The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Barbara Theodore brings this action as parent and next friend of A.G. against the District of Columbia and Michelle Rhee, the Chancellor of the District of Columbia Public Schools ("DCPS"). Plaintiff alleges that defendants have failed to provide her daughter with testing to determine whether she is eligible for special educational services, thereby violating the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-82. She also challenges a Hearing Officer Determination ("HOD") that dismissed her case on December 6, 2008. Now before the Court are defendants' two motions to dismiss plaintiff's complaint. Upon consideration of defendants' motions, the parties' memoranda, and the entire record, and for the reasons below, the Court will deny defendants' first motion to dismiss and will grant the second motion in part and deny the second motion in part.
I. The Individuals with Disabilities Education Act
Under the IDEA, all states, including the District of Columbia, that receive federal education 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). The law defines a FAPE as "special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required[.]" Id. § 1401(9). Once a child is found to qualify for a FAPE, DCPS is required to develop and implement an Individualized Education Program ("IEP") for him or her. Id. § 1414(d)(2)(A). The IEP comprehensively describes the student's present academic level, details measurable annual goals for the student, specifies necessary educational and related services, and establishes the extent to which the student will participate in a regular education classroom. Id. § 1414(d)(1)(A)(I).
In order to implement the IEP, a team that includes the child's parents determines where the child should be placed. Id. § 1414(e). If no public school can meet the child's needs, DCPS is required to place him or her at an appropriate private school and pay the tuition. Id. § 1412(a)(10)(B)(I); see Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 369 (1985). If a parent disagrees with the IEP or the subsequent placement, he or she is entitled to an "impartial due process hearing" conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). Any party aggrieved by the hearing decision may bring a civil action in federal district court challenging it. Id. § 1415(i)(2)(A).
A.G. is a fifteen-year-old girl who attends high school in the District of Columbia. Compl. ¶¶ 5, 8. DCPS performed a comprehensive psychological exam on A.G. in July and August 2007 that established that A.G. did not have a learning disability. See Due Process Hearing Request dated March 12, 2008 at 3 ("DPHR #1") (attached as Compl. Ex. 6). Plaintiff was dissatisfied with the results of that test and sought additional testing during a multi-disciplinary team ("MDT")/IEP meeting on February 11, 2008. Compl. ¶ 10. DCPS declined to fund additional testing, and plaintiff filed DPHR #1 alleging that DCPS denied A.G. a FAPE by failing to fund the additional testing.*fn1 Compl. ¶ 11. An HOD issued on April 7, 2008 ("HOD #1") dismissed the complaint in DPHR #1 with prejudice on the grounds that DCPS had properly determined that A.G. was ineligible for special educational services. See HOD #1 at 4 (attached as Compl. Ex. 5).
Plaintiff filed another DPHR alleging a denial of a FAPE by failing to evaluate, determine eligibility for, and develop an appropriate IEP and placement for A.G. See DPHR dated May 23, 2008 at 4 ("DPHR #2") (attached as Compl. Ex. 4). A second HOD ("HOD #2") dismissed DPHR #2 in July 2008, holding that DCPS properly evaluated A.G. and made a timely determination that A.G. was ineligible for special education services. See HOD #2 at 5 (attached as Compl. Ex. 3).
Plaintiff had another MDT meeting in September 2008. She brought a letter dated August 6, 2008, showing that A.G. had been diagnosed with attention deficit with hyperactive disorder ("ADHD") by a psychiatrist. See Compl. ¶ 17; Letter from Mattie White dated Aug. 6, 2008 (attached as Compl. Ex. 18). DCPS nonetheless again declined to fund additional testing. Unhappy with DCPS's response to the new diagnosis, plaintiff then filed a third DPHR ("DPHR #3") on October 23, 2008, again claiming a failure to fund an independent psychological evaluation and a failure to provide her daughter with special education services. Compl. ¶¶ 19-23.
From there, the legal process and the interactions between plaintiff and DCPS parted ways and unfolded down separate paths. A third HOD ("HOD #3"), issued on December 6, 2008, dismissed DPHR #3 as barred by res judicata, reasoning that DPHR #3 "allege[d] no new facts to support revisiting the findings in the prior HOD." See HOD #3 at 3 (attached as Compl. Ex. 1). Plaintiff moved for reconsideration of HOD #3 on December 11, 2008. See Compl. ¶ 27; Pl. Mot. for Recons. (attached as Compl. Ex. 30). The hearing officer did not act on the motion for reconsideration within 30 days, and the motion was thus constructively denied on January 10, 2009. See Due Process Hearing Standard Operating Procedures § 1005 (attached as First Pl. Opp'n Ex. A).*fn2 Plaintiff filed the complaint now before this Court on April 10, 2009.
As the legal process wound on, the parties made progress in arranging special education services for A.G. On October 29, 2008, DCPS issued a funding letter for independent psychological and psychiatric evaluations. See Oct. 29, 2008 letter from Richard Nyankori ("Oct. 29 Letter") (attached as Second Def. Mem. Ex. 2). A psychological evaluation was performed on November 11, 2008, and a psychiatric evaluation was performed on March 30, 2009. See Evaluation Reports (attached as Second Def. Mem. Ex. 3). Plaintiff's counsel sent copies of these completed evaluations to DCPS on May 5, 2009.*fn3 See May 5, 2009 letter from John Straus ("May 5 Letter") (attached as Second Def. Mem. Ex. 1). DCPS then scheduled an eligibility meeting for A.G. on July 9, 2009, which identified A.G. as eligible for special education services. See Affidavit of Tamara Clemmons ¶¶ 5-6 ("Clemmons Aff.") (attached as Second Def. Reply Ex. A). The parties agreed to a behavioral assessment test, which was completed on July 29, 2009, see id. ¶ 6, and met again on July 30, 2009 to review the behavioral assessment and draft an IEP for A.G., see id. ¶¶ 7-8. Plaintiff signed A.G.'s IEP the same day. See IEP (attached as Second Def. Reply Ex. E).
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual ...