The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on the defendants' Motion  to Dismiss. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be denied. Also pending before this Court with regard to the instant motion are Plaintiffs' Motion  to Strike Defendants' Supplement to their Reply and Plaintiffs' Consent Motion  to File a Sur-reply. For the reasons set forth below, plaintiffs' motion to strike will be granted, and plaintiffs' motion to file a surreply will be denied as moot.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court must dismiss claims over which it has no subject matter jurisdiction. In evaluating whether it has subject matter jurisdiction, the court must construe the complaint liberally, and give the plaintiff the benefit of all reasonable inferences. See Tozzi v. EPA, 148 F. Supp. 2d 35, 41 (D.D.C. 2001) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). Under 12(b)(1), the plaintiffs bear the burden of establishing that the court has jurisdiction. In accordance with this governing standard, the Court will credit as true the factual allegations in the plaintiffs' amended complaint, which are set forth in the "Background" section, below.
In this case, plaintiffs challenge defendants' policy, pattern and practice of failing to identify, locate, evaluate and offer special education and related services to children in the District of Columbia who are between the ages of three and five years old. Named plaintiffs are children with sensory, emotional, physical, cognitive or language disabilities who would like to obtain special education and related services from the District of Columbia Public Schools ("DCPS") as preschool children, but allegedly have been denied, delayed or otherwise deprived of access to these services because of defendants' systemic failures to comply with federal and District of Columbia law. (Am. Compl. 2-3.)
Under federal law, District of Columbia Public Schools ("DCPS") must provide children with disabilities the same service they provide to other children: a free and appropriate public education ("FAPE"). Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400 et seq. (1970) ("IDEA"), amended by Pub. L. No. 108-446, 118 Stat. 2647 (2004). The laws also require the District of Columbia to identify, locate, evaluate and offer special education and related services to all children with disabilities who need them, including to preschool children. 20 U.S.C. 1412(a)(3)(A); 34 C.F.R. 300.125; 5 DCMR 3002.3.
The duty to "identify, locate, and evaluate" is also known as the "Child Find" duty and has long been a core component of the IDEA. The Child Find duty mandates that defendants take affirmative steps to ensure that children with disabilities in the District of Columbia are "found" and are given the opportunity to enter the special education system and receive special education and related services.
This case revolves around the education of seven young children. Plaintiffs allege the following.
(1) DL is a five-year-old boy who suffers from a disability that would qualify him for special education and related services under the IDEA. (See Am. Compl. ¶¶ 6-7.) He exhibits behavioral and emotional problems, as well as speech and language delays. Plaintiffs allege that defendants have known that DL may have a qualifying disability since at least June 2004 and have failed to evaluate him or offer him special education and related services. (Id. at ¶ 7.) In June 2005, DL's guardian ad litem requested a due process hearing to challenge DCPS's failure to evaluate or offer special education services to DL. (Id. at ¶ 14.) Due process hearings were held in DL's case in September and October 2005 regarding defendants' Child Find failures and the Hearing Officer ordered DCPS to provide compensatory education for DL. (Id. at ¶ 17.) DL remains at Moten Elementary School on an interim basis and is receiving some services. (Id. at ¶ 18.) DL has exhausted his administrative remedies.
(2) XY is a four-year-old boy who is suffers from Autism Spectrum Disorder, which was diagnosed in May 2005. (See Id. ¶¶ 19.) Plaintiffs allege that defendants have failed repeatedly to comply with the Child Find and FAPE requirements for XY. (Id. at ¶ 21.) In February and March 2006, two due process hearings were held for XY. (Id. at ¶ 25.) The hearing officer determined that defendants had violated the Child Find and FAPE provisions by failing to identify, locate, evaluate, and offer XY special education services within the time frames mandated by federal and District of Columbia law. (Id.) The judge issued a written decision that ordered DCPS immediately to evaluate XY, develop an appropriate IEP, and offer an appropriate placement. (Id.) The judge also ordered immediate relief, including compensatory education. (Id.) Because DCPS subsequently had failed to develop an appropriate IEP or offer an appropriate placement, the parties appeared for a third due process hearing on July 17, 2006. (Id. at ¶ 26.) The Hearing Officer ruled in favor of the parents during the hearing and DCPS has not yet complied with this decision. XY and his parents have exhausted their administrative remedies. (Id.)
(3) HW is a six-year-old disabled girl who has speech and language delays which impair her ability to participate in the classroom and communicate with others. (See Id. ¶¶ 27-28.) Since January 2005, HW has requested that DCPS comply with the Child Find requirements and identify, locate, evaluate, and offer HW special education and related services. (Id. at ¶ 29.) Plaintiffs allege that DCPS completed referral forms for HW in March 2005, but since then, has failed to screen HW, evaluate her, determine her eligibility, convene an IEP meeting, or offer an appropriate educational placement. (Id.) HW's parents have waited one and a half years for DCPS to comply with its Child Find requirements are still waiting for DCPS to comply with the Child Find requirements and to evaluate HW, determine her eligibility, develop an IEP, and offer her an appropriate placement. (Id. at ¶ 30.)
(4) TL is a three year-old disabled boy diagnosed with a disorder of the vestibular system, including an underlying sensory integration and listening disorder, motor apraxia, and a profile consistent with Autism Spectrum Disorder. (See Id. at ¶ 31.) Plaintiffs allege that DCPS has failed to comply with the Child Find and FAPE requirements. (Id. at ¶ 33.) On July 27, 2006, DCPS found TL eligible for special education services. DCPS wrote an IEP for TL but offered a program that is overly restrictive. (Id. at ¶ 38.) TL and his parents are still waiting for an appropriate IEP and educational placement. (Id.)
(5) JB is a six-year-old boy who was diagnosed with autism in January of 2004. Plaintiff claims that defendants failed to offer him any special education services during the 2004-2005 and 2005-2006 school years. (Id. at ¶ ¶ 39-40.) From 2002 to 2004, JB's mother tried to place JB in several private preschools in the District of Columbia but was forced to withdraw him as a result of his behavioral problems. (Id. at ¶ 43.) Ultimately, DCPS performed an occupational therapy evaluation for JB and drafted an Individual Education Plan ("IEP"). The IEP included a full-time special education program with small classes, two hours of speech language therapy weekly, and three 30-minute sessions of occupational therapy weekly. (Id. at ¶ 50.) Plaintiffs allege that DCPS did not timely implement JB's IEP or offer an educational placement for the 2004 - 2005 school year until August 2005, 17 months after JB's mother requested these services. JB attended private childcare at his mother's expense during this time. (Id. at ¶ 51.) In May 2006, DCPS offered JB's parents a compensatory education proposal for the 2004-2005 school year; the parties are in discussions regarding this proposal. (Id. at 52.)
(6) FD is a three-year-old boy who was born prematurely, at 29 weeks. (Id. at ¶¶ 54-55.) He was diagnosed with end stage renal disease, which resulted in a kidney transplant on March 31, 2004. (Id.) As a result of his premature birth, FD also suffers from a number of other medical conditions, including Prune Belly Syndrome, spastic diplegia, and developmental delay. (Id.) FD exhibits significant delays in gross and fine motor skills and visual motor skills. His visual-perceptual skills, problem-solving skills, and communication skills are also delayed. FD uses a ...