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S.S. v. District of Columbia

United States District Court, D. Columbia.

October 9, 2014

S.S., a minor child, by and through YVETTE STREET, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant

For Yvette Street, Plaintiff: Charles Anthony Moran, LEAD ATTORNEY, LAW OFFICES OF CHARLES A. MORAN, Washington, DC, USA; Steve Nabors, LEAD ATTORNEY, MORAN AND ASSOCIATES, Washington, DC, USA.

For District of Columbia, MUNICIPAL CORPORATION, Kaya Henderson, Chancellor, DCPS, Defendants: Veronica A. Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC, USA.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

Plaintiff Yvette Street, on behalf of her minor child S.S., filed suit against the District of Columbia, alleging the District failed to provide S.S. with a free appropriate public education in violation of the Individuals with Disabilities Education Improvement Act (" IDEA" ),[1] 20 U.S.C. § 1400 et seq. Presently before the Court is Plaintiff's [14] Motion to Amend Complaint and Request for Discovery. The District opposes Plaintiff's motion on the grounds that the proposed amendment is futile. Upon consideration of the pleadings,[2] the relevant legal authorities, and the record as a whole, the Court finds that Plaintiff's proposed amendment would not survive a motion to dismiss. Accordingly, Plaintiff's Motion and request for discovery are DENIED for the reasons explained below.

I. BACKGROUND

Plaintiff S.S. is a twelve-year old " child with a disability" as defined by 20 U.S.C. 1401(3). Compl. ¶ 6. S.S. is eligible for special education and related services under the diagnosis of Autism. Id. Plaintiff alleges DCPS denied S.S. a free appropriate public education (" FAPE" ) during the time S.S. was enrolled at MacFarland Middle School by failing to properly evaluate S.S., failing to properly formulate and revise S.S.' Individualized Education Program

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(" IEP" ), and failing to provide S.S. home instruction. Id. ¶ ¶ 1-2.

On September 10, 2013, Plaintiff filed an administrative due process complaint alleging that the District of Columbia Public Schools (" DCPS" ) denied S.S. a FAPE by: (1) failing to implement S.S.' IEP, specifically the adapted physical education requirement, during the 2011-2012 school year; (2) failing to re-evaluate S.S. in all areas of suspected disability within a reasonable period of time; (3) failing to provide home instruction from January 8, 2013, to June 20, 2013; (4) failing to pay for " medical services incurred by the parent in her effort to secure an appropriate IEP and placement for the past two years" ; (5) failing to include as IEP team members on June 11, 2013, " individuals who can interpret the instructional implications of evaluation results" ; (6) failing to consider independent evaluations and other relevant information provided by the parent at the June 11, 2013, IEP meeting " in order to change the student's eligibility classification and develop an appropriate IEP" ; (7) failing to permit meaningful parental participation in the IEP development and placement decision on June 11, 2013; (8) failing to review and revise the IEP as appropriate on June 11, 2013; (9) failing to add school health services as a related service to the June 11, 2013, IEP; (10) failing to add Applied Behavior Analysis (" ABA" ) as a supplementary aid or service to the June 11, 2013 IEP; (11) failing to add IEP goals, objectives, accommodations and services to address S.S.' Traumatic Brain Injury (" TBI" ) on June 11, 2013; (12) failing to add to the IEP goals, objectives, accommodations, and services to address S.S.' visual impairment on June 11, 2013; (13) failing to have an appropriate IEP in effect at the beginning of the 2013-2014 school year; and (14) failing to provide an appropriate placement for the 2013-2014 school year. Def.'s Opp'n, Ex. 1 (Plaintiff's Administrative Due Process Complaint), at 7-9.

A pre-hearing conference was held on October 11, 2013, and a Pre-Hearing Order was issued on October 18, 2013. The Hearing Officer identified the following issues to be determined at the administrative hearing: whether DCPS denied S.S. a FAPE by (1) failing to implement S.S.' June 13, 2011, IEP during the 2011-2012 school year by not implementing 30 minutes per week of adaptive physical education from August 22, 2011, through June 14, 2012; (2) failing to reevaluate S.S. in all areas of suspected disability, specifically failing to conduct neuropsychological or neurological assessments to determine if S.S. had TBI in December 2011 and failing to conduct occupational therapy and physical therapy assessments; (3) failing to provide S.S. with home-based instruction services from January 8, 2013, through June 20, 2013; (4) failing to fund medical services provided to S.S.; (5) failing to include persons able to interpret evaluation results at the June 11, 2013, IEP meeting; (6) failing to appropriately identify S.S.' disability classification on June 11, 2013, by not classifying S.S. as a student with multiple disabilities rather than as a student with autism; (7) failing to provide the parent the opportunity to participate in S.S.' June 11, 2013, IEP meeting; (8) failing to include nursing services for the administration of S.S.' prescription medication on the June 11, 2013, IEP; (9) failing to include ABA as a supplementary aid or service on S.S.' June 11, 2013, IEP; (10) failing to develop an appropriate IEP; and (11) failing to provide placement in a non-public special education day school in the June 11, 2013, IEP. Def.'s Opp'n, Ex. 2 (Oct. 18, 2013, Pre-Hearing Order), at 2-3. Plaintiff did not object to the issues to be determined as described in the October 18, 2013, Pre-Hearing Order. See Def.'s

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Opp'n, Ex. 3 (Dec. 5, 2013, Hearing Officer's Determination), at 4-5. Subsequent to the issuance of the Pre-Hearing Order, but prior to the administrative due process hearing, the Hearing Officer ruled on Defendant's motion to dismiss and dismissed issues two (2) and four (4) and limited issue three (3) to the period of March 17, 2013, through June 20, 2013. Id. at 5.

Following the due process hearing, the Hearing Officer dismissed eight of Plaintiff's nine remaining claims. Id. at 58. Thereafter, on March 4, 2014, Plaintiffs filed a Complaint in this Court under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., alleging that DCPS: (1) failed to re-evaluate S.S. in all areas of suspected disability within a reasonable period of time after his injuries at MacFarland Middle School; (2) failed to provide home instruction during the 2012-2013 school year; (3) failed to consider all of the independent evaluations provided by the parent at the June 11, 2013, IEP meeting; (4) failed to change S.S.' disability classification to multiple disabilities at the June 11, 2013, IEP meeting; (5) failed to permit meaningful parental participation at the June 11, 2013, IEP meeting; (6) failed to review and revise S.S.' IEP at the June 11, 2013, IEP meeting; (7) failed to provide an appropriate placement and to permit the parent to have input regarding the placement decision for the 2013-2014 ...


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