United States District Court, D. Columbia.
Decided: December 2, 2014.
[Copyrighted Material Omitted]
For T.M., a minor, by his surrogate parents for educational purposes and Next Friends, AUBREY DUBRA, CLARK RAY, Plaintiffs: Pamela Hope Roth, LEAD ATTORNEY, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Veronica A. Porter, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.
MEMORANDUM OPINION [Dkt. ##22, 28,
RICHARD J. LEON, United States District Judge.
This case arises under the Individuals with Disabilities Education Act (" IDEA" ) as amended and reauthorized by the Individuals with Disabilities Education Improvement Act of 2004. 20 U.S.C. § 1400 et seq. Plaintiff T.M. is a disabled child. Compl. ¶ 4 [Dkt. #1]. Plaintiffs Clark Ray and Aubrey Dubra were T.M.'s foster parents and now are his adoptive parents. Mem. of P. & . A. in Supp. of Pls.' Mot. for Summ. J. (" Pls.' Mem." ) at 30-31 [Dkt. #22]. Plaintiffs claim that defendant District of Columbia, through the actions of the District of Columbia Public Schools (" DCPS" ), violated T.M.'s rights under the IDEA. After an administrative due process hearing below, plaintiffs bring this civil suit. Compl. at 1-2. The parties now cross-move for summary judgment. Pls.' Mot. for Summ. J. [Dkt. #22]; Def.'s Cross Mot. for Summ. J. and Opp'n to Pls.' Mot. for Summ. J. [Dkt. #28]. After review of the motions, the applicable law, and the administrative record, defendant's motion for summary judgment is GRANTED and plaintiffs' motion is DENIED.
The IDEA guarantees children with disabilities the right to a free appropriate public education (" FAPE" ). 20 U.S.C. § 1400(d)(1)(A). In designing an appropriate education for students with disabilities, a child's parents, teachers, school officials, and other professionals collaborate to develop an individualized education plan (" IEP" ) to meet the child's unique needs. Id. § 1414(d)(1)(B). Parents who believe their child's rights under the IDEA are being violated may file an administrative due process complaint and are entitled to an impartial due process hearing. Id. § 1415(f). Any party aggrieved by the findings and decision made during the administrative hearing may file a civil action in a district court of the United States. Id. § 1415(i)(2)(A).
At the time of the administrative complaint underlying this case, T.M. was a nine-year-old in third grade at Bruce Monroe Elementary School. AR 8. T.M. enrolled in Bruce Monroe in the spring of 2011 after attending school in Prince George's County, Maryland, where he had an IEP. AR 48-50, 142. A multi-disciplinary team (" MDT" ) reviewed and revised T.M.'s IEP in April 2011, AR 114-31, and again in May 2011, AR 132-153. That summer, T.M. was hospitalized and diagnosed with post-traumatic stress disorder and attention deficit hyperactivity disorder. AR 51-69. T.M. continued at Bruce Monroe Elementary School for the 2011-2012 school year. See, e.g., AR 240-52.
In September 2011, the MDT again reviewed and revised T.M.'s IEP. Id. The September 2011 IEP established goals in academic subject areas as well as emotional, social, behavioral, and motor skills/physical development. AR 242-47. It required that T.M. receive 22.5 hours per week of specialized instruction, one hour per week of occupational therapy, and four hours per month of behavioral support services, all to be provided outside of the general education setting. AR 248.
In October, after concern from T.M.'s parents over reports of behavioral incidents, DCPS conducted a Least Restrictive Environment (" LRE" ) Review, which consisted of observing T.M. in class over the course of two days. AR 253-59. The observer did not report any significant behavioral concerns and concluded that Bruce Monroe would be able to implement T.M.'s IEP. AR 256-57. She recommended that Bruce Monroe conduct a new Functional Behavioral Assessment (" FBA" ) and develop a Behavior Improvement Plan (" BIP" ), AR 257, which it did in November, AR 280-82.
T.M.'s IEP was amended without a meeting in November 2011 to include transportation services. AR 267, 283. The requirements of 22.5 hours per week of specialized instruction, one hour per week of occupational therapy, and four hours per month of behavioral support services, all provided outside of the general education setting, remained the same. AR 274. The November 2011 IEP also included the services of a one-on-one dedicated aide, id., though those services were not provided, AR 12.
Two teachers headed T.M.'s classroom during the 2011-2012 school year: Ms. Thomas for the first part of the year, and Mr. Coulibaly beginning in January 2012. AR 1168-69. In January and February 2012, T.M.'s parents and representatives requested to observe his classroom. AR 209-213, 215-223, 228. DCPS permitted
T.M.'s then-guardian ad litem and one of plaintiffs' expert witnesses each to perform one observation. AR 209-213, 1312. Requests by another expert and T.M.'s parents themselves, as well as for additional observations by those who had observed once, were denied. AR 209-213, 215-223. At around the same time, T.M. was accepted into the Lourie Center School, a private school in Rockville, Maryland. AR 434.
A February 6, 2012, IEP Progress Report indicated that T.M. was progressing on all of his IEP annual goals. AR 455-59. However, T.M.'s parents were concerned with his behavior and progress in school and filed an administrative due process complaint on March 7, 2012. AR 471-98. After the initial complaint was filed, DCPS continued to review and update T.M.'s FBA, BIP, and IEP. During a resolution meeting in March and subsequent discovery, it came to the parents' attention that paperwork reflected that there had been a meeting in early February. AR 557. Parents and their counsel were not informed about the possibility of such a meeting, and DCPS denies that such a meeting ever took place. AR 1796-97. The paperwork included a letter of invitation, a disability worksheet, finding of eligibility, and meeting attendance record. AR 440-447.
The MDT revised T.M.'s IEP in April 2012 IEP. AR 599-625. The April 2012 IEP called for 22.5 hours per week of specialized instruction, four hours per month of occupational therapy, and two hours per month of behavioral support services, all to be provided outside of the general education setting. AR 621. However, T.M.'s parents did not agree to finalize the April 2012 IEP. AR 13.
Plaintiffs amended their due process complaint on April 30, 2012. AR 727-70. In general terms, the amended complaint asked the Hearing Officer (" HO" ) to adjudicate whether DCPS had denied T.M. a free appropriate public education based on numerous specific actions or inactions by the teachers and school, whether Bruce Monroe was an appropriate placement, and whether T.M. was entitled to compensatory education. Id. Plaintiffs took issue with, among other things, DCPS's alleged failure to provide a one-on-one aide, failure to provide occupational therapy, failure to provide speech and language services, failure to implement the BIP, refusal to allow plaintiffs' requested observations, failure to implement appropriate instructional methodologies, and misrepresentations regarding meetings and progress. Id.
Prior to the hearing, the Hearing Officer issued a pre-hearing order which indicated that the hearing would be held over the course of three days. AR 805. Plaintiffs were allotted 11 hours to present their witness and DCPS was allotted 10 hours. Id. The hearing took place on May 29, May 31, and June 1, 2012. AR 6. After the testimony of plaintiffs' witnesses took two days, DCPS called its first witness on the last day of the hearing. AR 1528. The HO limited DCPS's time to present its case as well as plaintiffs' time for cross-examination. AR 1645-49.
The Hearing Officer released his determination (Hearing Officer Determination, or " HOD" ) on June 28, 2012. AR 5-29. The HO found in part for the plaintiffs and in part for DCPS. Id. In favor of the plaintiffs, he found the following: (1) The IEP required DCPS provide T.M. with a dedicated aide. AR 22. Its failure to do so was a material violation of the IEP and a denial of FAPE. AR 22, 27. (2) DCPS's failure to communicate effectively with plaintiffs was a material violation of the IEP. AR 23. (3) DCPS's refusal of T.M.'s psychiatrist's request for a classroom observation denied plaintiffs' right to obtain an independent evaluation, which
interfered with their right to participate in the IEP decision-making process. AR 25. (4) DCPS's failure to provide accurate progress reports in the form of graded papers affected plaintiffs' ability to track T.M.'s progress and participate in the IEP decision-making process, which was a denial of FAPE. AR 26. (5) The implementation of an April 2012 IEP was a procedural violation of the IDEA because it had not been finalized with the parents. AR 27. On the other issues presented for the hearing, the HO found in favor of the District.
On September 12, 2012, plaintiffs filed suit in this Court appealing the HOD. Compl. [Dkt. #1]; see 20 U.S.C. § 1415(i)(2)(A). They now move for summary judgment on the administrative record, arguing that the HOD should be reversed in part. Pls.' Mot. for Summ. J.; Pls.' Mem. Plaintiffs challenge only certain adverse findings and conclusions in the HOD as inaccurate or incorrect. Pls.' Mem. at 30. For brevity and clarity, I discuss only those parts of the determination that plaintiffs contest here.
Specifically, plaintiffs claim that DCPS denied T.M. a FAPE in the following ways: (1) by failing to provide him speech and language services for the 2011-2012 school year, id. at 44-49; (2) by failing to provide him occupational therapy services outside the classroom for the 2011-2012 school year, id. at 49-52; (3) by failing to allow plaintiffs and their representatives to observe T.M. in his classroom, id. at 52-55; (4) by failing to provide T.M. an appropriate location of service for the 2011-2012 school year, id. at 55-59; (5) by failing to identify the Lourie Center as the location of service, id. at 59-60; (6) by generating and referring to false documents concerning an MDT/IEP meeting that did not take place, id. at 60-62; (7) by misrepresenting T.M.'s academic and therapeutic progress such that it deprived plaintiffs of effective participation in the IEP process, id. at 62-64; and (8) by failing to revise the BIP for ninety days, id. at 64-68. Plaintiffs argue that the HO's conclusions to the contrary were erroneous. Plaintiffs also argue that the HO erred by limiting the plaintiffs to 20 minutes of cross-examination per witness. Id. at 68-69.
Defendant cross-moves for summary judgment on those same issues, arguing that the administrative record supports the conclusion that the Hearing Officer's determinations were appropriate and DCPS did not deny T.M. a FAPE in the ways plaintiffs describe. Def.'s Cross Mot. for Summ. J. and Opp'n to Pls.' Mot. for Summ. J.; Mem. in Support of Def.'s ...