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A.G., et al v. District of Columbia

July 1, 2011

A.G., ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiffs Daniel Grosse and Vivian Cavalieri, on behalf of their minor son, A.G., brought this action under the Individual With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. A Hearing Officer found that the District of Columbia denied A.G. a free appropriate public education ("FAPE") in violation of the IDEA because it failed to provide A.G. with an individualized education plan ("IEP"), in particular, an IEP that included appropriate related services in the form of counseling, social work, psychological services, and parent counseling services (collectively, "wrap-around services"). The Hearing Officer directed the District of Columbia Public Schools ("DCPS") to provide such services in the future, but he declined to reimburse plaintiffs for the costs of the wrap-around services they had previously been forced to obtain on their own on the grounds that they failed to present evidence on those costs at the hearing. Plaintiffs appealed that decision by bringing this action against defendants District of Columbia, then-Mayor of the District of Columbia Adrian M. Fenty, and then-Chancellor of DCPS Michelle A. Rhee.

The parties have each filed motions for summary judgment and plaintiffs have moved for leave to submit additional evidence. For the following reasons, the Court will grant plaintiffs' motion for summary judgment and their motion to submit additional evidence, and will deny defendant's motion for summary judgment.

I. Background

A.G. was found eligible to receive special education and related services*fn1 by DCPS as a student with an emotional disability. Pls.' Statement of Material Facts ("SMF") ¶ 1. Pursuant to a prior Hearing Officer Determination ("HOD"), DCPS funded A.G.'s attendance at Wediko, a therapeutic, residential school in New Hampshire. Id. ¶ 2. In December 2007, Wediko discharged A.G. and its staff made several recommendations for his discharge and aftercare so that A.G. could live successfully at home. The recommendations included that A.G. continue therapy and be "associated with a non-parental adult to act as respite and/or prosocial facilitator outside of the home and school." Id. ¶ 4.

In January 2008, a multidisciplinary team ("MDT") met to discuss A.G.'s placement at The Frost School, a District-approved non-public school in Montgomery County, Maryland. Id. ¶¶ 1, 4. But the MDT deferred development of an IEP so that they could observe A.G. further. Id. ¶ 8; Def.'s SMF ¶ 4. Meanwhile, plaintiffs began paying themselves for the wrap-around services A.G. needed during the last week of February 2008. Def.'s SMF ¶ 5; Administrative Record ("AR") at 9--10. A.G. obtained these services, including mentoring and family counseling, outside of school from The Capital Region Children's Center. Def.'s SMF ¶ 5; AR at 9--10.

On November 17, 2008 -- almost a year after A.G. had been discharged from the therapeutic boarding school -- DCPS convened a meeting, and the team drafted A.G.'s first IEP. Pls.' SMF ¶ 20; AR at 10. Plaintiffs requested that the IEP include wrap-around services, and they requested reimbursement for the services for which they had already paid. Pls.' SMF ¶ 23; AR at 10. But the IEP developed in that meeting did not include the wrap-around services. AR at 10. Plaintiffs then wrote a letter on December 12, 2008 to DCPS requesting that it reimburse and prospectively fund the wrap-around services, but they did not receive a response. AR at 11.

On February 9, 2009, plaintiffs filed a due process complaint against DCPS requesting prospective wrap-around services and reimbursement for the cost of those that had been privately provided since February 2008. Pls.' SMF ¶ 28; Def.'s SMF ¶ 12. A hearing was held on March 19, 2009, at which both parties presented testimony. AR at 1. On April 9, 2009, the Hearing Officer determined that A.G. was denied a FAPE by DCPS's failure to establish an IEP that included the full scope of appropriate related services, and he also found that the wrap-around services were necessary for A.G. to remain in the less restrictive setting at Frost. AR at 14-15. Although the Hearing Officer found that plaintiffs would be due reimbursement for any costs incurred in providing wrap-around services for the prior year, he denied reimbursement because plaintiffs "failed to present any evidence of what those costs were." AR at 15--16.

On June 22, 2009, plaintiffs filed this action seeking reimbursement for the wrap-around services the parents had provided, and also seeking attorneys' fees and costs, including the fees and costs of this action. Compl. at 12. On January 15, 2010, the Court dismissed with prejudice all claims against defendants Adrian Fenty and Michelle Rhee, as well as the claims brought pursuant to 42 U.S.C. § 1983. On June 25, 2010 plaintiffs moved for summary judgment [#11] and on July 26, 2010 defendant District of Columbia filed a cross motion for summary judgment [#14].

On June 21, 2011, plaintiffs moved for leave to file additional evidence consisting of the invoices for the therapeutic wrap-around services provided by The Capital Region Children's Center [#21]. On June 24, 2011, plaintiffs moved to amend their motion for leave to file additional evidence to include additional legal authority [#22], which the Court granted separately on July 1, 2011.

II. Standard of Review

A. Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotations omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. See also Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

"The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." Sherwood v. Washington Post, 871 F.2d 1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). In assessing each party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.

B. Individuals with Disabilities Education Act

Under the IDEA, a party aggrieved by a hearing officer's decision may bring a civil action challenging it. 20 U.S.C. § 1415(i)(2)(A). A reviewing court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). The party challenging the administrative decision has the burden of "persuading the court that the hearing officer was ...


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