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