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N.S. v. District of Columbia

May 4, 2010

N.S., BY HIS PARENTS, BRUCE AND SUSAN STEIN, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs Bruce and Susan Stein, on behalf of their minor son N.S., bring this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Plaintiffs claim that N.S. was denied a free appropriate public education ("FAPE") as required by the Act by Defendants District of Columbia, Adrian M. Fenty, the Mayor of the District of Columbia, and Michelle A. Rhee, Chancellor of District of Columbia Public Schools ("DCPS") (collectively, "Defendants"). Plaintiffs seek to reverse the decision of an impartial hearing officer, who rejected Plaintiffs' claims that the individualized education program ("IEP") created for N.S. was inadequate and that N.S. should have been placed in a private school that could address his educational needs for the 2008-09 school year. The Steins subsequently placed N.S. in a private school and now seek reimbursement from Defendants for his education expenses as well as attorneys' fees and costs. Presently pending before the Court are Plaintiffs' [13] Motion for Summary Judgment and Defendants' [14] Motion for Summary Judgment, both of which have been fully briefed and are now ripe for decision. Also pending before the Court is Plaintiffs' [25] Motion for Leave to Supplement the Record. Having considered the parties' filings, the applicable authorities, and the record as a whole, the Court shall DENY Plaintiffs' Motion for Leave to Supplement the Record, GRANT Plaintiffs' Motion for Summary Judgment, and DENY Defendants' Motion for Summary Judgment.

I. BACKGROUND

A. The IDEA Statutory Framework

The purpose of the IDEA is "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 . . . ." 20 U.S.C. § 1400(d)(1)(A). "Implicit" in the IDEA's guarantee "is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving funding under the IDEA, school districts are required to adopt procedures to ensure appropriate educational placement of disabled students. See 20 U.S.C. § 1413. A student's eligibility for a FAPE under the IDEA is determined by the results of testing and evaluating the student, and the findings of a "multidisciplinary team" or "individualized education program team" ("MDT/IEP team"). Id. § 1414. Such a team consists of the parents and teachers of the disabled student, as well as other educational specialists, who meet and confer in a collaborative process to determine how best to accommodate the needs of the student and provide a FAPE. See id. § 1414(d)(1)(B).

School districts must also develop a comprehensive plan, known as an individualized education program ("IEP"), for meeting the special educational needs of each disabled student. See 20 U.S.C. § 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of the IDEA and "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204. "If no suitable public school is available, the school system must pay the costs of sending the child to an appropriate private school." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations omitted). The IDEA requires IEPs to include, among other things: (1) "a statement of the child's present levels of academic achievement and functional performance, including . . . how the child's disability affects the child's involvement and progress in the general education curriculum"; (2) "a statement of measurable annual goals, including academic and functional goals, designed to . . . meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum . . . [and] meet each of the child's other education needs that result from the child's disability"; (3) "a description of how the child's progress toward meeting the[se] annual goals . . . will be measured"; and (4) "a statement of the special education and related services and supplementary aids and services . . . to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child." Id. § 1414(d)(1)(A)(i).

The IDEA requires that children with disabilities be placed in the "least restrictive environment" so that they can be educated in an integrated setting with children who are not disabled to the maximum extent appropriate. See 20 U.S.C. § 1412(a)(5)(A). The IDEA also guarantees parents of disabled children the opportunity to participate in the evaluation and placement process. See 20 U.S.C. §§ 1414(f), 1415(b)(1). Parents who object to their child's "identification, evaluation, or educational placement" are entitled to an impartial due process hearing, see 20 U.S.C. §§ 1415(b)(6), (f)(1), at which they have a "right to be accompanied and advised by counsel" and a "right to present evidence and confront, cross-examine, and compel the attendance of witnesses." 20 U.S.C. § 1415(h). A qualified impartial hearing officer conducts the due process hearing in accordance with the Act. 5 D.C. Mun. Regs. § 3030.1. Under the IDEA, a party is entitled to attorney's fees and costs if he or she is a "prevailing party."

20 U.S.C. § 1415(i)(3)(B). To be a prevailing party, one must gain a "material alteration of the legal relationship of the parties" and gain a judgment on the merits. Bridgeforth v. Dist. of Columbia, 933 F. Supp. 7, 10 (D.D.C. 1996).

Parents "aggrieved by" a hearing officer's findings and decision may bring a civil action in either state or federal court. 20 U.S.C. § 1415(i)(2); 5 D.C. Mun. Regs. § 3031.5. The district court has remedial authority under the Act, and broad discretion to grant "such relief as the court determines is appropriate" under the IDEA as guided by the goals of the Act. 20 U.S.C. § 1415(i)(2)(C)(iii).

B. Facts Relating to the Education of N.S.

N.S. is an eight-year-old child living in the District of Columbia who has been determined to be eligible for special education and related services. Defs.' Stmt.*fn1 ¶ 1. N.S. has a range of educational disabilities, including significant speech/language, executive functioning, dyslexia, dysgraphia, and social/emotional difficulties, including a general dysregulation disorder. Pls.' Stmt. ¶ 2. From 2006 to 2008, N.S. attended kindergarten and first grade at Murch Elementary School, his neighborhood school. Defs.' Stmt. ¶ 2. N.S. was initially placed into special education services at Murch on March 8, 2007. Id.; see Admin. Record ("AR") 74-75 (Initial Placement and Prior to Action Notice).

During his time at Murch, N.S. received special education services using a "pullout" model in which specialized instruction was delivered outside the general education classroom setting with a special educator and fewer students. Pls.' Stmt. ¶ 7.*fn2 The IEP prepared for N.S. in September 2007 called for N.S. to receive 7.5 hours per week of specialized instruction from the special education teacher and half an hour per week of counseling from a school social worker. See AR 47 (9/21/07 IEP). All of these hours were provided as pullout instruction away from the general education classroom, and the September 2007 IEP called for N.S. to spend 25% of his overall time outside the general education setting. See id.; 2/24/09 Tr. at 148-49.This IEP also stated annual goals for N.S. such as "master first grade reading standards with 80% accuracy" and "master first grade math standards with 80% accuracy." See AR at 49-50. The September 2007 IEP indicated that supplemental aids and services could not be provided to N.S. in the general education setting because "[s]tudent requires small structured environment to accommodate disabilities." See AR at 53. Accordingly, the September 2007 IEP called for N.S. to be placed in a combination of general education and resource classroom (i.e., pullout) settings. Id.

N.S. experienced significant academic and behavioral difficulties while at Murch. Pls.' Stmt. ¶ 8. N.S.'s parents provided him with private outside educational services during this time, but he failed to make adequate progress. Id. ¶ 9. In January 2008, N.S.' parents arranged for him to be evaluated by Dr. Kimberly Glass. Id. ¶ 10. Dr. Glass found that N.S. had several educational disabilities and recommended the maximum amount of special education services to be implemented for the coming year in order to close the gap between N.S.'s academic skills and those of his peers. Id. Dr. Glass's report also indicated that N.S. had weak motor control, with very weak handwriting skills. See AR at 129-30.

On February 28, 2008, an MDT/IEP team meeting took place at Murch to review N.S.'s progress. Defs.' Stmt. ¶ 3. At the meeting, the parents asked if they could pay for a private tutor to come into the school and assist N.S. during school hours. Pls.' Stmt. ¶ 13. The MDT/IEP team told the parents that such an action would act as a rejection of the proposed IEP, meaning that N.S. would not receive any special education services from the District of Columbia. Id. On May 29, 2008, another MDT/IEP team meeting was convened, and after reviewing N.S.'s records, the team requested that new evaluations be conducted. Defs.' Stmt. ¶ 6.

On June 12, 2008, the MDT/IEP team met again to discuss N.S.'s IEP and placement for the upcoming 2008-09 school year. Pls.' Stmt. ¶ 16. This meeting was attended by N.S.'s parents, their counsel, their law clerk, a social worker, a speech and language pathologist, the special education coordinator for Murch, and other participants. Defs.' Stmt. ¶ 7. The record contains detailed notes from the meeting that describe the discussion that took place. See AR at 212-14 (Meeting Notes). The notes indicate that the MDT/IEP team would request an occupational therapy ("OT") evaluation of N.S. See AR 212. N.S.'s general education teacher indicated that N.S. "requires a good deal of one-to-one instruction." Id. at 213. The MDT/IEP team decided to increase N.S.'s special education services from 8 hours to 15.5 hours per week. Defs.' Stmt. ¶ 8. The team also proposed that N.S. receive all of his special education services in the general education setting using a less intensive "inclusion" model. Pls.' Stmt. ¶ 18. The meeting notes indicate that "[g]oals [were] shared in the context of the inclusion classroom" but also that the "[t]eam discusse[d] the need for more time in specialized instruction." See AR 213. The team decided that they "should revisit/review the inclusion model of [N.S.'s] instruction after the first advisory." Id. at 214.

N.S.'s parents expressed concerns that an inclusion program would be inappropriate and overwhelming to N.S., preventing him from making progress. Pls.' Stmt. ¶ 21. The parents then notified the team of their intent to place N.S. at the Lab School, a private special education school, and seek public funding for that placement. Id. ¶¶ 23, 32. In addition to their disagreement with the ultimate proposal, N.S.'s parents identified other problems with the IEP that they believed rendered it incomplete and inadequate. Id. ¶ 24. The June 2008 IEP failed to include N.S.'s present levels of academic achievement and functional performance. Pls.' Stmt. ¶ 25. The IEP failed to identify any supplementary aids and services that N.S. would receive in the classroom. Id. ¶ 30. The IEP also failed to include specific goals and objectives to address N.S.'s significant deficits in written language skills. Id. ¶ 27. The IEP indicated that N.S. "requires small structured environment to accommodate disabilities" and cites this as a reason why "curricular modification, accommodation and/or supplementary aids and services [cannot] be used for a [least restrictive environment] setting in general education." See AR at 339. The IEP also repeated annual goals from the previous year's IEP, calling for N.S. in the second grade to "master first grade reading standards with 80% accuracy" and "master first grade math standards with 80% accuracy." AR at 336-37.

N.S. began the 2008-09 school year at the Lab School, where he is receiving an appropriate education. Pls.' Stmt. ¶¶ 32-34. N.S. did not attend Murch after the June 2008 IEP was developed. Defs.' Stmt. ¶ 14. On October 31, 2008, N.S.'s parents filed a request for a due process hearing to appeal the decision of the IEP team. Pls.' Stmt. ¶ 35. A due process hearing was convened over two days, December 12, 2008, and February 24, 2009, before Hearing Officer Latif Doman. Pls.' Stmt. ¶ 36.

C. Testimony at the Due Process Hearing

N.S.'s parents presented testimony at the due process hearing from three outside witnesses: Michelle Davis, a special education expert, Donna Pavluk, a speech and language therapy expert, and Christine Chang, an occupational therapy expert. Pls.' Stmt. ¶ 37. N.S.'s mother, Susan Stein, also testified. Id. DCPS presented testimony from Brenda Lewis, the principal at Murch, Andrea Chuahy, a special educator at Murch, and Jeanette Perry Mitchell, special education supervisor at Murch. Id. ¶ 38. Ms. Davis testified that N.S. had failed to make progress at Murch and that N.S. was making progress at the Lab School. Id. ¶ 40. Mses. Chang and Pavluk also noted N.S.'s progress at the ...


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