The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs D.W., a minor, and his mother, Carrie Wilkins, have brought this action against the District of Columbia (the "District"), pursuant to the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), 20 U.S.C. §§ 1400 et. seq. Plaintiffs appeal from an adverse administrative decision rejecting their claim that the District violated the IDEIA by failing to provide D.W. with a free appropriate public education ("FAPE"). Presently before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, the Court will deny plaintiffs' summary judgment motion and will grant defendant's cross-motion.
I. Statutory and Regulatory Background
In order to receive federal funds for education, a state must ensure that "a free appropriate public education 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 Individual Education Program ("IEP") for each student. See generally Winkelman v. Parma City Sch. Dist., 550 U.S. --, 127 S.Ct. 1994, 2000-01 (2007). 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); 34 C.F.R. § 300.320(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 herself.
20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a). In this case, the analogous group convened to develop D.W's IEP is known as the multi-disciplinary team ("MDT").
Once developed, the IEP is then implemented through appropriate placement in an educational setting suited to the student's needs. See Roark ex rel. Roark v. Dist. of Columbia, 460 F. Supp. 2d 32, 35 (D.D.C. 2006). The IDEIA requires that the parents of a student with a disability be members of any group making a decision regarding the student's placement. 20 U.S.C. § 1414(e); 34 C.F.R. § 300.327. The placement decision, in addition to conforming to a student's IEP, should also consider the least restrictive environment and a setting closest to the student's home. 34 C.F.R. § 300.116(a), (b).
A parent dissatisfied with the IEP developed for his or her child has a right to a due process hearing conducted by the state or local education agency before an impartial hearing officer. 20 U.S.C. § 1415(f)(1), (3). The decision of the hearing officer ("HOD") is final, and any party aggrieved by a HOD may challenge it in a civil action. Id. § 1415(i)(1), (2).
D.W. was, at the time this case was filed, an eleven year-old student at Thurgood Marshall Educational Center where he received special education services provided by the District of Columbia Public Schools ("DCPS") due to his bronchial asthma and Attention Deficit Hyperactivity Disorder ("ADHD"). Compl. ¶¶ 4-5. D.W.'s conditions allegedly caused him to be absent from school regularly, prompting Wilkins, in 2003, to start requesting that DCPS provide home bound tutoring services. Id. ¶¶ 7, 22. DCPS did not comply with Wilkins's request, and she filed a motion for a due process hearing before Hearing Officer Butler-Truesdale to be held on July 12, 2005. Administrative Record ("A.R.") at 327. After this hearing, on July 22, 2005, Butler-Truesdale issued an order for a mandatory multi-disciplinary team meeting to review D.W.'s evaluations and medical documents, to revise his individualized education plan if necessary, and to determine whether he required compensatory education. A.R. at 329. The order mandated that parent's counsel provide relevant medical documentation at least forty-eight hours prior to the meeting. A.R. at 329.DCPS did not convene the ordered meeting, prompting Wilkins to file another due process complaint on January 26, 2006. A.R. at 382.
DCPS convened a meeting on May 2, 2006 to resolve the issues in Wilkins's due process complaint. A.R. at 219. The parties were unable to come to an agreement and a due process hearing was convened before Butler-Truesdale on May 22, 2006. A.R. at 295, 506. Based on the evidence presented at this hearing, Butler-Truesdale issued a final order on June 2, 2006. A.R. at 139. However, prior to this order, the parties held an additional MDT meeting on May 23, 2006 to review D.W.'s IEP. A.R. at 150.
At this meeting, the Individualized Education Team, including D.W.'s special education teacher, his regular education teacher, and his speech and language pathologist, agreed that D.W.'s educational progress had been stunted due to his frequent absences, and that home bound services, as well as compensatory summer education, were necessary. A.R. at 151, 508. However, Wilkins alleges that contrary to DCPS's statements at the hearing, no one with the authority to order such home instruction was present at the meeting the next day. Compl. at ¶ 24. Instead, according to Wilkins, Tiffany Batson, the Special Education Coordinator at Thurgood Marshall, again stated that she did not have the power to authorize such services and suggested that Wilkins look into Visiting Instruction Services in lieu of home bound services. A.R. at 152, 523, 524. In response, DCPS argues that a need for home bound tutoring was not sufficiently presented, and that DCPS offered a program that they felt matched D.W.'s educational needs. Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") at 4.
On June 2, 2006, based on the testimony provided at the May 22, 2006 hearing, Butler-Truesdale issued an order for full compliance with her earlier July 22, 2005 determination. Under the order, DCPS was required to convene a meeting to review D.W.'s evaluations and medical documents, to revise his IEP, to develop an annual education plan for D.W, and to provide one-on-one tutoring and speech and therapy services. A.R. at 2. The order also stated that parent's counsel must provide relevant medical documentation at least forty-eight hours in advance of the meeting. A.R. at 4. After the issuance of this order,Wilkins sent a letter to DCPS stating that unless its position had changed with respect to the issues discussed on May 23, 2006, no such meeting was necessary. A.R. at 136. The record does not include a response from DCPS. Thus, another MDT meeting was not held.
Wilkins then filed a motion for an expedited hearing requesting that DCPS fund a psycho-educational evaluation, 100 hours of compensatory education, and home bound education services. A.R. at 4. Wilkins alleges that her counsel filed this motion with both Hearing Officer Butler-Truesdale and Chief Hearing Officer David Smith on June 27, 2006. A.R. at 583. Butler-Truesdale, however, states that according to DCPS protocol, these copies should have only been sent to the Student Hearing Office. A.R. at 5. She further asserts that due to this mistake, the motion was not properly filed until August 1, 2006. A.R. at 9. On July 31, 2006, Wilkins requested that Butler-Truesdale retain jurisdiction over D.W.'s case. A.R. at 253. On August 9, 2006, Chief Hearing Officer Smith granted Wilkins's motion for an expedited hearing and scheduled a hearing for August 25, 2006 to be held before Butler-Truesdale. A.R. at 203-206.
At the hearing, Wilkins argued that DCPS's failure to fund the psycho-educational evaluation, 100 hours of compensatory education, and home bound education services was a denial of D.W.'s FAPE. A.R. at 504, 642. She also argued that DCPS had failed both to implement the current IEP (which calls for seventeen and a half hours per week of special education and one hour per week of speech and language therapy) and to draft an additional IEP for when he is absent from school for more than three days. A.R. at 5, 120-26, 152. In response, DCPS argued that: (1) Wilkins failed to show the need for home bound instruction outside of Visiting Instruction Services; (2) DCPS offered compensatory education for D.W. over the summer that Wilkins rejected and services were scheduled to start again in the fall; and (3) the objection regarding D.W.'s psycho-evaluation was not ripe at the time it was made. Def.'s Mem. at 2.
At the close of the hearing, Butler-Truesdale issued an interim order mandating that: (1) the parties convene for another multi-disciplinary meeting on September 19, 2006 to discuss whether home instruction was needed; (2) the parties submit status reports by September 27, 2006 to update her on the outcome of that meeting; (3) the parties submit closing arguments in writing by September 1, 2006; and (4) the parties submit the following information: (a) D.W.'s attendance records from August 28, 2006 to present; (b) tracking forms for related services rendered since August 28, 2006; (c) records of any medically documented absences; and (d) the compensatory education plan completed at the September 19, 2006 meeting. A.R. at 5.
At the September 19, 2006 interim multi-disciplinary meeting, the MDT convened to discuss whether D.W.'s IEP should be modified due to a need for home bound instruction. A.R. at 27. However, Wilkins alleges that this issue could not properly be discussed because Batson stated that she did not feel comfortable talking about home bound services and that DCPS could only offer work packets to be sent home to D.W. through his siblings together with one hour of instruction per week for each absence. Compl. ¶¶ 82, 84, 96, 102, 105, 106. DCPS responds that it refused Wilkins's request not because of a lack of authority, but because Wilkins did not offer sufficient evidence to support such a service. Def.'s Mem. at 2. Butler-Truesdale agreed with DCPS; she notes in her HOD that "[t]he IEP meeting notes do not indicate that any DCPS personnel suggested that the issues to be addressed were beyond their immediate authority." A.R. at 6. The parties were again unable to reach an agreement on this issue.
The parties were also unable to agree upon D.W.'s compensatory education. On May 23, 2006, the MDT team had recommended 100 hours of compensatory education at the summer site. A.R at 152. Wilkins argues that D.W. could not attend these sessions because his condition worsened significantly if he spent any time outside during the summer. Pls.' Mem. Supp. Mot. Summ. J. (Pls.' Mem.") at 15. In response, DCPS asserted that Wilkins failed to provide sufficient medical evidence that D.W.'s condition warranted home bound services over the summer, but that they were willing to commence the services the following day, September 20, 2006, during school time. A.R. at 31, 528-29, 540. Wilkins disagreed with this proposal because compensatory education should not require D.W. to miss more regular schooling and should not be contingent upon him being healthy enough to attend school. Pls.' Mem. at 15. On September 27, 2006, pursuant to Butler-Truesdale's order, Wilkins submitted a status report contending that at the ...