to exhaust their administrative remedies for the tutoring expenses sought. Plaintiffs opposed this motion and moved for summary judgment. Because plaintiffs exhausted their administrative remedies prior to filing this action, jurisdiction is proper, and defendants' motion to dismiss will be denied. Furthermore, because no genuine issue of material fact exists, and plaintiffs are entitled to reimbursement for tutoring expenses as a matter of law, plaintiffs' motion for summary judgment will be granted.
BACKGROUND
The IDEA represents "an ambitious federal effort to promote the education of handicapped children." Board of Educ. of Hendrick Hudson Ctr. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (discussing the Education for All Handicapped Children Act, later amended in 1990 and 1997 and renamed the IDEA). Among other things, the IDEA supplies the states with federal funding for specialized education services to assist disabled children. A principal purpose is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs[.]" 20 U.S.C. § 1400(d)(1)(A).
Maya Solomon-Lane, a resident of the District of Columbia, is a disabled student eligible for special education and related services under § 1401(3) of the IDEA. Following an administrative hearing, the District of Columbia Public School system ("DCPS") was ordered to fund Maya's enrollment at the National Child Research Center for the 1994-1995 school year. In June 1995, a meeting was held pursuant to § 1414(a) to design an individual educational plan ("IEP") for Maya. DCPS was notified of the meeting but opted not to send a representative. When DCPS failed to provide a placement recommendation for Maya for the 1995-1996 school year, Laura Solomon, Maya's mother, enrolled Maya in the Lowell School, a non-public school, for the 1995-1996 school year. Maya's IEP for 1995-96 indicates that DCPS agreed to pay for special education for 5 days, 32 hours per week, as well as certain "related services," specifically, twice-weekly occupational therapy sessions and thrice-weekly speech and language therapy sessions. DCPS did not make placement recommendations for Maya for the 1996-1997 or 1997-1998 school years, and Maya continued to attend the Lowell School. During the same period, DCPS failed to conduct re-evaluations or to develop an IEP for Maya. An IEP dated September 1998 specifically provided for Maya to receive 10 hours of special education and the "related services" of speech and language therapy sessions twice per week. Maya continued to attend Lowell School in 1998-99.
The IEP is a comprehensive written statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. See 20 U.S.C. § 1414(d).
In October 1998, Maya's mother requested a due process hearing and, together with a letter dated April 7, 1999 amending that request, alleged, among other things, that DCPS had failed to provide Maya with a FAPE during the 1996-1997, 1997-1998 and 1998-1999 school years, to conduct timely evaluations, or to develop IEPs, as required by law. (Def.'s Mot. to Dismiss, Exhs. 2 3.) The April 7, 1999 letter sought relief for "all outstanding related services and private tutoring services that have not been reimbursed previously by DCPS." (Id., Exh. 3.) Maya had received tutoring and academic assistance from a speical education instructor at Lowell as part of her specially designed instruction. At the August 3, 1999 hearing, plaintiffs limited their request for relief to "reimbursement for the '96-'97, '97-'98, and '98-'99 school years at Lowell . . . but not related services." (Id., Exh. 6.) DCPS did not present any witnesses at the hearing. (See id., Exh. 1.) In a written decision issued on August 12, 1999, Hearing Officer Archie L. Palmore concluded that DCPS had denied Maya a FAPE and failed to provide Maya with triennial evaluations as required by the IDEA, that Maya benefitted from her placement at the Lowell School, and that DCPS knew of, condoned, acquiesced in and approved of Maya's attendance at the Lowell School for the 1996-97, 1997-98, and 1998-99 school years. (Id., Exh. 1 at Finding, Decision.) Accordingly, the Hearing Officer ordered DCPS to "reimburse the Parent for tuition at the Lowell School for the 1996-97, 1997-98 and 1998-99 school years." (Id.) In his decision, the Hearing Officer did not specifically mention reimbursement for tutoring and special education, or for private educational evaluations obtained at Maya's parents' expense. Nor did the Hearing Officer define the term "tuition" as used in his decision.
On September 1, 1999, plaintiffs' counsel sent the Hearing Officer a letter inquiring whether he intended the term "tuition" to include "all costs involved with my client attending Lowell School for the years in question." (Id., Exh. 4.) The Hearing Officer treated the letter as a Motion for Clarification and provided DCPS an opportunity to respond. (Id., Exh. 5.) Counsel for DCPS opposed the motion on the grounds that at the due process hearing, plaintiffs' counsel pursued only tuition reimbursement, and waived reimbursement for "related services." (Id., Exh. 6.) On November 2, 1999, the Hearing Officer denied the motion without explanation. (Id., Exh. 7.) On September 10, 1999, plaintiffs filed a complaint with this court seeking a judgment for reimbursement of all costs associated with Maya's placement at Lowell, including tuition, related services not already paid, tutoring, special education instruction and evaluations.
DISCUSSION
The IDEA requires that the District of Columbia "provide a `free appropriate public education' (FAPE) to all children with disabilities." Moss ex rel. Mutakabbir v. Smith, 794 F. Supp. 11, 12 (D.D.C. 1992) (citing 20 U.S.C. § 1412). "In addition, the IDEA `establishes an elaborate procedural mechanism to protect the rights of handicapped children.'" Id. (quoting Smith v. Robinson, 468 U.S. 992 (1984)). Parents or guardians must be provided with "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6). The state or local education agency reviews complaints at an "impartial due process hearing." 20 U.S.C. § 1415(f)(1). "Under IDEA, parties aggrieved by an administrative decision may sue in either state or federal court." Reid v. District of Columbia, ___ F.3d ___, 2005 WL 678385 (D.C. Cir. Mar. 25, 2005) (citing 20 U.S.C. § 1415(i)(2)(A)). "A party is considered `aggrieved' under [IDEA] . . . where relief requested in satisfaction of the Act is denied." Diatta v. District of Columbia, 319 F. Supp. 2d 57, 63 (D.D.C. 2004) (citations omitted).I. MOTION TO DISMISS
The District of Columbia has moved to dismiss plaintiffs' complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that this court lacks jurisdiction over the plaintiffs' claims. Defendants maintain that plaintiffs have not adequately exhausted administrative remedies under the IDEA with regard to their claim for reimbursement of expenses other than tuition, and that until the exhaustion requirement is satisfied, this court lacks jurisdiction to hear the present case. Plaintiffs oppose, asserting they have exhausted the available administrative remedies by participating in a due process hearing and seeking clarification of the order issued.
Defendants' motion also seeks dismissal under Rule 12(b)(6) of the complaint's claim for tuition reimbursement, arguing that it fails to state a claim for which relief may be granted. Defendants argue that since the Hearing Officer's order already granted plaintiffs reimbursement for tuition expenses, as contrasted with tutoring expenses, plaintiffs are not aggrieved parties entitled to any relief on the tuition claim. Plaintiffs' subsequent filings make clear, though, that the reimbursement they seek in this action is limited to the tutoring expenses and attorneys fees and costs not previously paid by defendants. (See, e.g., Mem. of P. A. in Supp. of Pl.'s Mot. for Summ. J. at 2, 8.) Defendants' Rule 12(b)(6) argument, then, is moot.
When considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction in an IDEA action,
a court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff. The court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. . . . [F]ailure to exhaust administrative remedies may properly be raised in a motion to dismiss for lack of subject matter jurisdiction.Brown v. Metropolitan Sch. Dist. of Lawrence Township, 945 F. Supp. 1202, 1206 (S.D. Ind. 1996) (quotations and citations omitted).
[A] plaintiff must first exhaust the . . . administrative remedies provided under the Act . . . before bringing an action in federal court. . . . This point was recently emphasized by the Supreme Court in Honig v. Doe, 484 U.S. 305 . . . (1988), where the Court made it clear that judicial review is normally not available . . . until all administrative proceedings are completed.Cox v. Jenkins, 878 F.2d 414, 418 (D.C. Cir. 1989) (quotations and citations omitted).
On October 13, 1998, plaintiffs requested an administrative hearing pursuant to 20 U.S.C. § 1415(f). While plaintiffs' original request did not include a claim for tutoring reimbursement, the letter dated April 7, 1999 from plaintiffs' counsel did. The parties disagree as to whether a claim for tutoring reimbursement was expressly raised and argued at the due process hearing. However, defendants "admit that the hearing officer received a written exhibit on the issue of the payment of tutoring services," and that "in closing argument, plaintiffs' counsel asked the Hearing Officer to `order DCPS to reimburse for the cost of Maya's tuition and special education at the Lowell School' for the 1996-97, 1997-98, and 1998-99 academic years." (Def.'s Opp'n to Facts ¶ 21.)
The Hearing Officer's August 12, 1999 decision ordering defendants to reimburse plaintiffs for the cost of tuition for three years did not specifically address reimbursement for tutoring expenses. Plaintiffs subsequently asked the Hearing Officer to confirm that the term "tuition" used in his order included "all costs involved with my client attending Lowell School for the years in question," and to modify his order to express that intention. (Def.'s Mot. to Dismiss, Exh. 4.) Defendants opposed the motion for clarification, and the motion was denied without explanation. (Id., Exh. 6 7).
The record shows that plaintiffs exhausted all available administrative remedies with regard to their claims for reimbursement. "Exhaustion of administrative remedies requires simply that where a statute provides for an administrative remedy, that remedy must be sought before seeking judicial review." Phillips v. Board of Educ. of Hendrick Hudson Sch. Dist., 949 F. Supp. 1108, 1112 (S.D.N.Y. 1997) (citations omitted). "[F]or issues to be preserved for judicial review they must first be presented to the administrative hearing officer."David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 424 (1st Cir. 1985) (citation omitted); see also Maldonao v. Benitez, 874 F. Supp. 491, 496 (D.P.R. 1995) ("plaintiffs are required to file a complaint with the educational service provider, [and] attend a due process hearing held by the agency . . . before filing a civil action in federal court."). "The purpose of the exhaustion rule is to permit agencies to exercise discretion and apply their expertise, to allow the complete development of the record before judicial review, to prevent parties form circumventing the procedures established by Congress, and to avoid unnecessary judicial decisions by giving the agency an opportunity to correct errors." Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 724 (10th Cir. 1996) (citing Association for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1044 (10th Cir. 1993)); see also Cox v. Jenkins, 878 F.2d 414, 419 (D.C. Cir. 1989). However, "the exhaustion doctrine `is not to be applied inflexibly,'" Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir. 1989) (quoting McGee v. United States, 402 U.S. 479, 483 (1971)), nor should plaintiffs be denied substantive relief in court after they have taken "all measures to secure administrative relief which would reasonably be expected of them." Kerr Ctr. Parents Ass'n v. Charles, 897 F.2d 1463, 1470 (9th Cir. 1990).
Here, plaintiffs filed a request for a due process hearing, presented their case to a Hearing Officer, and subsequently sought clarification of the Hearing Officer's decision. Cf. Moss ex rel. Mutakabbir, 794 F. Supp. at 13 (holding that plaintiffs did not exhaust administrative remedies because they "have made no complaint to the DCPS nor have they requested a due process hearing"); Lemon v. District of Columbia, 920 F. Supp. 8, 11 (D.D.C. 1996) (finding no exhaustion where plaintiffs presented no evidence that they had participated at all in a substantive administrative proceeding); Garro v. Connecticut, 23 F.3d 734, 737 (2d Cir. 1994) (holding that plaintiff did not exhaust administrative remedies because "Garro did not raise, and the hearing officer did not consider, any alleged procedural violations by the local defendants."). Defendants contend that "the only issue presented to the hearing officer was whether plaintiffs were entitled to reimbursement for the cost of tuition." (Def.'s Mot. to Dismiss at 3.) "Since plaintiffs could have pursued reimbursement for all the costs of related services and the performance of independent evaluations at the administrative level and since such relief was not pursued at the due process hearing," defendants argue, "plaintiffs are precluded from seeking such relief in this Court under the IDEA." (Id. at 5.) However, the record indicates, and defendants concede, that even if plaintiffs' original complaint at the administrative level did not contain a request for reimbursement of tutoring expenses, plaintiffs' amended complaint of April 7, 1999 included a claim for tutoring services. Additionally, plaintiffs presented to the Hearing Officer a written exhibit regarding tutoring expenses, and, in his closing argument, plaintiffs' counsel asked the Hearing Officer to "order DCPS to reimburse the cost of Maya's tuition and special education at the Lowell School." (Def.'s Opp'n to Facts ¶ 21.)
On multiple occasions, then, plaintiffs raised the issue of reimbursement for tutoring expenses, providing the Hearing Officer with an opportunity to apply his expertise to the matter. Moreover, contrary to defendants' claim that they "never had the opportunity to offer rebuttal evidence concerning Maya's tutoring services" (Def.'s Opp'n to Mot. for Summ. J. at 5), plaintiffs' claim for tutoring reimbursement, reiterated at several stages of the administrative process, put defendants on notice of the claim and afforded defendants ample opportunity to introduce relevant evidence and rebuttal arguments prior to judicial review.
Even if defendants did not perceive the tutoring reimbursement issue to have been expressly raised until plaintiffs' motion for clarification, plaintiffs nonetheless satisfied the exhaustion requirement by including the tutoring claim in their amended complaint, and presenting oral arguments and written evidence on the issue before the Hearing Officer.See Phillips, 949 F. Supp. at 1112 (holding that the exhaustion requirement was satisfied when the plaintiff raised the relevant issue at the due process hearing, but did not focus on it).
Defendants further argue that tutoring services are "related services" under the IDEA, and that since plaintiffs expressly declined to seek reimbursement for related services, they could not have exhausted administrative remedies with regard to that particular claim. Although tutoring is understood to be one of the many services covered by the IDEA, the statute does not expressly categorize tutoring as either "related services," or "special education." "Related services" include
"transportation, and such developmental, corrective, and other supportive services (including speech-language pathology . . . psychological services, physical and occupational therapy . . .) as may be required to assist a child with a disability to benefit from special education. . . ."20 U.S.C. § 1401(22). By contrast,
[t]he term "special education" means specially designed instruction . . . to meet the unique needs of a child with a disability, including . . . instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. . . . 20 U.S.C. § 1401(25). Academic tutoring is specially designed instruction, or special education, as opposed to a related service. See Spilsbury v. District of Columbia, 307 F. Supp. 2d 22, 26 (D.D.C. 2004) (referring to "academic tutoring"); Johnson v. District of Columbia, 190 F. Supp. 2d 34, 37 (D.D.C. 2002) (referring to "one-on-one tutoring as compensatory education"); Roca v. District of Columbia, Civ. No. 02-01646 (HHK), 2005 WL 681462, *5 (D.D.C. Mar. 14, 2005) (distinguishing "related services" of occupational therapy from "individual tutorial support specifically designed to help him improve his reading and writing skills"). Measured against the statutory definitions, the record evidence in this case supports the conclusion that Maya's tutoring at Lowell was specially designed instruction that constituted a form of special education, rather than a related service intended to aid in the provision of special education. Thus, when plaintiffs' counsel stated that plaintiffs were not seeking reimbursement for related services, plaintiffs' counsel did not waive his request for reimbursement for Maya's tutoring services, nor did he preclude plaintiffs from appealing that issue to the federal district court.
Plaintiffs' counsel even declared that "any time that I used the term `related services,' or answered questions that employed the term `related services,' it was my understanding that this term encompassed Maya's occupational therapy and speech and language therapy. I never understood this term to include Maya's tutoring services." (Decl. of Matthew Bogin ¶ 5.)
The record shows that plaintiffs have exhausted their administrative remedies with regard to their claim for reimbursement of tutoring services. Plaintiffs presented their case at a due process hearing, and subsequently sought clarification of the resulting decision. Throughout this process, plaintiffs reiterated, both to defendants and to the Hearing Officer, their claims to recover tutoring expenses. Therefore, defendants' motion to dismiss will be denied.
II. MOTION FOR SUMMARY JUDGMENT
Plaintiffs have moved for summary judgment on their request to require defendants to reimburse plaintiffs, as part of the Hearing Officer's award, for the cost of tutoring services incurred when defendants failed to provide Maya with a FAPE under the IDEA, the sole relief they now seek aside from attorneys fees and costs. Plaintiffs maintain that summary judgment is appropriate because there is no dispute with regard to any genuine issues of material fact, and the tutoring services were an integral part of Maya's special education program at Lowell. Defendants oppose the motion, arguing that plaintiffs are not entitled to reimbursement for tutoring expenses. Additionally, defendants again argue that plaintiffs have failed to exhaust their administrative remedies and should be precluded from raising the issue of tutoring at this point.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of proving that there is "no genuine issue." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Once that burden has been met, the nonmovant must "go beyond the pleadings and . . . designate `specific facts showing that there is a genuine issue for trial.'" Id. However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). Moreover, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-250.
A. Services Provided for in IEP
Defendants claim that summary judgment must be denied because a factual dispute exists as to whether Maya's 1998-99 IEP provided for tutoring services. They claim that since the 1998-99 IEP specifically identifies speech and language therapy as an included related service but does not explicitly include tutoring, plaintiffs can claim no entitlement to reimbursement for tutoring.
It is telling that although Maya's IEP does not specify that she requires occupational therapy, defendants have funded her occupational therapy. (Def.'s Opp'n to Facts ¶ 15.)
The failure of the 1998-99 IEP to specify tutoring as a related service is inconsequential. As is discussed above, the facts of this case show that the tutoring Maya received at Lowell was special education under 20 U.S.C. § 1401(25), not a related service under 20 U.S.C. § 1401(22), and would not have been identified in any IEP as a related service. It is undisputed that DCPS agreed to pay for special education services as called for in Maya's IEP for the 1995-96 school year, that her IEP for the 1998-99 school year again called for special education services, that Maya received tutoring from a special education instructor at Lowell, and that DCPS condoned Maya's attendance at Lowell for three years. Defendants have not demonstrated the presence of "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249-50.
B. Exhaustion of Administrative Remedies for Tutoring Services
Defendants also argue that plaintiffs' motion must be denied on the grounds that plaintiffs failed to exhaust administrative remedies. As is discussed above, plaintiffs satisfied the exhaustion requirement as to their tutoring reimbursement request. Accordingly, defendants' reliance on Sims v. Apfel, 530 U.S. 103 (2000), is misplaced. In Sims, the Court established that where a claim on appeal had not been asserted during the administrative hearing, the claimant is precluded from raising the issue for judicial review. The Court further articulated that the more adversarial the administrative hearing, the stronger the rationale for requiring issue preclusion.Sims, 530 U.S. 103. Defendants suggest that "given the adversarial nature of a due process hearing pursuant to the IDEA, this Court must preclude plaintiffs from seeking reimbursement for tutoring services." (Def.'s Opp'n to Mot. for Summ. J. at 5.) However, the adversarial nature of the due process hearing does not bar plaintiffs' claim here, as plaintiffs did raise their claim for tutoring reimbursement at the administrative level. Contrary to defendants' argument, plaintiffs are not being "allowed to win a victory in this Court on an issue upon which defendants have had no opportunity to present evidence." (Id.) Because plaintiffs raised their claim for reimbursement of tutoring expenses at the administrative proceeding in which defendants participated,Sims does not preclude plaintiffs from presenting their claim to this court.
Because no genuine issues of material fact are in dispute, and because plaintiffs adequately exhausted administrative remedies, plaintiffs' motion for summary judgment will be granted. As a matter of law, plaintiffs are entitled to reimbursement for Maya's tutoring services.
CONCLUSION
Plaintiffs have sufficiently exhausted available administrative remedies regarding reimbursement for tutoring expenses, and subject matter jurisdiction over that claim is proper. Accordingly, defendants' motion to dismiss will be denied. No genuine issue of material fact exists, and plaintiffs are entitled to reimbursement by defendants for tutoring expenses under the Hearing Officer's order as a matter of law. Therefore, plaintiffs' motion for summary judgment will be granted. A separate Order accompanies this Memorandum Opinion.