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Kelsey v. District of Columbia

United States District Court, D. Columbia.

March 30, 2015

AMBER KELSEY, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant

Page 328

For AMBER KELSEY, Plaintiff: Karen D. Alvarez, LEAD ATTORNEY, Washington, DC.

For DISTRICT OF COLUMBIA, A municipal corporation, Defendant: Laura George, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.

Page 329

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Amber Kelsey, brings this action under the Individuals with Disabilities Education Act, as amended, 20 U.S.C. § § 1400 et seq. (" IDEA" ), against the District of Columbia seeking a reversal of a Hearing Officer Determination (" HOD" ) issued on July 18, 2013, by the District of Columbia Office of the State Superintendent of Education, Office of Review and Compliance, Student Hearing Office. The HOD awarded the plaintiff 96 hours of speech-language services by a certified speech pathologist as compensatory education services for the District of Columbia Public Schools' (" DCPS" ) failure to provide a free appropriate public education (" FAPE" ) between March 19, 2007 and June 2008.[1] See Administrative Record (" AR" ) at 20, ECF No. 16-1.[2] Pending before the Court are the plaintiff's Motion for Summary Judgment, ECF No. 24, and the defendant's Cross Motion for Summary Judgment, ECF No. 27. The Magistrate Judge to whom these motions were referred submitted a report recommending that the plaintiff's motion be denied and the defendant's motion be granted. See Report and Recommendation (January 13, 2015), ECF No. 32. The plaintiff has objected to the report in its entirety. See Pl.'s Objections to the Report and Recommendations

Page 330

of the Magistrate Judge (" Pl.'s Obj." ), ECF No. 33. For the reasons explained below, the Court adopts the Report and Recommendation. Accordingly, the plaintiff's Motion for Summary Judgment is denied and the defendant's Cross-Motion for Summary Judgment is granted.

I. BACKGROUND

The background of the present dispute has been described in the Report and Recommendation and by this Court in its prior decision in Clay v. District of Columbia, Memorandum and Order, No. 09-1612, (D.D.C. April 24, 2013), ECF No. 59. Previously, this Court ruled that the plaintiff " was denied a FAPE by the defendant during the period between March 19, 2007 and June 2008 because of the denial of speech therapy." . Specifically, " the defendant failed to implement [the plaintiff's] 2007 [Individualized Education Program], which required speech therapy for [the plaintiff]." Id. The case was remanded to a Hearing Officer to conduct " fact finding to establish the amount of speech and language therapy or other specialized instruction [the plaintiff] was deprived in the period between March 19, 2007 and June 2008, and determine the level of compensatory education services [she] requires to place her in the same position she would have been but for DCPS' IDEA violations during the period at issue." . The Hearing Officer was instructed that any award " must at least compensate [the plaintiff] for the 11.6 hours of speech therapy that the DCPS concedes that [the plaintiff] was deprived." .

A. Hearing

Upon remand, on June 12, 2013, a Hearing Officer for the District of Columbia, Office of the State Superintendent of Education, conducted a hearing to decide three issues:

A. What was the appropriate level of speech/language services that [the plaintiff] should have received at [Rock Creek Academy] between March 19, 2007 and June 2008?
B. What was the amount of speech and language therapy and other speech/language specialized instruction, as to which [the plaintiff] was deprived in the period between March 19, 2007 and June 2008?
C. What is the level of compensatory education services that [the plaintiff] requires to place her in the same position she would have been . . . but for DCPS' IDEA violations during the period between March 19, 2007 and June 2008?

AR at 5--6. At the hearing, the plaintiff offered the testimony of the plaintiff's grandmother, Annie Clay, see AR at 1028, and an expert, Jay Lucker, see AR at 1100.[3] The defendant offered the testimony of Valerie Lobban, see AR at 1221, a special education coordinator, and Marva McIntosh, see AR at 1239, a speech and language pathologist. At the conclusion of the hearing, the defendant moved for a directed finding that the plaintiff was entitled to only 11.6 hours of compensatory education--the bare minimum required under this Court's original order. AR at 7. The Hearing Officer denied the defendant's motion and took the matter under advisement. Id.

In his 18-page opinion, the Hearing Officer first addressed the level of specialized speech ...


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