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DIATTA v. DISTRICT OF COEUMBIA

June 1, 2004.

EIBERATA DIATTA, et al., Plaintiffs,
v.
DISTRICT OF COEUMBIA, et al., Defendants



The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge

MEMORANDUM OPINION

Before the Court is the Plaintiffs' Motion for Summary Judgment [17], the Defendants' Motion for Summary Judgment [18], and the Plaintiffs' Motion for Preliminary Injunction [9].

Upon consideration of the motion papers, the applicable law and the record in this case, the Court will grant the Plaintiffs' Motion for Summary Judgment [17], deny the Defendants' Motion for Summary Judgment [18], and deny as moot the Plaintiffs' Motion for Preliminary Injunction [9].

  BACKGROUND

  Pursuant to the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. § 1400 et seq., the plaintiffs filed the instant action on December 30, 2003, appealing from a hearing officer's determination.

  At issue is the education of Alex Keita, an autistic child currently attending Barnard Elementary School in Washington, D.C. Alex, born May 20, 1997, lives with his mother, Eiberata Diatta, in the District of Columbia. At about one year of age, Alex began to exhibit autistic symptoms, including loss of language, decreased interest in social interaction and disruptive behavior. In the Fall of 1999, Alex's Head Start teacher became concerned about his lack of participation in class, listlessness and language delays, and referred Alex for psychological evaluation. Dr. Sheryl Frank evaluated Alex between December 1999 and March 2000, and issued a report diagnosing him with a form of autism recognized under the IDEA. Dr. Frank's diagnosis was later confirmed by evaluations requested by the District of Columbia Public Schools ("DCPS") Early Intervention Program and performed at Children's Hospital National Medical Center. All who evaluated Alex agreed that his condition required a therapeutic preschool program that included language enrichment, a low student-teacher ratio, and teachers trained to handle children with autism. The report of a Dr. Penny Glass directed Alex to attend the National Child Daycare Center in D.C. when he turned three years of age, and that DCPS develop an "individualized education program" ("IEP") as soon as arrangements were made at the National Child Daycare Center. DCPS held a meeting to plan for Alex's education on June 27, 2000. However, it is unclear whether anyone from the Early Intervention Program was present at the meeting.

  On July 19, 2000, Ms. Diatta enrolled Alex in the Head Start program at his neighborhood school, and although she provided the required health forms in July 2000, Alex was not observed again until October 2000 when a DCPS psychologist, Grace Chen, evaluated him. Dr. Chen's evaluation of Alex referenced Dr. Frank's report and diagnosis, but concluded that "Alex presented as a youngster with significant developmental delays." DCPS developed an IEP for Alex on November 20, 2000. However, the November 2000 IEP classified Alex as speech language impaired despite the confirmed diagnosis of Dr. Frank, and, therefore, the IEP did not include a behavior management program. Subsequent IEP's developed in 2001, 2002 and 2003 also failed to include behavior management plans even though Alex continued to exhibit the behaviors symptomatic of autism that lead to his initial evaluation and diagnosis in 1999. Alex remained in the Head Start program until DCPS transferred him to Hyde Elementary School in September 2001 where he remained until the Summer of 2003. In the Summer of 2003, Alex was placed at Barnard Elementary School, which did not have an autism program until September 2003. When the autism program at Barnard Elementary School began in September 2003, Alex was placed in the program where he remains to this day.

  Three administrative hearings were held in October and November of 2003. On Alex's behalf, the plaintiffs offered the testimony of Carol A. Kamara, Ph.D., Speech-Language Pathologist, Patricia Gates Ulanet, Child Clinical Psychologist at Children's National Medical Center, Sheila C. Iseman, Student Education Advocate, and Ms. Diatta, Alex's mother. The three expert witnesses testified that Alex should have been in full-time therapeutic placement as prescribed by Dr. Frank in 1999 and 2000; that the 2001, 2002, and 2003 lEPs were inappropriate for lack of behavior management programs; that behavior management programs were essential to Alex's education; that failure to provide behavior management programs exacerbated Alex's conditions and "interfering" behaviors; that Alex had made no progress in the last three years; and that the longer that Alex is denied an appropriate education program the worse his behaviors will become, increasing the likelihood that he will need to be placed at a residential treatment facility. Plaintiffs' expert witnesses also testified that Alex now needs an intensive forty hours per week, fifty-two weeks per year Applied Behavior Analysis ("ABA") program provided in school and at home by specially trained individuals. The defendants maintained that Alex's placement and program at Barnard Elementary School was appropriate. They presented the testimony of Anna Bowman, DCPS Clinical Social Worker, Susan Ford Robinson, DCPS Speech-Language Pathologist, Anne Jenkins, Hyde Elementary School Principal, Gerald Hirai, Hyde ES Special Education Teacher, and Karen D. Griffin, DCPS Acting Executive Director of Programs Unit. The defendants presented no witnesses from Barnard Elementary School to testify about its new autism program or Alex's progress in it.

  On December 2, 2003, the hearing officer issued findings and a determination. The HO found that: (1) "DCPS did not comply with the IDEA and denied Alex a [Free and Appropriate Public Education] when it failed to provide him an appropriate disability classification, IEP, placement and [Extended School Year Services]"; (2) Alex had been denied FAPE during the 2001-2002, 2002-2003, 2003-2004 school years and the 2003 summer session; (3) compensatory relief was due only from November 20, 2000, and made no findings regarding the period from May 20, 2000 through November 20, 2000; (4) Alex's current placement at Barnard Elementary School was inappropriate, did not meet Alex's needs and must be changed because "[b]ased on the testimony of all DCPS witnesses, there is no record evidence that Alex's [current] teacher and Dedicated Aide are trained in Autism. Nor is there any record evidence that Barnard ES has or can implement Alex's current IEP" and because "DCPS failed to provide any record evidence that the education provided Alex at Barnard ES is reasonably calculated to enable him to receive educational benefit."

  However, after making the aforementioned findings and being presented with unrefuted testimony from the plaintiffs' expert witnesses that ABA is the only therapy that can effectively address Alex's exacerbated autistic disorder, the hearing officer found the compensatory education requested by the plaintiffs "beyond the reach of the IDEA," and declined to order the defendants to pay for three years of ABA, finding that he lacked authority, under Henrick Hudson Dist Bd. Of Educ. v. Rowely, 458 U.S. 176, 200 (1982), to implement the ABA plan requested by the plaintiffs. The hearing officer then instructed the defendants' employees to hold a meeting by January 15, 2004 to revise Alex's IEP, propose placement, and "decide the amount and means of delivering the [c]ompensatory [e]ducation award." On January 16, 2004, the defendants reassigned Alex to the Barnard Elementary School program that the hearing officer had determined to be inappropriate and a denial of FAPE in violation of the Act.

  The plaintiffs move the Court for summary judgment, maintaining that the hearing officer improperly denied Alex the compensatory education that he needs, improperly limited the period for accrual during which Alex was denied FAPE, and unlawfully delegated his authority to determine appropriate relief to employees of the defendants. Plaintiffs move this Court to reverse the hearing officer's determination and order the defendants to pay for the one-on-one ABA program within 30 days of the submission of any and all invoices from the providers of ABA training, consultation and monitoring, including costs for the initial creation of an ABA program for Alex, periodic review and adjustment of that program, seminars for training therapists and Ms. Diatta, and the fees charged by the therapist for training, follow-up seminars and meetings, and direct provision to Alex of one-on-one ABA service therapy for 40 hours per week and any other reasonable costs and fees that are necessary for the provision of these services.

  The defendants oppose the plaintiffs' motion and cross-move for summary judgment, maintaining that the plaintiffs are not aggrieved parties under the statute, and, therefore, may not maintain an action under the IDEA. The defendants also maintain that the plaintiff parent cannot demand a specific educational methodology, that the hearing officer's delegation to the Bi-Level Multi-disciplinary Team was not improper under the Act, and that his finding that compensatory education should accrue from November 20, 2000 was reasonable.

  ...


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