Hawkins ex rel D.C. v. District of Columbia

• Decision Date: 07 March 2008
• Docket Number: Civil Action No. 07-0278 (JDB).
• Citation: 539 F.Supp.2d 108
• Parties: Kisha HAWKINS, on behalf of her minor child, D.C., Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

Page 108

539 F.Supp.2d 108

Kisha HAWKINS, on behalf of her minor child, D.C., Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 07-0278 (JDB).

United States District Court, District of Columbia.

March 7, 2008.

Douglas Tyrka, Tyrka & Associates, LLC, Washington, DC, for Plaintiff.

Amy Caspari, Office of the Attorney General, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Kisha Hawkins, on behalf of her minor child D.C., brings this action against the District of Columbia pursuant to the Individuals with Disabilities Education Act, as amended, ("IDEA"), 20 U.S.C. §§ 1400 et seq. Plaintiff challenges an adverse administrative decision rejecting her claim that defendant denied D.C. a free appropriate public education by failing to complete the evaluation process to determine if he was eligible for special education services. Currently before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions, the parties' memoranda, the administrative record, the applicable law, and the entire record, and for the reasons set forth below, the Court will grant plaintiff's motion for summary judgment and will deny defendant's cross-motion.

BACKGROUND

I. Statutory and Regulatory Background

Under the IDEA, all states that receive federal educational assistance must establish policies and procedures to ensure that "a free appropriate public education ["FADE"] is available to all children with disabilities residing in the State...." 20 U.S.C. § 1412(a)(1)(A). A FAPE is provided through the development and implementation of an Individualized Education Program ("IEP") for each such student. The IEP describes the student's present academic level, determines the student's educational goals, and sets out required educational and related services, including the extent of the student's participation in a regular classroom. 20 U.S.C. §§ 1414(d)(1)(A). A student's IEP is developed by a team that includes the student's parents, a regular education teacher, a special education teacher, a representative of the school district, an individual who can interpret evaluation results, personnel with particular knowledge of the student if applicable, and sometimes the student himself. 20 U.S.C. § 1414(d)(1)(B). An IEP team may also be referred to as a multi-disciplinary team. See generally Winkelman v. Parma City Sch. Dist., 550 U.S. ___, 127 S.Ct. 1994, 2000-01, 167 L.Ed.2d 904 (2007); T.T. v. District of Columbia, 2007 WL 2111032, at *3 (D.D.C. July 23, 2007).

Before a State or local educational agency may commence the initial provision of special education services, it must first determine whether a student is a "child with a disability." A "child with a disability" is a child with a listed disorder or "specific learning disabilities" who, "by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A). The "child find" provisions of the Act require each state to have policies and procedures to ensure that "[a] children with disabilities residing in the State ... who are in need of special education and related services, are identified, located, and evaluated." 20 U.S.C. § 1412(a)(3)(A). Once a child has been referred to an IEP team for an eligibility determination, the IEP team must conduct an "initial evaluation" which "shall consist of procedures (I) to determine whether a child is a child with a disability ... within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and (II) to determine the educational needs of such child." 20 U.S.C. § 1414(a)(1)(C)(i). The Act requires the local educational agency to:

(A) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parents, that may assist in determining — whether the child is a child with a disability ...;

(B) not use any single procedure as the sole criterion for determining whether a child is a child with a disability ...; and

(C) use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

20 U.S.C. § "1414(b)(2). The Act also states that, as part of the initial evaluation, an IEP team shall "review existing evaluation data on the child" and that, "on the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine" whether the child is disabled. 20 U.S.C. § 1414(c)(1). Upon completion of the initial evaluation and determination of eligibility for special education, the team either indicates the reasons a student is ineligible or, if eligibility is found, provides a recommendation for an IEP to the parent. D.C. Mun. Regs. tit. 5, §§ 3006, 3007.

If a parent disagrees with the eligibility determination (or the IEP, in the case of a disability finding), he or she has a right to a "due process hearing" before an impartial hearing officer, which shall be conducted by a State or local educational agency. 20 U.S.C. § 1415(f)(1). The hearing officer's determination ("HOD") is a final decision, and any party aggrieved by a HOD may challenge it in a civil action. 20 U.S.C. §§ 1415(i)(1), (2).

II. Factual Background

Plaintiff and her five-year-old son, D.C., reside together in the District of Columbia. Pl.'s Statement of Mat. Facts Not in Dispute ("Pl.'s Statement") ¶ 2. On October 7, 2004, D.C. registered at the Center for Mental Health Head Start ("the Center"), a District of Columbia Public School ("DCPS") provider. Apparently sometime thereafter, a referral was submitted on D.C.'s behalf for an evaluation and determination of whether he was eligible to receive special education services. The underlying referral and compliance with the appropriate regulations has not been challenged. Although this matter has led to four due process hearings and four HODs, DCPS still has not made a determination as to whether D.C. is eligible for special education services under the IDEA.

The first HOD in September 2005 ordered DCPS to convene a student evaluation plan meeting within fifteen days to determine what evaluations of D.C. should be conducted and to thereafter complete those evaluations. Administrative Record ("AR") at 38-40. Among other things, the HOD also required DCPS to convene a team meeting within ten days after the evaluations were completed to review the evaluations and "determine the student's eligibility for special education services." AR at 39. DCPS failed to convene the team as required by the HOD. Pl.'s Statement ¶ 5. On December 27, 2005, following another due process hearing, a subsequent HOD was issued, which ordered DCPS to convene a team meeting on or before January 25, 2006. AR at 44. DCPS was ordered to coordinate the scheduling of such a meeting through plaintiff's counsel. Yet once again, DCPS failed to convene the meeting. Pl.'s Statement ¶ 7.

A third due process hearing was held on June 13, 2006, and the ensuing HOD ordered DCPS to convene a team meeting to develop a student evaluation plan on or before August 4, 2006. AR at 46-50. DCPS was ordered to coordinate the scheduling of the meeting through plaintiff s counsel. If DCPS failed to comply with the order, plaintiff's counsel was to "contact the appropriate DCPS Placement Specialist and the DCPS Office of Mediation & Compliance to attempt to bring this case into compliance prior to filing a hearing request alleging DCPS's failure to comply." AR at 49. The order further provided that the deadline for the team meeting would be extended by the number of days attributable to plaintiff's failure to respond promptly to scheduling requests. DCPS was ordered to "document with affidavits and proofs of service for any delays caused by Petitioner or Petitioner's representatives." AR at 49.

The deadline came and went and DCPS failed to convene the meeting. Pl.'s State ¶ 9. Plaintiffs counsel therefore sent a letter to the Office of Mediation & Compliance on August 11, 2006, notifying DCPS of its noncompliance. AR at 59-61. When DCPS failed to respond, plaintiff filed an IDEA due process complaint on August 29, 2006. AR at 51-54. In that due process complaint, plaintiff listed the Center as D.C.'s current school, and plaintiff alleged that DCPS had violated the July 6, 2006 HOD by not contacting her counsel to schedule a team meeting and by not convening such a meeting by the prescribed deadline of August 4, 2006. AR at 51. Defendant did not file a notice of insufficiency regarding the complaint, but instead submitted a response on September 24, 2006, stating that it had "attempted to comply with HOD in scheduling [a team] meeting," and that it continued in its efforts to do so. AR at 55. As required by the IDEA, a resolution meeting was held on September 11, 2006; which left the matter unresolved. AR at 31.

At the subsequent due process hearing, plaintiff's counsel was apparently surprised by two representations made by DCPS. First, DCPS asserted that it had been unable to "locate" D.C. AR at 72. By this point in time, D.C. had aged out of the head start program at the Center. AR at 4. Based upon the location of his residence, then, his home school should be Turner Elementary School. According to DCPS, however, D.C. was not registered at Turner as an attending or non-attending student. AR at 72. Defendant therefore claimed that because DCPS did not know where to set up the team meeting, it had not done so. DCPS also represented that three evaluations of D.C. had been completed back in 2004 and 2005, AR at 8. Because DCPS made these representations without any supporting documentation, the hearing officer asked DCPS to submit the evaluations along with information about D.C.'s school enrollment status within...