A.S. v. Dist. of Columbia, Civil Action No. 10–cv–1670 (BJR).

• Decision Date: 01 February 2012
• Docket Number: Civil Action No. 10–cv–1670 (BJR).
• Citation: 281 Ed. Law Rep. 973,842 F.Supp.2d 40
• Parties: A.S., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

842 F.Supp.2d 40

281 Ed. Law Rep. 973

A.S., et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 10–cv–1670 (BJR).

United States District Court, District of Columbia.

Feb. 1, 2012.

Michael J. Eig, Paula Amy Rosenstock, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.

Richard Allan Latterell, Office of Attorney General, Washington, DC, for Defendant.

ORDER AND MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT

BARBARA J. ROTHSTEIN, District Judge.

This is an action under the Individuals with Disabilities Education Improvement Act (hereinafter “IDEA”) for attorneys' fees and costs incurred during administrative proceedings in which plaintiffs were the prevailing party.¹ This matter was reassigned to this court from Judge Walton on September 1, 2011. Before the court at this time is Plaintiffs' Motion for Summary Judgment [dkt. # 11] (“ Mot. for SJ ”). Plaintiffs allege that they are entitled to additional fees from the District of Columbia Public Schools (hereinafter “DCPS”) in the amount of $49,709.22. Mot. for SJ at 2. Having read the parties' pleadings, and for the reasons stated herein, plaintiffs' motion will be granted in part.

I. BACKGROUNDA. Findings of Fact²

Plaintiff A. S., now thirteen years old, is a child residing in the District of Columbia who was found eligible in 2008 for special education and related services as a child with a disability under the IDEA. Hearing Officer's Determination [dkt. # 11–3] (hereinafter “H.O. Det.”) at 4, ¶¶ 1, 4. A.S. was been diagnosed at that time with a “Specific Learning Disability” and “Other Health Impairment.” Id., ¶ 2.

A.S. struggled academically and experienced behavioral difficulties at his charter school during the 2008–2009 school year. In light of A.S.'s continued difficulties at the charter school, in early 2009, his parents applied for and secured placement for A.S. at Kingsbury Day School, a private school. Id. at 5, ¶¶ 6, 8; Plaintiffs' Statement of Undisputed Material Facts [dkt. # 11–1] (“Pltfs' SOF”) ¶ 5.

On February 10, 2009, A.S.'s multi-disciplinary team (hereinafter “MDT”) convened a meeting at the charter school to conduct an annual review of A.S.'s individualized education program (hereinafter “IEP”).” At that meeting, A.S.'s parents reported that his pediatrician had recently diagnosed him with ADHD. While the MDT added the particular disability classification to A.S.'s IEP in light of the diagnosis, “goals and objectives to address weaknesses in attention, organization, and/or other areas affected by his ADHD were not developed at [that] time.” Under the IEP, A.S. remained at the charter school. H.O. Det. at 6, ¶¶ 10–11. Following the February IEP meeting, A.S.'s parents sent a letter through counsel formally rejecting the IEP and proposed placement, and requesting public funding for A. S.'s attendance at Kingsbury. A.S. completed the 2008–2009 school year at the charter school, but “his behavioral difficulties continued to impact his ability to make academic progress.” Id. at 7, ¶¶ 14, 16.

In June 2009, plaintiffs' counsel wrote to the charter school and DCPS expressing concerns about A.S.'s educational program at the charter school, and requesting another MDT/IEP team meeting. Id., ¶ 17. In early July 2009, the charter school sent A.S.'s parents letters of invitation for an MDT/IEP team meeting on July 14, 2009. The meeting was canceled when A.S.'s parents provided the school with a lengthy independent evaluation report on July 13, 2009. Id. at 8, ¶ 19.

On July 20, 2009, A.S.'s parents filed a due process complaint against DCPS, and a resolution meeting was held on July 27, 2009. DCPS agreed to conduct additional assessments before discussing any changes in programming and placement. DCPS sent an invitation to convene an MDT/IEP team meeting on or about July 22, 2009, but A.S.'s parents declined the meeting. On or about August 10, 2009, A.S.'s parents wrote to the charter school and DCPS informing them that A.S. would attend Kingsbury during the 2009–2010 school year, and notifying DCPS of their intent to seek public funding for this placement. A.S.'s parents responded to subsequent invitations to convene an MDT/IEP team meeting by informing the charter school and DCPS that they wished to wait for the completion of all evaluations before returning to such a meeting. Id., ¶¶ 20–22.

On or about September 2, 2009, A.S. began attending Kingsbury. Id. at 9, ¶ 25. The team reconvened on or about November 16, 2009 to discuss A.S.'s speech and language evaluation; the IEP team ultimately decided that A.S. did not require speech and language services. A.S.'s parents did not agree with the outcome of that meeting. Id. at 9–10, ¶ 29.

On December 9, 2009, the team reconvened to finalize the IEP. As a result of that meeting, the team developed a revised IEP; however, the team did not discuss school placement options or propose a specific school placement for A.S.'s parents to consider. Instead, a DCPS representative informed A.S.'s parents that A.S.'s IEP would be sent to a DCPS “cluster supervisor” for a determination of placement. A.S.'s parents' request to participate in the placement discussion was rejected. In fact, the individuals who met to discuss A.S.'s school placement subsequent to the December IEP meeting, including the Compliance Case Manager and a DCPS “cluster supervisor,” had no personal knowledge of A.S., and had never observed him. A.S.'s parents were unable to participate in the decisions concerning A.S.'s placement, and they did not receive a finalized copy of the IEP for several weeks following the December 2009 meeting. Id. at 10–11, ¶¶ 30–36.

In March 2010, A.S.'s parents, after visiting the school placement that had been proposed by DCPS, concluded that the program was not appropriate. A.S. would have been the only fifth-grade student in a classroom of older students, and he would have received only fifteen hours per week of specialized instruction, whereas A.S.'s IEP recommended nineteen hours. Id. at 12–13, ¶ ¶ 37–39.

On April 29, 2010, A.S.'s parents filed an administrative appeal on his behalf. Pltfs' SOF ¶ 2. On May 11, 2010, the parties engaged in an unsuccessful dispute resolution meeting. A Due Process Hearing was held before Hearing Officer Bruce Ryan. The hearing took place in four sessions: June 17, 18, and 30, and July 2, 2010. There was testimony from three witnesses for petitioner and seven witnesses for DCPS. H.O. Det. at 2.

At the hearing, plaintiffs claimed DCPS denied a Free and Appropriate Public Education (hereinafter “FAPE”) to A.S. by failing to evaluate him, by failing to provide an appropriate IEP in February 2009, by failing to propose an appropriate placement in February 2009, by failing to find him eligible for speech and language services, by proposing an “inappropriate level of service” and an inappropriate placement proposal following the December 2009 IEP meeting, and by committing various procedural violations. As relief for the alleged denials of FAPE, plaintiffs sought reimbursement for the costs of attending Kingsbury for the 2009–10 school year and prospective placement at Kingsbury. Id. at 3–4. On July 19, 2010, Hearing Officer Ryan issued his written determination.

The Hearing Officer determined that plaintiffs failed to show a denial of FAPE on the basis of a failure to evaluate A.S., a failure to propose an appropriate placement in February 2009, or a denial of speech and language services. The hearing officer found that plaintiffs did show a denial of FAPE in part based on the lack of appropriateness of the February 2009 IEP, as well as for certain procedural violations and based on the inappropriate December 2009 IEP and inappropriate placement proposal. Id. at 14. As to the relief requested, Hearing Officer Ryan granted retroactive reimbursement for the latter half of the 2009–10 school year at Kingsbury, but denied it for the first half. He determined that, prior to the 2009–10 school year, A.S.'s parents had specifically requested that the parties wait for completion of all further evaluations before returning to an IEP meeting; in the meantime, however, A.S. was already enrolled at Kingsbury. Furthermore, Hearing Officer Ryan found that evidence suggested that A.S.'s parents may have predetermined [A.S.'s] placement at Kingsbury as early as February 2009, long before the evaluations were completed. The Hearing Officer agreed with DCPS that “such predetermined course of action” was “unreasonable under the circumstances and acted to deprive DCPS of a fair opportunity to evaluate” A.S. Id. at 26–27.

As for prospective placement, the Hearing Officer concluded that plaintiffs had not demonstrated in the hearing “that a full-time, out of general education placement at the Private School, going forward, is necessary and appropriately tailored to meet the specific needs of the Student.” He also determined that “relative equities” suggested that DCPS should have a further opportunity to convene an IEP team meeting, including A.S.'s parents, to discuss an appropriate placement for the 2010–11 school year. However, in the event that DCPS did not complete the process prior to the beginning of the next school year, DCPS would be obligated to fund A.S.'s attendance at Kingsbury until his educational placement changed. Id. at 27–28.³

On July 27, 2010, plaintiffs sent a letter and supporting documentation to DCPS requesting $62,486.07 for attorneys' fees and costs sustained during the administrative action. Pltfs' SOF at ¶ 7. DCPS responded on August 24, 2010 by authorizing a check for reimbursement for attorneys' fees and costs in the amount of $12,776.85. Id. at ¶ 8.

B. Procedural History

On September 30, 2010, plaintiffs filed their Complaint [dkt. # 1], which alleged that DCPS had not reimbursed any of the attorneys' fees and costs to which plaintiffs were entitled. Complaint ¶ 11. On October 7, 2010, plaintiffs filed an Amended Complaint ...