The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Claim of Linda and Brenda Gibson, Surrogate parent for educational Purposes of S.J.
This matter arises from the failure of the District of Columbia Public Schools ("DCPS") to provide a special education student with a timely due process hearing and decision, and the motion of the student and his guardians ad litem for a preliminary injunction requiring DCPS to place the student at a private school providing special education services that they maintain are necessary. For the reasons stated, the Court grants plaintiffs' motion.
Plaintiff S.J. is a seven-year-old DCPS student with multiple cognitive and emotional difficulties as well as medical disabilities including neurofibromatosis, hypertension, and scoliosis. He is currently enrolled at Miner Elementary School in the District of Columbia. On February 4, 2005, S.J.'s guardians ad litem, Brenda and Linda Gibson, requested by letter that DCPS conduct a due process hearing, as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et. seq., to evaluate S.J.'s current Individualized Education Plan ("IEP"). They argued that S.J.'s IEP was inappropriate for several reasons, including its failure to consider his need for physical or occupational therapy and its inadequate provision of speech and language services. See Report and Recommendations of the Special Master (July 7, 2005) ("R&R") at 2-3. The letter did not ask for a hearing of any specific duration.
Federal IDEA regulations require that a final decision be reached and a copy of the decision mailed to all parties within 45 days of the receipt of a request for a due process hearing. See 34 C.F.R. § 300.511(a). In order to meet the 45 day requirement, District of Columbia regulations require DCPS to convene a hearing within 35 days of a request and to issue a written decision within 10 days of the hearing. See D.C. Mun. Regs. Tit. 5, § 3021.5.*fn1 In this case, a due process hearing was scheduled for March 16, 2005, 40 days after the initial request. Five days before the hearing date, the parties disclosed their exhibits and witness lists. Plaintiffs identified nine witnesses they wished to present and DCPS identified twelve. See R&R at 4.
The hearing began on March 16, 2005. All present acknowledged that two hours would be insufficient to present all the witnesses identified, and plaintiff's counsel agreed to a continuance of the hearing. The Hearing Officer ("HO") scheduled another hearing for April 25, 2005, 40 days after the first hearing, stating that this was the first full day available for the HO and/or DCPS representative. Plaintiffs' counsel stated that such a long continuance would be prejudicial to S.J. On March 16 the HO issued an interim order continuing the hearing "sua sponte" until April 25, stating that "The number of witnesses required more than the 2-hour time slot schedule [sic] by the parents," and that "The 45-day time limit, . . . pursuant 34 C.F.R. § 300.511(a)(1), is waived." Interim Order (March 16, 2005).
On April 25, 2005, an all-day hearing was conducted at which DCPS presented three witnesses and plaintiff put on one. To accommodate additional testimony, the parties agreed to continue the hearing until June 3, 2005, 39 days after the April 25 hearing and 119 days after the initial request, on which date a four-hour hearing was scheduled. This extension was embodied in another Interim Order issued on April 25, 2005. Three days later, the HO issued an Amended Interim Order changing the scheduled date from June 3 to June 8, 2005, without stating any reason for the change. See Interim Order (April 28, 2005). The HO appears not to have consulted the parties before making this change.
A further Interim Order was issued on May 2, 2005, reiterating the schedule change and again stating that the 45-day time limit had been waived. See Interim Order (May 2, 2005). The Interim Order also directed the parties to file a joint status report regarding an independent speech and language evaluation to have been conducted for S.J. DCPS filed no status memorandum; plaintiffs' memorandum, filed May 11, 2005, objected specifically to the repeated continuances of the hearing. See R&R at 8.
On May 31, 2005, more than a month after the June 8 date was set, DCPS filed a request for a continuance on the grounds that the DCPS attorney assigned to S.J.'s case would "be training DCPS personnel at a mandatory training session" on that date. See R&R at 9. DCPS suggested June 10, 13, or 14 as alternative hearing dates. Plaintiffs strenuously objected to an extension on several grounds. First, they claimed that the prior extension had been necessitated by the HO's decision to allow DCPS at the April 25 hearing to introduce evidence of a new IEP (formulated in April 2005), in violation of the HO's own prior order that the parties' 5-day disclosures were not to be amended. Plaintiffs stated that this "completely shifted the issues to be addressed in the hearing. Thus, an inordinate amount of time was spent arguing and cross-examining witnesses about the improperly submitted IEP." R&R at 9. As a result, plaintiffs were able to present only one witness at the April 25 hearing. Plaintiffs argued that any further continuance would inflict additional harm on S.J., who, plaintiffs argued, "has an inappropriate IEP and is placed in an inappropriate school." Id. Finally, plaintiffs stated that even the brief delay asked for by DCPS was unacceptable because plaintiffs' expert witnesses could not be rescheduled on such short notice.
In an Interim Order issued on June 3, 2005, the HO granted DCPS' request on two grounds: (1) "The reason given by DCPS for the continuance," and (2) "To retain assigned counsel since 9-hours of testimony is completed." Interim Order (June 3, 2005). The HO, however, did not grant the brief continuance requested by DCPS, but rescheduled the hearing for July 11, 2005 -- a month after the dates requested by DCPS, 77 days after the prior hearing, and 157 days after the plaintiffs' initial request for a due process hearing.
On June 15, 2005, plaintiffs filed a motion for preliminary injunction in this Court, asking for S.J.'s placement at Accotink Academy starting July 5, 2005 and for compensatory education from February 1, 2004 until the issuance of an injunction. The motion was referred to Special Master Elise Baach, who issued her Report and Recommendations on July 7, 2005. The Report and Recommendations concluded that plaintiffs were members of the Blackman subclass and that a preliminary injunction was warranted.*fn2 The Special Master did not decide whether plaintiffs also were members of the Jones subclass (because of DCPS' alleged failure to implement portions of the HO's Interim Orders), but recommended that the Court direct further briefing on that issue by the parties.
Plaintiffs filed a motion to adopt the Special Master's Report and Recommendations on July 27, 2005. DCPS, after requesting a 4-day extension of time, filed its objections to the Report and Recommendations on July 29, 2005. For the reasons stated below, the Court adopts the Special Master's Report and ...