The opinion of the court was delivered by: Paul L. Friedman United States District Judge
MEMORANDUM OPINION AND ORDER
On December 13, 2007, claimant Hazel Hawkins, parent and next friend of claimant K.R., filed a motion for preliminary injunction requesting that the Court order the defendants to place and fund her son at the Pathways School ("Mot."). The Court referred the motion to the Special Master pursuant to the February 12, 1999 Order of Reference (and paragraph 134 of the Consent Decree entered into by defendants and class counsel on August 24, 2006). The Special Master filed her Report and Recommendations on December 21, 2007 ("Report"). Defendants filed objections to the Report pursuant to Rule 53(f)(2) of the Federal Rules of Civil Procedure on January 10, 2008 ("Obj."). Claimants responded to the defendants' objections on January 17, 2008 ("Resp."). Defendants filed a supplement to their objections, clarifying a factual assertion that was misstated in their objections, on January 22, 2008 ("Supp. Obj."). Pursuant to the Court's Minute Order of January 29, 2008, defendants filed a supplemental report on January 30, 2008 ("Supp. Report").
Upon careful consideration of the entire record herein, the Court will deny claimants' motion for a preliminary injunction requesting that the Court order the defendants to place and fund K.R. at the Pathways School.
The Special Master and the parties agree on the relevant facts, which the Special Master summarized as follows:
K.R. is a seventeen year old student who has been identified as emotionally disturbed. K.R. attended two DCPS schools as a young child and became eligible for special education services in the fourth grade. From fifth grade on, he attended several charter schools. While attending the Barbara Jordan Public Charter School in the spring of 2006, a Multi-Disciplinary Team Meeting ("MDT") was held to review recent evaluations. At the time of that meeting --June 14, 2006 -- K.R. was 16 years, 3 months and was about to enter 9th grade. The evaluation reviewed at that meeting had been conducted at the request of the SEED Charter School to determine whether K.R.'s socio-emotional functioning and attention/behavior control were interfering with his ability to learn. Ten separate measurement tools had been utilized to evaluate K.R. as well as a clinical observation. Based on these evaluations, the MDT participants found that, among other things: a) K.R. had been retained "in grade" three times; b) that he felt angry and helpless; c) that he was angry at his mother for retaining him; d) that these issues needed to be discussed in family therapy; e) that he has poorly developed coping skills; f) that K.R. needed daily behavior contracts; g) that he need a structured school environment with no more [than] 5 students and, [h]) that his school needed to provide weekly updates to parents. Following this meeting, it appears that K.R. was placed at Spingarn Center, a DCPS program for students with emotional disturbances.
Over the course of the 2006-07 school year, K.R. attended the Spingarn Center. In June 2007, an annual Individual Education Program ("IEP") meeting was held. According to his reading instructor, K.R. "has the capacity to be successful, if he would only come to school regularly and on time." Indeed, notes from subject areas teachers are replete with references such as, "student is non-compliant with attendance" and "student had poor attendance." One of the recommendations of the team was that K.R. repeat 9th grade, this time at the age of 17. As will be discussed in some detail below, it appears that at no time during the school year had Spingarn Center developed a behavior plan or provided family counseling, as recommended in the June 2006 meeting.
On June 25, 2007, a due process complaint was filed with the Student Hearing Office ("SHO") by counsel for K.R. alleging that DCPS had failed to provide K.R. with a suitable placement and that Spingarn had failed to implement the requirements of the IEP. A hearing was held on August 29, 2007 and on September 21, 2007, a Hearing Officer Determination ("HOD") was issued. With respect to the appropriateness of the placement at the Spingarn Center, the HOD found that an expert on emotional disturbances attributed K.R.'s absenteeism to his fear for his safety as a result of gang activity near the school. Nevertheless, the HOD did not rule that the Spingarn placement was inappropriate.
Petitioner [K.R.] has not sustained its [sic] burden of proof on the inappropriateness of the placement at the Spingarn Center. The testimony presented indicated that there were problems near the school related to gang activity which made the student fearful to attend class. Ms. Ingram testified that the student never informed her of these concerns. She further testified that on occasion there were reports that the student failed to show for class but he was seen at or near the school's bus stops on school days. Here, the student has not availed himself the opportunity to receive and [sic] educational benefit. There was no sufficient showing that the therapeutic and academic programs at the Spingarn Center were inappropriate. Here, the Petitioner did not show how the placement was inappropriate.
September 21, 2007 HOD at p. 5. However, with respect to implementation of the IEP, the HOD found that K.R. had sustained [his] burden of proof.
In this case, the Petitioner has sustained its [sic] burden of proof on the failure of DCPS to implement the student's IEP. The student has had a history of non compliant behavior and the MDT team devised a plan to address these issues which recommended utilizing behavior contracts and providing family counseling pursuant to the section 34 CFR 300.34(c)(8)(1) which provides parents with counseling to allow them to support the needs of the child. DCPS offered no proof that either of these services were provided. DCPS did show evidence that the student had a pattern of absences and also DCPS provided offered [sic] testimony that the student's parent was informed of this problems [sic] but made excuses. Here the parent's denial of the student's non-conforming conduct should have been met with an opportunity for parental training and counseling. IDEIA mandates and requires a local educational agency (LEA) comply with regulations to provide related services for an eligible disabled student and parents in need of counseling and training. In the facts and circumstances here DCPS has denied this student free and appropriate public education.
September 21, 2007 HOD at p. 5.
As a result of this finding, the HOD ordered DCPS to convene an MDT/IEP meeting within ten (10) school days to "review all current evaluations, review and revise the student's IEP and discuss and develop plans to implement all related services. The team can also discuss placement if warranted."
That meeting was never scheduled and it is the position of the staff at the Spingarn Center that they did not receive the September 21 HOD or any instructions alerting them to the need for a meeting. Meanwhile, K.R. did not, and apparently has not, attended school at all this year. Two days after the window in which Spingarn Center was directed to convene a meeting, counsel for K.R. filed a Motion with the Student Hearing Office seeking a "directed placement" at a private program. Briefs were submitted by both DCPS and counsel for K.R. on the matter in late ...