The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
M.M., a minor, and her mother, bring this action against the District of Columbia and Michelle Rhee, chancellor of the District of Columbia Public Schools ("DCPS"), in her official capacity, alleging violations of the Individuals with Disabilities Education Act ("IDEA"). Plaintiffs allege that the District of Columbia denied M.M. the free appropriate public education ("FAPE") guaranteed by the IDEA by: (1) failing to provide M.M. with appropriate special education and related services; (2) failing to complete appropriate evaluations of M.M.; (3) failing to provide M.M. with an appropriate placement and failing to afford her parent an opportunity to participate in a placement meeting; and (4) failing to provide M.M. with an appropriate individual education plan ("IEP"). Plaintiffs further allege that an administrative hearing officer erred when he dismissed M.M.'s case and when he determined that she was not the prevailing party.*fn1
Plaintiffs and defendants have filed cross-motions for summary judgment [##12, 15]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the court concludes that defendants' motion for summary judgment should be granted, and plaintiffs' motion for summary judgment should be denied.
Congress enacted the IDEA to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education." 20 U.S.C. § 1400(d)(1)(A). To receive funding under the IDEA, States and the District of Columbia must ensure that "[a]ll children with disabilities residing in the State . . . and who are in need of special education and related services, are identified, located, and evaluated." 34 C.F.R. § 300.111(a)(1)(i). The IDEA's FAPE provision entitles each disabled student to an IEP and educational services tailored to the unique needs of that student. See 20 U.S.C. § 1414(d)(2)(A) ("At the beginning of each school year, each [State] shall have in effect, for each child with a disability in [its] jurisdiction, an individualized education program"); 34 C.F.R. § 300.323(a).
Parents who disagree with the school's provision of a FAPE to their child may request an administrative hearing before an impartial hearing officer. 20 U.S.C. § 1415(f)(1)(a). A decision made by a hearing officer "shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education." Id. § 1415(f)(3)(E). The hearing officer's determination may be challenged in federal district court by an "aggrieved" party. Id. § 1415(i)(2).
M.M. is an eleven year-old student who is learning disabled and eligible for special education. During the 2006-2007 school year she was enrolled at Thomas Elementary School in the District of Columbia. In September 2006, Dr. Kara Covington of the Children's National Medical Center completed a psycho-educational evaluation of M.M. The evaluation indicated that M.M. is functioning with overall low-average math skills and low reading and written language skills. It found that results reported by M.M.'s teacher were consistent with a diagnosis of Attention-Deficit/Hyperactivity Disorder ("ADHD"), however it concluded that it was not clear whether M.M.'s symptoms reflected a biologically-based disorder or had developed in response to her struggles in learning. The evaluation recommended that M.M. would benefit from a small, supportive, structured class environment with a low student-teacher ratio designed to meet the needs of students with disabilities. Further, it found that M.M. required a high degree of structure, support, and positive feedback to be successful.
In December 2006, a Multi-Disciplinary Team ("MDT") meeting was held to update M.M.'s IEP. Both parties agree that the December 2006 IEP provided M.M. with fifteen hours of specialized instruction per week. Plaintiffs state that M.M.'s mother requested occupational and speech therapy evaluations, as well as clinical evaluations be performed, and that DCPS agreed to complete the occupational therapy evaluation. Plaintiffs also state that M.M.'s mother generally disagreed with M.M.'s IEP and placement.
Later that month, plaintiffs filed a due process complaint alleging that DCPS violated the IDEA in a number of ways including failure to evaluate M.M., failure to develop an appropriate IEP, and failure to provide appropriate services and placement. A hearing was convened on February 9, 2007, and concluded on April 9, 2007. On April 26, 2007, Hearing Officer Terry Michael Banks dismissed plaintiffs' complaint with prejudice. The complaint was largely based on the September psycho-educational evaluation, and Hearing Officer Banks found that there was no evidence in the record that plaintiffs had provided this evaluation to DCPS. In addition, while Hearing Officer Banks concluded that plaintiffs had failed to prove that DCPS had failed to evaluate M.M. in all areas of suspected disability, he ordered DCPS to convene a MDT meeting to determine the need for further evaluations and to develop a student evaluation plan.
In June 2007, DCPS convened a MDT meeting, which included M.M.'s mother. At that meeting, the team reviewed the 2006 psycho-educational evaluation. Based on the evaluation and testimony from M.M.'s mother, educational advocate, speech pathologist and classroom teacher, the MDT determined that M.M. should be evaluated in speech/language and occupational therapy, but did not warrant a psychiatric evaluation. In July 2007, just one month after the MDT meeting and before any evaluations had been conducted, plaintiffs filed another due process complaint alleging that DCPS failed to provide an appropriate placement, develop an appropriate IEP or provide appropriate services for the 2005-2006 and 2006-2007 school years, failed to evaluate M.M. in all areas of suspected disability, and failed to provide compensatory education.
A due process hearing was held in September 2007 before Hearing Officer Banks. At that hearing, Dr. Covington testified, and repeated many of the findings and recommendations that she made in her September 2006 assessment, stating that M.M. should be in a small supportive classroom and that she should have occupational therapy and speech/language evaluations. Dr. Covington also testified that over the two years that she had seen M.M., M.M. had not made significant progress and that if M.M. were receiving a greater amount of services, should would probably make more progress. David Clark, admissions director for the High Road School, also testified at the hearing that the High Road School could provide M.M. with educational benefit. DCPS argued that plaintiffs' claims, because they arose before the April 2007 decision dismissing plaintiffs' complaint with prejudice, were precluded by res judicata, but did not introduce any evidence or put on any witnesses at the hearing.
On September 21, 2007, Hearing Officer Banks released his decision. Hearing Officer Banks noted that the parties stipulated that claims arising before the April 2007 decision were barred. He then found that plaintiffs failed to meet their burden of showing that DCPS took any action or refused to take any action that violated the IDEA between April 2007 and July 2007, when plaintiffs filed their second due process complaint, because it was not a violation to fail to complete the evaluations and convene another MDT meeting within thirty days. Nevertheless, he ordered DCPS to provide M.M. with occupational therapy and speech/language evaluations by October 5, 2007, and to convene a MDT meeting ...