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R.D. v. District of Columbia

June 14, 2005

R.D., A MINOR BY HIS PARENTS AND NEXT FRIENDS, ISATU KAREEM AND R.D., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA AND DR. CLIFFORD B. JANEY,*FN1 DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This case, brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 etseq., is an appeal of a Hearing Officer Determination ("HOD") affirming the decision of the District of Columbia Public Schools ("DCPS") to place plaintiff R.D. in a part-time special education program at Roosevelt High School. The case is unusual in that the HOD was based not only on the substantive soundness of the placement decision, but also on the Hearing Officer's conclusion that the most recent revision of R.D.'s Individualized Education Program ("IEP") was initiated at the parent's request for the sole purpose of altering R.D.'s placement by increasing his prescribed weekly hours of specialized instruction. Plaintiffs seek placement at Accotink Academy and tuition reimbursement for R.D.'s attendance there since September 2004.

The case came before the Court for argument on the parties' cross-motions for summary judgment on June 3, 2005. For the reasons that follow, the Court grants defendants' motion and denies plaintiffs' motion.*fn2

I. BACKGROUND

R.D. is a learning disabled and emotionally disturbed seventeen year-old DCPS student, represented in this litigation by his mother and next friend, Isatu Kareem. He attended SEED Public Charter School ("SEED") for the 2002-03 and 2003-04 school years. R.D.'s 2003-04 IEP placed him at SEED in a part-time program for 11.5 hours of specialized instruction per week.

An IEP meeting was held on February 10, 2004, for the purposes of (1) reviewing R.D.'s recently-completed Vocational Evaluation; (2) discussing R.D.'s academic, social, and behavioral progress in light of his likely failure of the ninth grade; and (3) developing a new action plan "to better support his unique needs." See February 10, 2004 IEP, A.R. at 82.

At the February 10 meeting a new IEP was developed, which included a Behavior Intervention Plan, short term objectives, and annual goals for R.D.'s social/emotional and academic development. The IEP reclassified R.D. from learning disabled-only to learning disabled/emotionally disturbed. The IEP recommended that R.D. receive 10 hours of specialized academic instruction, one hour of psychological counseling, and 30 minutes of "consultation" per week, for a total of 11.5 hours, and that he be placed in a part-time special education setting, in a "combination general education and resource classroom." Because neither R.D. nor a DCPS placement specialist attended the February 10 IEP meeting, a specific placement was not discussed.*fn3 It was agreed that R.D.'s mother would take him for a psychiatric consultation and SEED would monitor the results of the new BIP, after which the Multidisciplinary Team would reconvene "to discuss [R.D.'s] most appropriate educational program and placement" with R.D. and a DCPS representative present. The IEP was signed by all parties in attendance, including plaintiff's mother and plaintiff's counsel.

After the February 10 IEP was issued, R.D. continued to experience problems at school. His third-quarter grades included five Fs and two C-minuses, and R.D. continued to engage in disruptive behavior and experience emotional difficulties. See A.R. at 48-51.*fn4

Although R.D.'s mother took him to an initial meeting with a psychiatrist, no psychiatric evaluation was completed before the Multidisciplinary Team reconvened.

When the Team reconvened on March 30, 2004, R.D. and Dwight Thomas, a DCPS placement specialist, were in attendance. Mr. Thomas had reviewed the February 10 IEP and, consistent with that IEP, he proposed a placement at Roosevelt Senior High School, R.D.'s neighborhood school. See Defs'. Mot. Summ. J. at 10-11. Roosevelt has part-time special education services but does not offer a full-time program for students with both emotional disturbances and learning disabilities. See Declaration of Jim Marsh ¶ 5, Attachment to Motion for Preliminary Injunction (Oct. 22, 2004).

The parties disagree over what exactly happened at the meeting (although the Hearing Officer made factual findings on that matter), but an IEP was formulated that increased R.D.'s prescribed number of hours of specialized instruction per week from 10 to 30, thus taking R.D. out of the general education curriculum and necessitating his placement in a full-time special education setting. The Hearing Officer subsequently found that even before the March 30 meeting, Accotink had been led to believe that there would be a new IEP that had not yet been prepared or presented. See HOD at 6, A.R. at 7. Accotink accepted R.D. as a student before receiving the March 30 IEP. Despite plaintiffs' protestations, DCPS did not alter its determination to place R.D. at Roosevelt.

Within days, plaintiff's mother requested a due process hearing, which was held on May 5, 2004. In that petition for a hearing, plaintiffs described the problem as follows: "The placement proposed [b]y DCPS cannot address the needs on [R.D.'s] IEP. The parents had proposed a placement, Accotink Academy, that can meet his needs as described by the team and on his IEP." A.R. at 17. At the hearing, DCPS presented the testimony of its placement specialist, Mr. Thomas. Katie Brindley, the SEED special education coordinator, and Anne Warnke, Assistant Educational Director at Accotink Academy, testified for plaintiffs.

Mr. Thomas testified that the March 30 meeting originally was called only to discuss R.D.'s placement on the basis of the already-formulated IEP, but that after plaintiffs learned that DCPS proposed to place R.D. at Roosevelt, the meeting (in the words of the Hearing Officer) "morphed from a placement meeting into an IEP meeting." See HOD at 5, A.R. at 6. Thomas testified further that plaintiffs' counsel objected to the proposed placement during the March 30 meeting, and stated that R.D. needed to be in a full-time therapeutic setting, that plaintiff's mother wanted a placement at Accotink Academy or Foundations (both are private schools), and that unless DCPS agreed to placement at one of those schools, plaintiff would request a due process hearing. According to Thomas, plaintiff's counsel then instructed Ms. Brindley to "redo the IEP to jack up the hours" of specialized instruction called for from 11.5 per week to 30 per week. See Transcript of Due Process Hearing (May 5, 2004) ("Transcr.") at 27. By contrast, Ms. Brindley testified that although she had proposed the change, she could not recall why in the March 30 IEP R.D.'s hours of specialized instruction were increased from 10 to 30, or which Team member sought the increase in hours. See HOD at 5, A.R. at 6.*fn5

Mr. Thomas testified that in his judgment there was no justification for the change to 30 hours of specialized instruction, especially in light of the fact that R.D. only recently had been classified as emotionally disturbed, that the current Behavior Intervention Plan incorporated in the February 10 IEP had been in place only for a short time, and that no new ...


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