UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
DONIELLE LONG, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-2130 (GK)
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DISTRICT OF COLUMBIA, et al., )
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Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiffs are D.L., a minor, and his mother, Donielle Long.
On November 13, 2009, Plaintiffs brought suit under 20 U.S.C.
§ 1415(i)(2)(A) of the Individuals with Disabilities Education Act
(“IDEA”) against Defendants District of Columbia, Mayor Vincent
Gray, Acting Attorney General Irvin Nathan, and Acting Chancellor
of the Public Schools Kaya Henderson.1 This matter is before the
Court on Plaintiffs’ Motion for Summary Judgment [Dkt. No. 12] and
Defendants’ Cross Motion for Summary Judgment [Dkt. No. 13]. Upon
consideration of the Motions, Oppositions, Replies, and the entire
record herein, and for the reasons stated below, Plaintiffs’ Motion
for Summary Judgment is granted in part and denied in part, and
1
Pursuant to Fed. R. Civ. P. 25(d), Defendants Gray, Nathan,
and Henderson are automatically substituted for their predecessors
Adrian Fenty, Peter Nickles, and Michelle Rhee.
Defendants’ Motion for Summary Judgment is granted in part and
denied in part.
I. Factual and Procedural Background
D.L. is a thirteen year old student currently living in the
District of Columbia. See Administrative Record (“AR”) at 268. D.L.
began attending Brightwood Elementary School (“Brightwood”) in
kindergarten, transferred to Roots Public Charter School (“Roots
PCS”) for the second through fifth grades, and subsequently re-
enrolled at Brightwood for the 2008-2009 school year. Id. at 4-5.
The District of Columbia Public Schools (“DCPS”) acts as the local
educational agency (“LEA”) for Roots PCS. Id. at 213-14.
In the fall of 2006, a Multi-Disciplinary Team (“MDT”) at
Roots PCS referred D.L. to Dr. Keisha Mack due to concerns about
his academic performance. Id. at 268. On October 10, 2006, Dr. Mack
completed a psycho-educational evaluation of D.L. and diagnosed him
with a learning disorder, a developmental coordination disorder,
and a possible language disorder. Id. at 268, 274. Dr. Mack
recommended that D.L. receive specialized education services to
address his weaknesses in reading and writing. Id. at 274. She also
recommended that an MDT at Roots PCS further assess D.L. with a
speech-language evaluation, an occupational therapy (“OT”)
evaluation, a clinical evaluation, and a behavior intervention plan
2
(“BIP”). Id. DCPS did not complete the recommended tests or provide
special education services to D.L. Id. at 267-78.
On January 22, 2009, D.L.’s mother, concerned about D.L.’s
lack of academic progress at Brightwood, requested DCPS to
reevaluate him for special education eligibility. Id. at 193. She
asked DCPS to perform psycho-educational, clinical psychological,
speech and language, social history, and OT evaluations, as well as
a medical assessment. Id.
On March 20, 2009, Brightwood convened an MDT meeting,
including D.L.’s mother and educational advocate, to determine
D.L.’s eligibility for special education services. Id. at 212, 249.
Over the advocate’s objection, the MDT did not find the 2006
psycho-educational evaluation performed by Dr. Mack conclusive as
to D.L.’s current eligibility for special education services and
decided to withhold an eligibility determination until re-
evaluations were completed. Id. at 212. The MDT stated that D.L.
would be awarded compensatory education services dating back to
October 2006 if he was determined to be eligible for special
education after testing. Id. at 214. The MDT developed a student
evaluation plan (“SEP”), which included comprehensive
psychological, social history, and speech and language evaluations.
Id. at 219. The MDT meeting notes reflected that D.L.’s mother no
3
longer desired that D.L. receive an OT evaluation. Id. at 215. On
April 7, 2009, however, Ms. Long’s counsel sent a letter to DCPS,
stating that the parent’s position on the OT evaluation had been
misstated and that she wanted D.L. to receive the evaluation. Id.
at 228.
On April 9, 2009, Plaintiffs filed a Due Process Complaint.
Plaintiffs alleged that DCPS had (1) violated Child Find procedures
by failing to identify D.L. as a student with a specific learning
disability, develop an Individualized Educational Program (“IEP”),
and/or make special education services available to the student;
and (2) failed to conduct the re-evaluations requested by the
parent and/or failed to conduct re-evaluations in a timely manner
and reconvene an MDT to review evaluation results. Id. at 22.
On April 22, 2009, DCPS completed the speech and language
evaluation of D.L. and determined that the results were not
consistent with a diagnosis of speech and language impairment. Id.
at 64-65. On April 30, 2009, DCPS completed the social history
report, which indicated that D.L. continued to experience academic
difficulties and behavior problems. Id. at 66-68. On May 12, 2009,
DCPS completed the comprehensive psychological evaluation of D.L.,
and the results indicated that D.L. met the DCPS criteria for
special education intervention. Id. at 69-83.
4
On May 18, 2009, DCPS convened a second MDT meeting to review
the 2009 evaluations. Id. at 249. The MDT determined that D.L. was
eligible for special education services as a learning disabled
student. Id. at 251. Accordingly, DCPS developed an IEP consisting
of fifteen hours per week of individualized instruction in and out
of the general education setting, thirty minutes per week of
behavioral support services, and one hour per month of speech and
language consultation services.2 Id. at 252-53. The MDT meeting
notes indicate that the MDT thought that Brightwood would be unable
to implement the IEP. Id. at 253. At the same May MDT meeting, DCPS
refused to provide D.L. with compensatory education services from
2006. Id. at 252-53. DCPS also failed to complete additional
testing that Plaintiffs had requested (e.g. an OT evaluation) or
that Dr. Mack had recommended in her 2006 evaluation of D.L. (e.g.
a BIP). Id. at 252-53.
D.L.’s mother and his educational advocate disagreed with the
proposed IEP and sought a compensatory education plan including one
hour per week of counseling, two hours per week of individualized
tutoring in reading and math, one hour per week of independently
2
The record reveals that page 5 of the IEP, which noted the
30 minutes per week of behavioral support services, was missing
from the parent’s copy of the IEP. Over Plaintiffs’ objection, the
Hearing Officer permitted Defendants to submit page 5 of the IEP
into evidence at the administrative hearing. See AR at 12.
5
provided speech-language therapy, summer camp to address social and
emotional behavior deficits, and a Lindamood Bell assessment. Id.
at 259. The parent and advocate also requested a BIP, which would
have required completion of a functional behavioral assessment
(“FBA”), and an OT evaluation. Id. at 256. The MDT declined to
implement the suggested additions to the IEP. Id. at 253.
On June 4, 2009, Plaintiffs filed an Amended Due Process
Complaint. Plaintiffs supplemented their initial Complaint with
allegations that DCPS failed to (1) develop an appropriate IEP;
(2)provide an appropriate placement for D.L.; (3) complete an OT
evaluation; (4) conduct a BIP/FBA; and (5) provide D.L. with
compensatory education services. Id. at 103-104.
On August 5, 2009, an administrative hearing was held. Id. at
126. Upon consideration of the evidence and testimony presented,
the Hearing Officer issued a decision and order on August 15, 2009
dismissing Plaintiffs’ Amended Complaint with prejudice. Id. at 11.
The Hearing Officer determined that Plaintiffs had failed to show
that Defendants violated the IDEA. Id.
Subsequently, on November 13, 2009, Plaintiffs brought a civil
action in this Court challenging the Hearing Officer’s decision
pursuant to 20 U.S.C. § 1415(i)(2)(A). On March 4, 2010, Plaintiffs
filed a Motion for Summary Judgment [Dkt. No. 12]. On April 2,
6
2010, Defendants filed a combined Cross-Motion for Summary Judgment
and Opposition to Plaintiffs’ Motion [Dkt No. 13]. On April 24,
2010, Plaintiffs filed a combined Reply to Defendant’s Opposition
and Opposition to Defendant’s Cross-Motion [Dkt. No. 16]. On May
17, 2010, Defendants filed a Reply to Plaintiffs’ Opposition [Dkt.
No. 17].
II. Standard of Review
Summary judgment will be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with any affidavits or declarations, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
A fact is “material” if it might affect the outcome of the action
under the governing law. Anderson v. Liberty Lobby, Inc. 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986). The nonmoving party then must “go beyond the
pleadings and by [its] own affidavits, or by depositions, answers
to interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.” Id. at 324
(internal quotations omitted). See Laningham v. U.S. Navy, 813 F.2d
7
1236, 1242 (D.C. Cir. 1987) (nonmoving party has affirmative duty
“to provide evidence that would permit a reasonable jury to find”
in its favor).
In deciding a motion for summary judgment, “the court must
draw all reasonable inferences in favor of the nonmoving party, and
it may not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Ultimately, the court must
determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Liberty Lobby, 477 U.S.
at 251-52.
III. Analysis
A. IDEA Framework
Congress enacted the IDEA to ensure that children with
disabilities have access to “a free appropriate public education
that emphasizes special education and related services designed to
meet their unique needs and prepare them for employment and
independent living.” 20 U.S.C. § 1400(d)(1)(A) (2005). School
districts must ensure that “all children with disabilities residing
in the State . . . who are in need of special education and related
services” are identified. Branham v. Gov’t of the District of
8
Columbia, 427 F.3d 7, 8 (D.C. Cir. 2005) (quoting 20 U.S.C. §
1412(a)(3)(A)). Once such children are identified, a “‘team’
including the child’s parents and select teachers, as well as a
representative of the local educational agency with knowledge about
the school's resources and curriculum, develops an ‘individualized
education program,’ or ‘IEP,’ for the child.” Branham, 427 F.3d at
8. “[T]he IEP must, at a minimum, ‘provid[e] personalized
instruction with sufficient support services to permit the child to
benefit educationally from that instruction.’” Id. (citing Bd. of
Educ. Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
203, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)).
State educational agencies and LEAs receiving federal
assistance under the IDEA must institute procedural safeguards,
including providing parents of a disabled child “an opportunity to
present complaints with respect to any matter relating to the
identification, evaluation, or educational placement” of their
child. 20 U.S.C. §§ 1415(a), (b)(6). After parents make such a
complaint, they are entitled to “an impartial due process hearing”
conducted by the agency. Id. § 1415(f).
During a due process hearing held pursuant to the IDEA, “DCPS
bears the burden of proof, based solely upon the evidence and
testimony presented at the hearing, that the action or proposed
9
placement is adequate to meet the education needs of the student.”
D.C. Mun. Reg. § 3030.3; see also Scorah v. District of Columbia,
322 F. Supp. 2d 12, 14 (D.D.C. 2004).
Any party aggrieved by the findings or decision of a hearing
officer may bring a civil action in state or federal district court
to obtain appropriate relief. 20 U.S.C. § 1415(i)(2)(A). The party
challenging a hearing officer’s decision in federal court carries
the burden of proof by a preponderance of the evidence. 20 U.S.C.
§ 1415(i)(2)(C); Angevine v. Smith, 959 F.2d 292, 295 (D.C. Cir.
1992); Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988).
While the court may make an independent determination, “it
must also give ‘due weight’ to the administrative proceeding and
afford some deference to the expertise of the hearing officer and
school officials responsible for the child’s education.” Lyons v.
Smith, 829 F. Supp. 414, 418 (D.D.C. 1993). When neither party has
requested the court to hear additional evidence, the “motion for
summary judgment is simply the procedural vehicle for asking the
judge to decide the case on the basis of the administrative
record.” Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir.
1997).
Although the courts should not “substitute their own notions
of sound educational policy for those of the school authorities
10
which they review,” Rowley, 458 U.S. at 206, “given the district
court's authority to ‘hear additional evidence at the request of a
party’ and ‘bas[e] its decision on the preponderance of the
evidence,’ IDEA ‘plainly suggest[s] less deference than is
conventional’ in administrative proceedings.” Reid v. District of
Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005)(internal citations
omitted).
The role of a reviewing court under the IDEA is two-fold.
First, it must determine whether DCPS has complied with the
procedural requirements of the IDEA. Rowley, 458 U.S. at 206.
Second, it must determine whether the “individualized educational
program developed through the Act’s procedures [is] reasonably
calculated to enable the child to receive educational benefits.”
Id. at 207.
In this case, Plaintiffs challenge the Hearing Officer’s
decision that DCPS provided D.L. with a Free Appropriate Public
Education (“FAPE”) on five grounds. Plaintiffs argue that (1) DCPS
violated its Child Find obligations by failing to timely identify
D.L. as a child with a learning disability; (2) DCPS failed to
develop an appropriate IEP; (3) DCPS failed to provide an
appropriate placement; (4) DCPS failed to evaluate D.L. in all
suspected areas of disability, including failure to conduct an OT
evaluation and a BIP/FBA; and 5) DCPS failed to provide D.L. with
11
necessary compensatory education. See generally Pls.’ Mot. Each of
these claims will be addressed in turn.
B. DCPS’ Compliance With Its Child Find Obligations
Plaintiffs allege that DCPS failed to comply with its “Child
Find” obligations. Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”) 6. The
IDEA requires LEAs to have a comprehensive Child Find system to
ensure that all children who are in need of early intervention or
special education services are located, identified, and referred
appropriately. See 20 U.S.C. § 1412(a)(3). Child Find is DCPS’
affirmative obligation under the IDEA: “As soon as a child is
identified as a potential candidate for services, DCPS has the duty
to locate that child and complete the evaluation process. Failure
to locate and evaluate a potentially disabled child constitutes a
denial of FAPE.” N.G. v. District of Columbia, 556 F. Supp. 2d 11,
16 (D.D.C. 2008). DCPS must conduct initial evaluations to
determine a child’s eligibility for special education services
“within 120 days from the date that the student was referred [to
DCPS] for an evaluation or assessment.” D.C. Code § 38-2561.02(a).
The parties disagree as to when DCPS learned of the October
2006 evaluation that diagnosed D.L. with learning disabilities and
recommended that he receive special education services. Plaintiffs
argue that DCPS had notice of the evaluation prior to the MDT
12
meeting of March 20, 2009. Pls.’ Mot. 6-7. In support of this
argument, Plaintiffs note that D.L. was referred for the October
2006 evaluation by the MDT at Roots PCS and that DCPS was the LEA
for Roots PCS. Id. at 6. Plaintiffs also point out that DCPS
promised them at the March 20, 2009, MDT meeting that D.L. would
receive compensatory education from October 2006 if he was found
eligible for special education, indicating that DCPS was aware of
the October 2006 evaluation prior to the 2009 meeting. Id. at 7; AR
at 61. In addition, Plaintiffs point out that Evan Murray, an LEA
Representative and DCPS Placement Specialist, apologized for DCPS’
delay in following through on the referral process, stating at the
March 2009 MDT meeting that “DCPS will work diligently” to complete
the process initiated in October 2006. Pls.’ Mot. 7; AR at 60.
In response, Defendants assert that Plaintiffs did not inform
DCPS of D.L.’s suspected learning disability until the March 20,
2009 MDT meeting. Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) 12. At
that time, Defendants state that their Child Find obligations were
triggered and that DCPS conducted the evaluation process in a
timely manner. Id. at 14. Defendants further argue that, even if
Plaintiffs can show that DCPS had notice of the 2006 evaluation
prior to the March 2009 MDT meeting, Plaintiffs are not entitled to
relief because they did not demonstrate any harm resulting to D.L.
from DCPS’ failure to timely follow up on the 2006 evaluation. Id.
13
at 12. Defendants contend that Plaintiffs cannot demonstrate any
harm to D.L. because the MDT took the October 2006 evaluation into
consideration in March 2009 and May 2009 when it developed D.L.’s
SEP and IEP. Id. at 14.
The Hearing Officer agreed with Defendants, concluding that
Plaintiffs only put DCPS on notice of the October 2006 evaluation
at the March 20, 2009 MDT meeting. AR at 10. The Hearing Officer
then found that DCPS completed and reviewed all evaluations deemed
necessary by May 18, 2009, within the 120-day statutory deadline.
Id. The Hearing Officer further concluded that the MDT which met in
May 2009 found D.L. eligible for special education and developed an
IEP for the student, in accordance with the IDEA’s requirements.
Id.
Although the Court must give “due weight” to a Hearing
Officer’s decision, “a decision without reasoned and specific
findings deserves little deference.” Kerkam v. Superintendent, D.C.
Pub. Schs., 931 F.2d 84, 86-87 (D.C. Cir. 1991) (internal
quotations omitted). Here, the Hearing Officer found that
“[p]etitioner offered no evidence that DCPS was put on notice of
Dr. Mack’s evaluation prior to the MDT meeting on March 20, 2009.”
AR at 10 (emphasis added). This is plainly untrue.
14
The record discloses that DCPS was the LEA for Roots PCS when
the school referred D.L. for a psycho-educational evaluation in
2006. Id. at 213-14; 268. In addition, the March 2009 MDT meeting
notes contain an apology from DCPS to D.L.’s mother for “not
following through on the referral process,” indicating that DCPS
was well aware of D.L.’s suspected learning disability prior to
that meeting. Id. at 60. In fact, at that meeting, DCPS conceded
that “this process began back in 2006.” Id. at 61. Lastly, DCPS
promised compensatory education services for D.L. from 2006 if D.L.
was found to be eligible for special education services, indicating
DCPS’ acknowledgment that the referral process was initiated at the
time of Dr. Mack’s evaluation. Id. The Hearing Officer’s decision
references none of this evidence and fails to explain why the 2006
referral for evaluation did not trigger DCPS’ Child Find
obligations.
Defendants admit that, “the evidence might be argued to
suggest that the finding by the Hearing Officer that DCPS was not
on notice was incorrect,” but argue that “such an arguable error
was inconsequential because Plaintiff failed to demonstrate any
resulting substantive harm to D.L.” Defs.’ Mot. 12. Defendants’
position is unpersuasive. When DCPS finally followed through on its
Child Find obligations, the MDT ordered special education services
15
for D.L. See AR at 251. Meanwhile, D.L. lacked access to the
special education curriculum from 2006 until the MDT developed an
IEP in May 2009, well after the 120-day statutory time period for
carrying out Child Find obligations. See id. at 252-53. Surely,
one cannot seriously argue that deprivation of special education
services for a period of three years has not harmed a child.
Defendants also suggest that DCPS received notice of D.L.’s
suspected learning disability only when D.L.’s mother “physically
presented [DCPS] a copy of the 2006 evaluation” at the March 2009
MDT meeting. Defs.’ Mot. 14. However, DCPS’ Child Find obligations
are triggered “as soon as a child is identified as a potential
candidate for services,” and a parent does not need to request the
LEA to evaluate a child. See N.G., 556 F. Supp. 2d at 16, 25. D.L.
was located and identified as a potential special education
candidate in October 2006, triggering DCPS’ Child Find obligations
at that time. Thus, Plaintiffs have shown by a preponderance of the
evidence that the Hearing Officer’s decision was erroneous and that
DCPS denied D.L. a FAPE by delaying determination of D.L.’s special
education eligibility.
C. DCPS’ Development of an Appropriate IEP
Plaintiffs allege that D.L.’s IEP was inappropriate because it
contained (1) no social/emotional goals and objectives; and (2) an
insufficient amount of specialized instruction. Pls.’ Mot. 19.
16
Defendants contend that the IEP affords an appropriate amount and
type of special education services for D.L. Defs.’ Mot. 17.
Under the IDEA, LEAs must develop a detailed IEP for every
child with a disability. 20 U.S.C. § 1414(d)(2)(A). The Supreme
Court has explained that an IEP must be “reasonably calculated to
enable the child to receive educational benefits,” Rowley, 458 U.S.
at 207. The IEP must be tailored to enable the child “to achieve
passing marks and advance from grade to grade.” Id. at 203.
The Hearing Officer found that the IEP was appropriate for
D.L. First, the Hearing Officer noted that Defendants’ copy of the
IEP contained a page missing from Plaintiffs’ copy. AR at 12. This
missing page included social/emotional goals and provided for 30
minutes of weekly instruction focusing on social/emotional
objectives. Id.3 Second, the Hearing Officer found that the amount
of specialized instruction proposed in the IEP (fifteen hours per
week) was appropriate because neither Dr. Mack, who conducted the
initial October 2006 evaluation, nor Mr. Terrence Beason, the
school psychologist, recommended full-time specialized instruction
for D.L. Id.
3
As noted earlier, the Hearing Officer allowed Defendants to
submit the missing page of the IEP into evidence over Plaintiffs’
objection. See supra p. 3, note 1.
17
While an IEP under the IDEA must be reasonably calculated to
furnish educational benefits to the child and must be developed
with parental involvement, it does not have to maximize the
potential of a disabled child or include all the wishes of a
child’s parents. See Rowley, 458 U.S. at 189-90; Kerkam v.
McKenzie, 862 F.2d 884, 886 (D.C. Cir. 1988) (“[P]roof that loving
parents can craft a better program than a state offers does not,
alone, entitle them to prevail under the Act.”). Under the IDEA,
parental concerns are just one factor to be considered by the IEP
team when developing the IEP. 20 U.S.C. § 1414 (d)(3)(A)(ii).
In this case, the MDT’s failure to include full-time
specialized instruction in the IEP does not amount to denial of a
FAPE. The record indicates that none of the educational specialists
who evaluated D.L. thought that his learning disabilities were
severe enough to warrant full-time specialized instruction. In the
October 2006 evaluation, Dr. Mack recommended that D.L. receive
specialized instruction only in reading and writing. AR at 274. Mr.
Beason also found that D.L. was facing his greatest academic
difficulty in reading. Id. at 77. Accordingly, it was appropriate
for the Hearing Officer to conclude that fifteen hours per week of
specialized instruction were “reasonably calculated to enable
[D.L.] to receive educational benefits.” See Rowley, 458 U.S. at
207. The record also supports the Hearing Officer’s conclusion that
18
the missing page of the IEP discussed social/emotional goals. AR
Tr. at 48-52. Thus, Plaintiffs have failed to meet their burden of
showing by a preponderance of the evidence that DCPS violated IDEA
by issuing an inappropriate IEP.
D. DCPS’ Selection of an Appropriate Placement
Plaintiffs assert that Brightwood was an inappropriate
placement for D.L. for two reasons: (1) Brightwood was unable to
implement the IEP; and (2) D.L.’s parent was not permitted to
participate in the MDT’s placement determination. Pls.’ Mot. 10.
Defendants reply that Brightwood can implement the IEP and that Ms.
Long and D.L.’s educational advocate participated in the placement
decision. Defs.’ Mot. 19-21.
The Hearing Officer found that Brightwood was an appropriate
placement. Barbara Looper, the special education coordinator for
DCPS, noted at the May 2009 MDT meeting that “[t]his team will have
to reconvene to discuss change of placement. School is unable to
implement IEP.” AR at 253. At the administrative hearing, however,
Ms. Looper testified that the school would in fact be able to
implement the IEP, and she could not explain why she had said
otherwise at the MDT meeting. AR Tr. at 94-96. The Hearing Officer
credited Ms. Looper’s hearing testimony and decided that Brightwood
was an appropriate placement.
19
Under the IDEA, LEAs must make proper placement decisions
involving parental participation to ensure that a disabled child
has access to a FAPE. 20 U.S.C. § 1415(b)(1). The parent must have
a full, meaningful opportunity to participate in the placement
decision. A.I. ex rel. Iapalucci v. District of Columbia, 402 F.
Supp. 2d 152, 159 (D.D.C. 2005). LEAs must provide a placement for
a disabled child that furnishes a “basic floor of opportunity” and
that allows him to “benefit from special education.” Rowley, 458
U.S. at 187, 201. This consists of “access to specialized
instruction and related services which are individually designed to
provide educational benefit to the handicapped child.” Id.
The record supports the Hearing Officer’s decision. Plaintiffs
have not shown that the parent’s participation in the meetings was
restricted in any way. Ms. Long and the educational advocate
participated in the March 2009 and May 2009 MDT meetings, where
D.L.’s placement at Brightwood was discussed. AR at 45, 249.
Plaintiff’s claim that she was denied an opportunity to fully
participate in the placement decision has no factual support.
First of all, she and D.L.’s educational advocate attended every
MDT meeting for D.L. AR at 249. Second, Plaintiff never claimed
she was denied an opportunity to “participate” in the placement
decision in her due process complaint. AR at 110-111. Rather,
20
Plaintiff claimed that the placement itself was inappropriate. Id.
This is the claim that was litigated below, not whether she was
denied an opportunity to participate. As such, Plaintiff cannot
now raise issues that were not litigated below. 20 U.S.C.
§ 1415(i)(2); Cox v. Jenkins, 878 F.2d 414, 420 (D.C. Cir. 1989);
Shaw v. District of Columbia, 238 F.Supp.2d 127, 135 (D.D.C. 2002)
(concluding that, under IDEA’s judicial review provisions, a
district court cannot address an issue that was not first presented
to the hearing officer).
In addition, the Hearing Officer considered testimony from
both parties and credited Ms. Looper’s testimony regarding
Brightwood’s capacity to implement the IEP. While the court is free
to consider additional evidence submitted by the parties, it must
give “‘due weight’ to the administrative proceedings and afford
some deference to the expertise of the hearing officer and school
officials responsible for the child's education.” Lyons, 829 F.
Supp. at 418 (quoting Rowley, 458 U.S. at 205); see also Shaw, 238
F. Supp. 2d at 134. Plaintiffs have voiced disagreement with the
Hearing Officer’s decision to credit Ms. Looper’s testimony, but
they have not shown by a preponderance of the evidence that
Brightwood is incapable of providing fifteen hours per week of
21
specialized instruction for D.L. and administering the other
services included in the IEP.4 See Pls.’ Mot. 10-11.
E. DCPS’ Evaluations of D.L.
Plaintiffs contend that DCPS failed to evaluate D.L. in all
suspected areas of disability, thereby depriving D.L. of his right
to receive a FAPE under the IDEA, since no FAPE can be provided
without the appropriate evaluations. Pls.’ Mot. 8. Specifically,
Plaintiffs argue that DCPS should have formulated a BIP, which
would have required completion of an FBA.5 Id. at 7.
4
The hearing transcript indicates that Brightwood has resource
rooms and other features of an inclusion setting to implement the
IEP. AR Tr. at 95. In addition, DCPS asserted at the hearing that
“the level of staffing at Brightwood will be significantly
increased for the 2009-2010 [school year] and that it will be able
to meet Petitioner’s educational needs.” AR at 5.
5
Plaintiffs also argue that the Hearing Officer was incorrect
in determining that DCPS’ failure to conduct an OT evaluation did
not constitute a violation of the IDEA. Pls.’ Mot. 7. Defendants
now state that Plaintiffs’ “request for an occupational therapy
(OT) evaluation is moot because it was ordered by the MDT.” Defs.’
Reply 5.
If the OT evaluation has not been completed, it should be.
Although the March 2009 MDT meeting notes reflect that D.L.’s
mother initially agreed with DCPS that an OT evaluation was
unnecessary, Ms. Long’s attorney sent a follow up letter to DCPS
that put Defendants on notice that she in fact wanted D.L. to
receive an OT evaluation. AR at 48, 228. Moreover, Plaintiffs have
shown that an OT evaluation was necessary because of D.L.’s “below
average” performance on the Beery Developmental Test of Visual
Motor Integration (“Beery Test”). AR Tr. at 23. Dr. Mack’s 2006
evaluation references the Beery Test results and recommends an OT
evaluation to assess D.L.’s visual-motor integration skills. AR at
268, 274. The more recent May 12, 2009 comprehensive psychological
(continued...)
22
The Hearing Officer determined that the educational advocate,
Lori Rodriguez, did not request a BIP/FBA on Plaintiffs’ behalf and
that Plaintiffs had not presented evidence that behavioral problems
during the 2008-2009 school year had an adverse impact on D.L.’s
academic performance. AR at 11. However, Plaintiffs insist that Ms.
Rodriguez did request a BIP/FBA. Pls.’ Mot. 7. Indeed, Defendants
concede that a BIP/FBA was requested but claim that the request
came too late, after the May 2009 MDT meeting. Defs.’ Mot. 16;
Defs.’ Reply 5. Plaintiffs argue that a BIP/FBA was necessary
because the March 2009 and May 2009 MDT meeting notes reflect that
D.L.’s behavior problems were affecting his academic performance.
See Pls.’ Mot. 7; AR at 60. They further assert that DCPS knew of
D.L.’s behavioral issues because it had been providing D.L. thirty
minutes of weekly counseling to address anger management and coping
problems. AR at 46, 48.
Defendants claim that D.L.’s behavioral issues were discussed
at length during the MDT meetings before the BIP/FBA was rejected.
Id. at 17. Defendants further argue that it is only the personal
opinion of Plaintiffs and Ms. Rodriguez that the BIP/FBA should be
administered. Id.
(...continued)
evaluation also mentions the Beery Test results. Id. at 70. Thus,
Plaintiffs have shown by a preponderance of the evidence that the
Hearing Officer was incorrect in concluding that there was no basis
for an OT evaluation.
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The IDEA does not require LEAs to administer every test
requested by a parent or educational advocate. Rather, to ensure
that a child with a disability receives a FAPE, an LEA must use “a
variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information.” See 20 U.S.C.
§ 1414 (b)(2)(A). In the case of a child whose behavior impedes his
or her learning or that of others, the IEP team must consider “when
appropriate, strategies, including positive behavioral
interventions, strategies, and supports to address that behavior.”
Thomas v. District of Columbia, 407 F. Supp. 2d 102, 106 (D.D.C.
2005); 20 U.S.C. § 1414 (d)(3)(B)(I).
The failure to complete all necessary evaluations results in
a substantive denial of FAPE which results in harm to the disabled
child. “[I]n the absence of necessary and appropriate evaluations
the district cannot develop a program that is tailored to the
student’s unique needs and reasonably calculated to enable him to
receive educational benefits. The evaluation information is needed
in order to fashion a legally compliant and educationally
beneficial program. Without this data the district court cannot
properly educate the student and the hearing officer cannot do
equity. As such, an evaluation’s primary role is to contribute to
the development of a sound IEP.” Sitka Borough Educational Agency,
44 IDELR 268 (July 2005).
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Plaintiffs have met their burden of proof with regard to the
BIP/FBA. In her initial evaluation of D.L., Dr. Mack recommended a
BIP/FBA. AR at 274. As noted earlier, the record also discloses
that D.L.’s behavior problems seriously affected his academic
performance during the 2008-2009 school year. D.L.’s teacher, a
member of the MDT, commented at the March 2009 meeting that
“[D.L.’s] behavior impacts his function in the classroom.” Id. at
46. Subsequently, at the May 2009 MDT meeting, various teachers
remarked that D.L.’s behavior “has declined” and that D.L. was
involved in several fights at school. Id. at 250.
Finally, DCPS’ provision of counseling to D.L. before his
eligibility for special education services was determined indicates
that DCPS believed that D.L.’s behavioral issues were impeding his
learning ability. Indeed, Defendants appeared to concede at the
hearing that a BIP/FBA was warranted: “DCPS is more than willing to
. . . ensure that an FBA is put into place for the student.” AR Tr.
at 14. In light of D.L.’s obvious behavioral issues, it is
important to note that “the IDEA . . . recognizes that the quality
of a child's education is inextricably linked to that child's
behavior,” and “[an] FBA is essential to addressing a child's
behavioral difficulties, and, as such, it plays an integral role in
the development of an IEP.” Harris v. District of Columbia, 561 F.
25
Supp. 2d 63, 68 (D.D.C. 2008). DCPS’ failure to complete a BIP/FBA
constitutes denial of a FAPE.
F. D.L.’s Entitlement to Compensatory Education
Plaintiffs contend that D.L. is entitled to receive
compensatory education services from October 2006, when D.L.’s
initial evaluation was completed, until May 2009, when his IEP was
developed. Pls.’ Mot. 11. Plaintiffs contend that D.L.’s IQ dropped
by four points during this three year period and, as discussed,
supra, that he experienced academic and behavioral difficulties due
to lack of a special education program. Id. at 12. Plaintiffs also
argue that DCPS promised them that D.L. would receive compensatory
education from 2006 at the March MDT meeting. Id. Defendants reply
that Plaintiffs have not shown what harm D.L. suffered from DCPS’
alleged failure to act in 2006 and have not shown what services are
necessary to compensate for any purported harm. Defs.’ Mot. 22.
Compensatory education is an equitable remedy for the denial
of a FAPE to a child with a learning disability. Reid, 401 F.3d at
523. Under the theory of compensatory education, “courts and
hearing officers may award educational services . . . to be
provided prospectively to compensate for a past deficient program.”
Id. at 522. (internal quotations omitted). Designing a compensatory
education remedy requires “a fact-specific exercise of discretion
by either the district court or a hearing officer.” Reid, 401 F.3d
26
at 524; see also Henry v. District of Columbia, ---F. Supp. 2d---,
2010 WL 4568841, at *3 (D.D.C. Nov. 12, 2010). In either case, “the
inquiry must be fact-specific and, to accomplish IDEA's purposes,
the ultimate award must be reasonably calculated to provide the
educational benefits that likely would have accrued from special
education services the school district should have supplied in the
first place.” Reid, 401 F.3d at 524. To aid the court or hearing
officer’s fact-specific inquiry, “the parties must have some
opportunity to present evidence regarding [the student’s] specific
educational deficits resulting from his loss of FAPE and the
specific compensatory measures needed to best correct those
deficits.” Id. at 526. DCPS may be required to “offer proof that
the placement compensated for prior FAPE denials in addition to
providing some benefit going forward.” Id. at 525.
This Court has determined that D.L. was denied a FAPE due to
DCPS’ failure to comply with Child Find obligations and conduct
necessary evaluations. Therefore, the Court will remand the case to
a Hearing Officer to craft an appropriate compensatory education
remedy. See Henry, ---F. Supp. 2d---, 2010 WL 4568841, at *3.
IV. Conclusion
For the reasons set forth above, Plaintiffs’ Motion for
Summary Judgment is granted in part and denied in part and
Defendants’ Motion for Summary Judgment is granted in part and
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denied in part. This case is remanded to the administrative hearing
officer to craft an appropriate compensatory education remedy and
order appropriate tests, including an FBA, for D.L. An Order shall
accompany this Memorandum Opinion.
/s/
March 23, 2011 Gladys Kessler
United States District Judge
Copies to: Attorneys on record via ECF
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