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A.I. v. DISTRICT OF COLUMBIA

September 19, 2005.

A.I., a minor, by her parents and next friends, Rosemary & Michael Iapalucci, and ROSEMARY & MICHAEL IAPALUCCI, Plaintiffs,
v.
DISTRICT OF COLUMBIA, and ROBERT C. RICE, in his official capacity as Interim Superintendent of the District of Columbia Public Schools, Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

Plaintiffs Rosemary and Michael Iapalucci, on behalf of their minor daughter, A.I., and in their own right, brought this action under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et. seq., against Defendants, the District of Columbia and Robert C. Rice, in his official capacity as Interim Superintendent of the District of Columbia Public Schools. The IDEA provides that all children with disabilities will be provided a free and appropriate public education ("FAPE"), and provides for procedural safeguards to ensure that disabled children receive individualized education programs ("IEP") to fulfill the Act's goals. This case comes to the Court on appeal from the April 21, 2004 Hearing Officer Determination ("H.O.D.") and related proceedings.

Currently before the Court are Plaintiffs' Motion for Summary Judgment ("Pls.' Summ. J."), Defendants' Opposition to Plaintiffs' Motion for Summary Judgment ("Defs.' Opp'n"), Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment (Pls.' Reply), Defendants' Motion for Summary Judgment ("Defs.' Summ. J."), Plaintiffs' Opposition to Defendants' Motion for Summary Judgment ("Pls.' Opp'n") and Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment ("Defs.' Reply"). Upon a searching examination of the present filings, the relevant case law, and the entire record herein, the Court shall deny Plaintiffs' Motion for Summary Judgment and shall grant Defendants' Motion for Summary Judgment.

  I: BACKGROUND

  A.I. is thirteen-year old child*fn1 who has been coded by the District of Columbia Public Schools (DCPS) with "Multiple Disabilities," which includes a Speech-Language Impairment, a Learning Disability, and an Other Health Impairment, and has been found to be in need of special education. Compl. ¶ 7; Plaintiffs' Statement of Undisputed Facts ("Pls.' Facts") ¶ 4. A.I. was adopted by Rosemary and Michael Iapalucci when she five years and nine months old from an orphanage in Kazakhstan. Compl. ¶ 6; Pls.' Facts ¶ 2; R. at 56. Upon adoption, the Iapaluccis enrolled A.I. in pre-Kindergarten at Janney Elementary School ("Janney"), their neighborhood elementary school in the District of Columbia. 4/2/2004 Tr. at 179. Because A.I. was almost six-years old at this time, pre-Kindergarten was a year behind her grade level. Id. Mrs. Iapalucci testified that upon enrollment she and Mr. Iapalucci immediately requested speech therapy. Id. When none was provided by the school, they obtained outside therapy at their own cost. Id. At the end of A.I.'s Kindergarten year, her teacher recommended more testing. Id. In response to this recommendation, Gabrielle Grunau, a DCPS School Psychologist, conducted a psychological evaluation of A.I. on May 19, 1999, and determined that "[a]t this time, [A.I.] does not meet the criteria as a Learning Disabled student, and therefore, is not considered multiply handicapped. She is Speech Impaired." Pls' Summ. J., Ex. 1 at 6. The Iapaluccis again requested testing when A.I. was in second grade because she continued to have difficulties in the classroom. Pls.' Summ. J. at 6; 4/2/2004 Tr. at 179.

  Concerned about the level of difficulty A.I. was having completing her homework, the Iapaluccis sought an outside neuropsychological evaluation by Dr. Patricia Papero when A.I. was in fourth grade. 4/2/2004 Tr. at 179; R. at 56. Dr. Papero observed and tested A.I. on three occasions from October 25, 2002 through October 31, 2002. R. at 56. Dr. Papero concluded that A.I. should be classified by the DCPS as having an Other Health Impairment, a Learning Disability, and Speech/Language Disorder. R. at 69. Furthermore, Dr. Papero suggested that "[m]ore intensive intervention must be put in place as possible in order for [A.I.] to have a chance of making a better rate of progress" and recommended that the Iapaluccis consider placing A.I. in a "self-contained language-based learning program." R. at 70. She also recommended that the Iapaluccis seek a comprehensive speech/language evaluation. R. at 72.

  On December 12, 2002, the Iapaluccis had A.I. evaluated by Lisa Washington, a speech pathologist with the University of the District of Columbia. R. at 45. Ms. Washington agreed with Dr. Papero's conclusion that A.I. would benefit from "an educational program that could more fully integrate language and learning strategies into the classroom curriculum." R. at 50; Defs.' Statement of Material Facts as to Which There is No Dispute ("Defs.' Facts") ¶ 4(3).*fn2 H.O.D. at 6-7, R. at 101.

  The Iapaluccis subsequently provided both Ms. Washington's and Dr. Papero's reports to the DCPS. On January 24, 2003, Dr. Belton Wilder — a clinical psychologist contracted by the DCPS — conducted a review of Dr. Papero's evaluation. R. at 51. In large part, Dr. Wilder's conclusions did not differ from those of Dr. Papero, and Dr. Wilder agreed that A.I. would require educational accommodations for her weaknesses. R. at 54. During this same time period, on January 17, 2003, the DCPS conducted an occupational therapy ("OT") evaluation of A.I., wherein the therapist, Amanda Farber, OTR/L, found that A.I. "demonstrates average visual motor skills and very strong visual perceptual skills. She demonstrates decreased speed when performing fine motor coordination and manipulation skills although she has fair accuracy when provided increased time." R. at 196. The OT evaluation concluded that A.I. did not require special education OT services, but did recommend: (1) that A.I. be provided a pencil grip to "improve comfort and pressure of grasp," (2) participation in extracurricular activities to improve balance and gross motor skills, (3) visual aids "to enhance learning secondary to her strong visual perceptual and visual memory skills," and (4) additional time to complete tasks with fine motor components. R. at 197-97.

  As a result of the testing, DCPS convened a Multidisciplinary Team ("MDT")/IEP meeting on March 18, 2003, in order to develop a strategy to cope with A.I.'s disabilities. Pls.' Summ. J. at 8; R. at 147. While they attended and participated in the meeting, the Iapaluccis were ultimately dissatisfied with the number of hours of special education recommended in the resulting IEP — approximately 9.5 hours/week*fn3 — and refused to signed the IEP. Compl. ¶ 15, 4/2/2004 Tr. at 182. According to the Iapaluccis, the IEP also failed (1) to include A.I.'s present levels of educational performance in the classroom, (2) identify appropriate goals and objectives by not specifying the goals and objectives that she had not previously mastered, (3) address her OT-based needs, (4) list any classroom accommodations, and (5) place her in a situation where she was provided a low student-teacher ratio for large periods of time. See Pls.' Facts ¶¶ 19-22. Despite these objections, A.I. received these services provided for in her IEP for the remainder of the 2002-2003 school year at Janney. 4/2/2004 Tr. at 140; Pls.' Summ. J. at 9.

  On June 11, 2003, a MDT/IEP meeting was held in order to review A.I.'s IEP, to examine her progress, and to discuss A.I.'s IEP for the 2003-2004 school year. The Iapaluccis once again attended and expressed their concern that the proposed IEP would not provide A.I. with enough support for her to make progress. R. at 202. It was their impression, based on the recommendations of the experts, that A.I. should be receiving more of her education in a special education setting, rather than in a regular classroom setting. R. at 203. The minutes of the IEP meeting reflect that the Iapaluccis agreed with the goals of the IEP but rejected (1) the level of service being offered and (2) Janney Elementary School ("Janney") as a placement for A.I. Furthermore, they opined that certain goals should have been included in the IEP but wrongly were omitted. R. at 203. Despite these concerns, the IEP team concluded that mainstreaming A.I. would have educational benefit and declined to modify the IEP to provide her with more time out of the classroom in special education.*fn4 R. at 209. On June 24, 2003, the Iapaluccis informed Janney that they had decided to enroll A.I. in "a non-public special education setting" and that "[t]hey do not believe that [A.I.] would be expected to make meaningful educational progress in the program and placement proposed through the recent IEP process." R. at 76. The Iapaluccis settled on Kingsbury Day School ("Kingsbury"), a private school in Washington, D.C., that offers special education services for children with language disorders, learning disabilities, and social/emotional disorders, and enrolled A.I. in school there for the 2003-2004 school year. Compl. 16-17; R. at 76. By all accounts, A.I. has been successful in this placement, wherein she is enrolled in a class of ten students, as opposed to twenty-five, and can now complete her homework independently. R. at 103 (H.O.D.); Pls. Summ. J. at 10; 4/2/2004 Tr. at 139, 154, 183.

  On November 4, 2003, the Iapaluccis attended an IEP meeting at Kingsbury intended to develop a new IEP for A.I. for the 2003-2004 school year there. R. at 94. The IEP that was developed by Kingsbury included one-hour and fifteen-minutes of speech and language therapy each week. R. at 77. The IEP noted that A.I. needed small group instruction and one-on-one support and that putting her in the least restrictive placement "will result in loss of self esteem as [a] competent learner." R. at 93. The IEP developed by Kingsbury placed A.I. at Kingsbury for the 2003-2004 school year, R. at 93, and Mr. Iapalucci signed the IEP indicating that he, as A.I.'s parent, agreed with the IEP. R. at 77. On November 13, 2003, the Iapaluccis filed a request with the DCPS for a due process hearing seeking funding and placement at Kingsbury and alleging that "DCPS failed to develop an appropriate IEP [and] placement for [A.I.]." R. at 6.

  The hearing was scheduled for December 12, 2003, and was presided over by Terry Michael Banks, an independent hearing officer. Pls.' Facts ¶ 30. Due to the number of witnesses and the late hearing time, the hearing had to be continued to a date agreed upon by both counsel for Plaintiffs and Defendants. 12/12/03 Tr. at 115-16. On February 17, 2004, Plaintiffs' counsel requested the Student Hearing Office to set a date for reconvening the hearing, stating that as of February 17, 2004, there had been no date proposed to him for a hearing. R. at 114. On March 11, 2004, the Student Hearing Office informed counsel for both parties that a date had been set to reconvene on March 26, 2004. R. at 142. Plaintiffs' counsel requested a continuance and Hearing Officer Banks granted the unopposed motion and set the hearing for April 2, 2004. R. at 109-11. At the April 2, 2004 hearing, Hearing Officer Banks denied Plaintiffs' motion for relief based upon failure to conform to the 45-day procedural time limit required by 34 C.F.R § 300.511(a) on conducting due process hearings and rendering a final decision on the due process petition because he found "[t]here has been no effort between counsel to set a date" despite their agreement to do so at the December 12, 2003 hearing. 4/2/2004 Tr. at 17.

  In the April 21, 2004 H.O.D. resulting from the December 12, 2003 and April 2, 2004 hearings, Hearing Officer Banks concluded that DCPS had met its burden of proving the IEP for placement at Janney was appropriate for A.I. R. at 103 (H.O.D.). The decision of the IEP Team for A.I. to receive her education principally in the regular classroom was determined to be reasonable in light of testimony by A.I.'s teachers that she was benefitting from interacting with children who were not disabled. R. at 104 (H.O.D.). Hearing Officer Banks further concluded that while the testimony of Mrs. Iapalucci regarding the progress A.I. made at Kingsbury was credible, DCPS had "provided [A.I.] with the education benefit as required by IDEA." R. at 105 (H.O.D.). According to Hearing Officer Banks, "DCPS is obligated only to provide educational benefit to [A.I.], not maximize her educational experience." Id.

  In contesting the H.O.D., Plaintiffs' Complaint alleges three central claims. Compl. ¶¶ 49-59. First, Plaintiffs charge that Defendants failed to provide A.I. with a free appropriate public education and due process of law. Second, Plaintiffs charge that Defendants failed to place and fund A.I. at Kingsbury for the 2003-2004 school year. Third, Plaintiffs charge that Hearing Officer Banks erroneously denied reimbursement of the Kingsbury tuition costs to the Iapaluccis. Defendants, in addition to contesting the claims made by Plaintiffs, contend in response: (1) Plaintiffs are not entitled to private school tuition reimbursement where a public school was appropriate, and where the parents were given a chance to have their objections to the IEP heard; (2) the Iapalucci's failure to cooperate with the DCPS ensured that they forfeited any right to reimbursement; (3) the parents' failure to provide notice that would permit the IEP team to address their concerns with Janney nullified their right to reimbursement for private school tuition; and (4) Plaintiffs' interest in a private school placement should have been expressed at the MDT/IEP meeting before the unilateral withdrawal of A.I from Janney. See Defs.' Summ. J. at 18-25. II: STATUTORY FRAMEWORK

  The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"] that emphasizes special education and related services designed to meet their unique needs. . . ." 20 U.S.C. § 1400(d)(1)(A). "Implicit" in the IDEA's guarantee "is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("Rowley").

  As a condition of funding under the IDEA, the Act requires school districts to adopt procedures to ensure appropriate educational placement of disabled students. See 20 U.S.C. § 1413. School districts must also develop comprehensive plans for meeting the special educational needs of disabled students. See 20 U.S.C. § 1414(d)(2)(A). These plans, known as individualized education plans, or IEPs, must

 
include a written statement of evaluation and plan of action that sets forth the child's present level of educational performance, measurable goals, including benchmarks or short-term objectives, special education and related services to be provided to the child and program modifications or supports for school personnel that will be provided to the child, the child's ability to interact with non-disabled children, a statement of administrative modification, the projected date for the beginning of services, and the anticipated frequency, location and duration of those services, and how the child's progress ...

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