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Hawkins v. Dist. of Columbia

March 7, 2008

KISHA HAWKINS, ON BEHALF OF HER MINOR CHILD, D.C., PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Kisha Hawkins, on behalf of her minor child D.C., brings this action against the District of Columbia pursuant to the Individuals with Disabilities Education Act, as amended, ("IDEA"), 20 U.S.C. §§ 1400 et seq. Plaintiff challenges an adverse administrative decision rejecting her claim that defendant denied D.C. a free appropriate public education by failing to complete the evaluation process to determine if he was eligible for special education services. Currently before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions, the parties' memoranda, the administrative record, the applicable law, and the entire record, and for the reasons set forth below, the Court will grant plaintiff's motion for summary judgment and will deny defendant's cross-motion.

BACKGROUND

I. Statutory and Regulatory Background

Under the IDEA, all states that receive federal educational assistance must establish policies and procedures to ensure that "a free appropriate public education ["FAPE"] is available to all children with disabilities residing in the State . . . ." 20 U.S.C. § 1412(a)(1)(A). A FAPE is provided through the development and implementation of an Individualized Education Program ("IEP") for each such student. The IEP describes the student's present academic level, determines the student's educational goals, and sets out required educational and related services, including the extent of the student's participation in a regular classroom. 20 U.S.C. §§ 1414(d)(1)(A). A student's IEP is developed by a team that includes the student's parents, a regular education teacher, a special education teacher, a representative of the school district, an individual who can interpret evaluation results, personnel with particular knowledge of the student if applicable, and sometimes the student himself. 20 U.S.C. § 1414(d)(1)(B). An IEP team may also be referred to as a multi-disciplinary team. See generally Winkelman v. Parma City Sch. Dist., 550 U.S. ___, 127 S.Ct. 1994, 2000-01 (2007); T.T. v. District of Columbia, 2007 WL 2111032, at *3 (D.D.C. July 23, 2007).

Before a State or local educational agency may commence the initial provision of special education services, it must first determine whether a student is a "child with a disability." A "child with a disability" is a child with a listed disorder or "specific learning disabilities" who, "by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A). The "child find" provisions of the Act require each state to have policies and procedures to ensure that "[a]ll children with disabilities residing in the State . . . who are in need of special education and related services, are identified, located, and evaluated." 20 U.S.C. § 1412(a)(3)(A). Once a child has been referred to an IEP team for an eligibility determination, the IEP team must conduct an "initial evaluation" which "shall consist of procedures (I) to determine whether a child is a child with a disability . . . within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and (II) to determine the educational needs of such child." 20 U.S.C. § 1414(a)(1)(C)(i). The Act requires the local educational agency to:

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parents, that may assist in determining -- whether the child is a child with a disability . . . ;

(B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability . . . ; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

20 U.S.C. § 1414(b)(2). The Act also states that, as part of the initial evaluation, an IEP team shall "review existing evaluation data on the child" and that, "on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine" whether the child is disabled. 20 U.S.C. § 1414(c)(1). Upon completion of the initial evaluation and determination of eligibility for special education, the team either indicates the reasons a student is ineligible or, if eligibility is found, provides a recommendation for an IEP to the parent. D.C. Mun. Regs. tit. 5, §§ 3006, 3007.

If a parent disagrees with the eligibility determination (or the IEP, in the case of a disability finding), he or she has a right to a "due process hearing" before an impartial hearing officer, which shall be conducted by a State or local educational agency. 20 U.S.C. § 1415(f)(1). The hearing officer's determination ("HOD") is a final decision, and any party aggrieved by a HOD may challenge it in a civil action. 20 U.S.C. §§ 1415(i)(1), (2).

II. Factual Background

Plaintiff and her five-year-old son, D.C., reside together in the District of Columbia. Pl.'s Statement of Mat. Facts Not in Dispute ("Pl.'s Statement") ¶ 2. On October 7, 2004, D.C. registered at the Center for Mental Health Head Start ("the Center"), a District of Columbia Public School ("DCPS") provider. Apparently sometime thereafter, a referral was submitted on D.C.'s behalf for an evaluation and determination of whether he was eligible to receive special education services. The underlying referral and compliance with the appropriate regulations has not been challenged. Although this matter has led to four due process hearings and four HODs, DCPS still has not made a determination as to whether D.C. is eligible for special education services under the IDEA.

The first HOD in September 2005 ordered DCPS to convene a student evaluation plan meeting within fifteen days to determine what evaluations of D.C. should be conducted and to thereafter complete those evaluations. Administrative Record ("AR") at 38-40. Among other things, the HOD also required DCPS to convene a team meeting within ten days after the evaluations were completed to review the evaluations and "determine the student's eligibility for special education services." AR at 39. DCPS failed to convene the team as required by the HOD. Pl.'s Statement ΒΆ 5. On December 27, 2005, following another due process hearing, a subsequent HOD was issued, which ordered DCPS to convene a team meeting on or before January 25, ...


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