Edward M.-R. v. Dist. of Columbia

Full title: EDWARD M.-R., by and through his Parents, T.R.-M. and E.M., Plaintiffs, v…

Court: United States District Court, District of Columbia

Date published: Sep 29, 2023

660 F. Supp. 3d 82 (D.D.C. 2023)

Opinion

Civil Action No. 21-177 (RDM)

2023-09-29

EDWARD M.-R., BY AND THROUGH his Parents, T.R.-M. and E.M., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Caitlin E. McAndrews, McAndrews Law Offices, PC, Alexandria, VA, for Plaintiffs. Veronica A. Porter, Office of the Attorney General for D.C., Washington D.C., DC, for Defendant.

RANDOLPH D. MOSS, United States District Judge

Caitlin E. McAndrews, McAndrews Law Offices, PC, Alexandria, VA, for Plaintiffs.

Veronica A. Porter, Office of the Attorney General for D.C., Washington D.C., DC, for Defendant.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Plaintiffs T.R.-M. and E.M. bring this action on behalf of their son, Edward M.-R., who has multiple disabilities, including Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder ("ADHD"), to challenge the adequacy of the education that Edward received while attending District of Columbia Public Schools ("DCPS"). Specifically, they contend that the Individualized Educational Programs ("IEPs") prepared on Edward's behalf were "insufficient to appropriately meet his needs for several years," Dkt. 18-1 at 3, and that, as a result, he was deprived of the free and appropriate public education ("FAPE") to which he was entitled under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

After a hearing officer issued a determination denying Plaintiffs' administrative relief, Plaintiffs filed this suit. Both parties moved for summary judgment, Dkt. 29, Dkt. 35, and Magistrate Judge G. Michael Harvey, having been referred the case, issued a thorough and well-reasoned Report and Recommendation ("R&R"), recommending that the Court grant summary judgment to the District of Columbia on all claims, Dkt. 43. Plaintiffs objected to the R&R on several grounds, and it is those objections that are before the Court. Dkt. 44. For the reasons that follow, the Court will ADOPT the R&R and will GRANT summary judgment in favor of the District on all claims. I. BACKGROUND

A. Statutory Background

Congress enacted the IDEA to "ensure that all children with disabilities have available to them a free appropriate public education." 20 U.S.C. § 1400(d)(1)(A). To that end, "the IDEA mandates that states receiving federal educational funding, including the District of Columbia, ... establish 'policies and procedures to ensure,' among other things, that a 'free appropriate public education' ('FAPE') is available to children with disabilities." Herrion v. District of Columbia, No. 20-3470, 2023 WL 2643881, at *1 (D.D.C. Mar. 27, 2023) (quoting 20 U.S.C. § 1412(a)). The guarantee of a FAPE includes a promise to provide "special education and related services designed to meet [a child's] unique needs and [to] prepare [the child] for further education, employment, and independent living." Id. (quoting 20 U.S.C. § 1400(d)(1)(A)).

Mechanically, the provision of a FAPE works through the creation and administration of an "individualized education program," or "IEP." 20 U.S.C. § 1414(d)(2)(A). The IEP is "the centerpiece of the statute's education delivery system for disabled children." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). A child who is eligible for special education and services under the IDEA receives an IEP that sets forth "a comprehensive statement of the educational needs of [the] ... child." Leonard v. McKenzie, 869 F.2d 1558, 1560 n.1 (D.C. Cir. 1989) (quoting Sch. Comm. of the Burlington v. Dept. of Educ., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). "Prepared by an 'IEP Team'—composed of the child's parents or guardians, the child's teacher, a representative of a local educational agency and, whenever appropriate, the child"—an IEP "sets out the child's present academic and functional performance, establishes measurable academic and functional goals for the child, and states the special education and related services that will be provided for the child." Middleton v. District of Columbia, 312 F. Supp. 3d 113, 121 (D.D.C. 2018) (citing 20 U.S.C. § 1414(d)(1)(A), (B)). "The IEP Team must review the child's IEP at least annually and may revise it as appropriate to address the child's anticipated needs." 20 U.S.C. § 1414(d)(4)(A).

"To assist in determining whether a student 'is a child with a disability' and in developing 'the content of the child's [IEP],' a local educational agency must conduct an 'initial evaluation' using 'a variety of assessment tools and strategies to gather relevant functional, development, and academic information, including information provided by the parent, that may assist in [making the relevant] determin[ations].'" Herrion, 2023 WL 2643881, at *2 (alterations in original) (quoting 20 U.S.C. § 1414(b)(2)(A)). "After the initial evaluation, each child must be reevaluated if the local educational agency determines it is necessary or if the child's parents or teacher request such a reevaluation." Id. (citing 20 U.S.C. § 1414(a)(2)(A)). "The reevaluation shall take place 'not more frequently than once a year, unless the parent and the local educational agency agree otherwise' and must be done 'at least once every three years' unless the parents and local educational agency agree it is unnecessary." Id. (citing 20 U.S.C. § 1414(a)(2)(B)).

The purpose of the IEP is to ensure that the child's substantive right to a FAPE is satisfied. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 201-04, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). "[A] child has received a FAPE, if the child's IEP sets out an educational program that is 'reasonably

calculated to enable the child to receive educational benefits.'" Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 394, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017) (quoting Rowley, 458 U.S. at 207, 102 S.Ct. 3034). In other words, "[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., 580 U.S. at 399, 137 S.Ct. 988. "To the maximum extent appropriate," the school must educate the child in the "[l]east restrictive environment," which generally means "with children who are not disabled." 20 U.S.C. § 1412(a)(5)(A).

If the public agency fails to provide a child with a FAPE, the child's parents may file an administrative complaint, often referred to as a "due process complaint." Herrion, 2023 WL 2643881, at *3 (citing 20 U.S.C. § 1415(b)(6)(B), (c)(2)). "Whenever [such] a complaint has been received ... [,] the parents ... shall have an opportunity for an impartial due process hearing" conducted by the state or local educational agency. 20 U.S.C. § 1415(f)(1)(A). "At that hearing, the parties may present evidence and elicit expert testimony about the child's educational and functional needs." Herrion, 2023 WL 2643881, at *3 (quoting 20 U.S.C. § 1415(h)(2)). In general, the hearing officer's decision "shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education," although parents may also assert claims based on procedural violations. 20 U.S.C. § 1415(f)(3)(E)(i). Parents "aggrieved by" the hearing officer's decision may seek review in the appropriate federal district court, "without regard to the amount in controversy," as Edward's parents have done here. Id. § 1415(i)(2)(A); see also Calloway v. District of Columbia, 216 F.3d 1, 3 (D.C. Cir. 2000).

B. Factual Background

Judge Harvey's R&R provides a thorough description of Edward's educational history and the events that led to this case. See Dkt. 43. The Court need not repeat that exposition here and, instead, summarizes only those facts relevant to Plaintiffs' objections to his R&R.

Edward was diagnosed with Autism Spectrum Disorder as a toddler and has received special education services from the District of Columbia ever since. Dkt. 15-2 at 18 (A.R. 63). He has also been diagnosed with ADHD. See Dkt. 16-1 at 30 (A.R. 226).

In the fall of 2016, the DCPS performed a "psychological evaluation" of Edward as part of the triennial review process mandated by the IDEA. Id. at 1 (A.R. 197). That report describes Edward as "display[ing] variable below grade level academic achievement, Extremely Low cognitive skills, communications difficulties, social interaction/social skills deficits, atypical and stereotyped behaviors, and significantly distracted and off-task learning behavior." Id. at 30 (A.R. 226). The report also "notes marked impairment in age-appropriate communicative functioning, marked impairment in age-appropriate social functioning, and marked impairment in age-appropriate personal functioning." Id. Edward's parents and teacher reported that he "displays significant weaknesses in ... initiating and sustaining attention, inhibiting impulsive responses, sustaining working memory, learning, planning, and organizing his environment/materials, difficulty with friendships, and poor/limited social skills." Id.

The evaluator recommended "continued placement in a small structured academic and behavioral program that has a low

student-to-teacher ratio and employs multiple presentation forms to include visual, auditory, kinesthetic and tactile modalities." Id. at 31 (A.R. 227). The evaluator also recommended that emphasis should be placed on increasing both his "functional literacy skills" as well as his "basic math skills (i.e., telling time, addition/subtraction, using money)." Id. And, in light of Edward's difficulties with attention and working memory, the evaluator recommended "provid[ing] modeling and frequent repetition of material whenever possible" and "[p]roviding a visual chart of steps required to complete a task [to] serve as an external memory support." Id.

During the 2017-2018 school year, Edward was enrolled as a fifth-grade student at Hearst Elementary School. See Dkt. 16-3 at 58 (A.R. 320). Edward's IEP for that year noted that he "received specialized instruction in the intermediate self-contained Communication and Education Support ("CES") classroom.," id. at 61 (A.R. 323), and directed that Edward receive, outside of the general education environment, 21.25 hours per week of specialized instruction, 4 hours per month of speech-language pathology, 2 hours per month of occupational therapy, 30 minutes per month of consultative services in occupational therapy, and 30 minutes per month of consultative services relating to behavioral support, id. at 76 (A.R. 338). Edward's final IEP Progress Report for that school year, dated June 8, 2018, reports that he had mastered his written expression goal and one of his math goals, two of his Motor Skills/Physical Development goals had not been introduced, and he was progressing on the rest. Dkt. 16-4 at 18-24 (A.R. 362-68).

The following school year, Edward moved to Deal Middle School for sixth grade. See id. at 33 (A.R. 377). His first IEP Progress Report at this new school, which still reported on Edward's achievement of the goals set forth in his 2017 IEP (his 2018 IEP had not yet been formulated), reflected that he had mastered the written expression goal (mirroring the prior Progress Report's results) and one of the reading goals. Id. at 39-43 (A.R. 377-82). The report also noted that he was progressing on both math goals (including the one he had been reported to have mastered at the end of the 2017-2018 school year), his Emotional, Social, and Behavioral Development goal and one of his Motor Skills/Physical Development goals. Id.

Edward's IEP team met to formulate his 2018 IEP on November 27, 2018. Id. at 54 (A.R. 398). The resulting 2018 IEP provided that Edward would continue to receive specialized instruction in the CES classroom and that he would now have a dedicated aide at Deal Middle School. Id. at 67 (A.R. 411). As did the 2017 IEP, the 2018 IEP provided that Edward would receive, outside of the general education environment, 21.25 hours per week of specialized instruction, 2 hours per month of occupational therapy, 30 minutes per month of consultative occupational therapy, and 30 mins per month of behavioral support services. Id. at 72 (A.R. 416). Edward's speech language pathology services were reduced from the 4 hours per month he received pursuant to his 2017 IEP to 3 hours per month in his 2018 IEP. Id. The 2018 IEP repeated one of the math goals and one of his reading goals from the prior IEP and added a new one in each category. In non-academic areas, the Adaptive/Daily Living Skills goal from his prior IEP was repeated, as were his Communication/Speech and Language goal and his Emotional, Social, and Behavior Development goal. The new IEP included three goals in Motor Skills/Physical Development, each of which was similar (but not

identical) to the goals in his prior IEP. Id. at 54-71 (A.R. 398-415).

In January 2019, Edward reported to one of his parents that another student receiving special education services had inappropriately touched him on the playground. Dkt. 17-1 at 16-19 (A.R. 438-41). Around that same time, Edward's teachers noticed that his "stimming ha[d] become more prominent"^{1 1} and that he was having "increasingly severe challenges focusing during instructional lessons." Id. at 8 (A.R. 430). His teachers also noted that Edward had "shown a drastic change in his ability to focus ... to the point of forgetting some mastered skills such as adding two digit numbers, login information and regular routine such as getting all his things from his locker." Id. The teachers wanted to know if anything had "change[d] in the home" or if his medication had changed in a way that "may be a factor for the change in behavior." Id. Following the incident, Edward's parents asked that he be transferred to a different school, and the school granted that request.^{2 2} Id. at 25-27 (A.R. 447-49).

1 Stimming is "a self-stimulatory behavior that is marked by a repetitive action or movement of the body (such as repeatedly tapping on objects or the ears, snapping the fingers, blinking the eyes, rocking from side to side, or grunting) and is typically associated with certain conditions (such as autism spectrum disorder)." Stimming, Merriam-Webster's Collegiate Dictionary (11th ed.).

1 The relevant docket entries for the purposes of this Report and Recommendation are (1) the administrative record (ECF Nos. 15-21); (2) Plaintiffs' motion for judgment on the administrative record (ECF No. 29); (3) Defendant's cross-motion for summary judgment and opposition to Plaintiffs' motion for judgment (ECF No. 35); (4) Plaintiffs' reply in further support of their motion for judgment and opposition to Defendant's cross-motion for summary judgment (ECF No, 39); and (5) Defendant's reply in further support of its cross-motion for summary judgment (ECF No. 42). The page numbers cited herein are those assigned by the Court's CM/ECF system.

2 The school was notified of Edward's report to his parents, as were the police, though no charges were brought. Dkt. 17-1 at 16-19 (A.R. 438-41); Dkt. 21-5 at 120-21 (A.R. 1755-56).

2 A behavior is considered "stereotyped" or labeled "stereotypy" when it "involves repetition, rigidity, and invariance, as well as a tendency to be inappropriate in nature." Allison B. Cunningham & Lauren Schreibman, Stereotypy in Autism: The Importance of Function, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2598746 (last visited June 7, 2022). Stereotypic behaviors "may be verbal or nonverbal, fine or gross-motor-oriented, as well as simple or complex.... Common examples of stereotypy are hand flapping, body rocking, toe walking, spinning objects, sniffing, immediate and delayed echolalia, and running objects across one's peripheral vision." Id. The 2017 IEP defines excessive motor stereotypy as "3 seconds or more of repetitive non-vocal movements that are non-functional" and vocal stereotypy as "3 seconds or more of off-topic vocalizations." ECF No. 16-3 at 59.

Edward started at Hardy Middle School in early March 2019. Dkt. 15-1 at 18 (A.R. 18). According to his IEP Progress Report for the final period of the 2018-2019 school year, dated June 14, 2019, Edward was progressing on all his goals, with the exception of one Adaptive/Daily Living Skills goal that he mastered. Dkt. 19-6 at 20-24 (A.R. 1127-31).

In the fall of that year, Edward was evaluated once again, as required by the IDEA's triennial review process. Dkt. 17-2 at 1 (A.R. 505). That evaluation indicated that Edward's "basic reading skills," his "[f]luency, which is his ability to read[] statements to determine if they are true or false," and his "writing fluence and his ability to construct structured sentences using proper grammar and punctuation" were in the "Low Average" range. Id. at 8 (A.R. 512). His "[r]eading comprehension [was] considered a weakness." Id. And his "calculation skills, fluency, and applied problems" skills were "Very Low when compared to other students his age." Id. "Calculation was his highest performing area as it related to Broad Mathematics." Id. The evaluation noted that "Edward is a respectful and kind young man" who is "motivated to complete schoolwork," but stated that he "has difficulty maintaining nonverbal social behavior and primarily plays with adults." Id. at 5 (A.R. 509). Edward's performance was described as "inconsistent," although "best when he has limited stimming behaviors." Id. The evaluation reported that "[h]e has difficulty focusing due to his stereotypy behaviors." Id.

Edward's IEP team met on November 25, 2019 to develop his 2019 IEP. Id. at 17 (A.R. 521). The 2019 IEP again provided that Edward would receive 21.25 hours per week of specialized instruction outside the general education environment, as well as 30 minutes per month of consultative occupational therapy, and 30 minutes per month of behavioral support services. Id. at 37 (A.R. 541). The 2019 IEP did, however,

reduce the amount of speech-language pathology Edward would receive each month from 3 hours to 2 hours. His occupational therapy was also reduced from 2 hours per month to 1 hour per month. Id. Edward's 2019 IEP also repeated some of the goals from his 2018 IEP, but it added new goals for math, reading, Communication/Speech and Language, Emotional, Social, and Behavior Development, and Motor Skills/Physical Development. Id. at 20-37 (A.R. 524-41).

Edward's final IEP Progress Report for the 2019-2020 school year observed that he was progressing on all of the goals set forth in the IEP, except for one Emotional, Social, and Behavioral Development goal relating to self-advocacy, with respect to which he had made no progress relative to the prior reporting period. Dkt. 19-6 at 43-50 (A.R. 1150-57).

C. Procedural Background

Plaintiffs filed their administrative due process complaint on June 19, 2020. Dkt. 18-1 at 1 (A.R. 564). They alleged that the DCPS "has continuously failed to appropriately educate [Edward] as evidenced by his regression in multiple educational areas" and that Edward's "academic achievement scores have plummeted" since 2014. Id. at 3 (A.R. 565). Specifically, Plaintiffs challenged the adequacy of Edward's 2015 IEP, 2016 IEP, 2017 IEP, 2018 IEP, and 2019 IEP, noting that these IEPs "decrease[d] [his] speech/language therapy services," "increase[ed] ... [his] time spent outside general education without [providing an] accompanying increase in programmatic supports," and "cut[] [his] occupational therapy services." Id. Plaintiffs also complained that the "goals and objectives" in those IEPs "d[id] not clearly align with [Edward's] needs or present levels of educational performance," "[f]ail[ed] to appropriately address significant needs in self-advocacy, social skills, programmatic language, and functional academics," and "[f]ail[ed] to offer meaningful, research-based specially designed instruction." Id. at 3-4 (A.R. 565-66). At a prehearing conference, the parties agreed that the complaint raised the following issues:

Did Respondent fail to offer the Student an appropriate Individualized Education Program ("IEP") in or about June[] 2015, December[] 2016, November[] 2017, November[] 2018, and November[] 2019? If so, did the Respondent act in contravention of 34 C.F.R. Sect. 300.320, Endrew F. v. Douglas County School District, 137 U.S. [S.Ct.] 988 (2017), Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176 [102 S.Ct. 3034, 73 L.Ed.2d 690] (1982), and related authority? If so, did Respondent deny the Student a Free Appropriate Public Education ("FAPE")?

Dkt. 19-4 at 44-45 (A.R. 1014-15).

DCPS moved to dismiss the due process complaint to the extent it "alleged failure[s] to develop appropriate IEPs" before June 2018 on the ground that any such violations occurred more than two years prior to June 2020 and were thus barred by the IDEA's two-year statute of limitations. Dkt. 18-2 at 2, 8 (A.R. 625, 631). Plaintiffs opposed the motion, arguing among other things that Plaintiffs "did not have sufficient information to know of [the] DCPS's failure to educate [Edward] until receiving updated testing data on November 23, 2019." Dkt. 19-4 at 46 (A.R. 1016). In light of the factual dispute underpinning the statute-of-limitations issue, the hearing officer held an evidentiary hearing on August 19, 2020. Id. at 46-47 (A.R. 1016-17). At the hearing, both parties introduced evidence and Edward's mother and a school psychologist (who was qualified by

the hearing officer as an "expert in reviewing student evaluation and assessment data and progress") testified. Id. at 47 (A.R. 1017).

In an order issued on September 4, 2020, the hearing officer found that Plaintiffs "knew or should have known about the alleged action that forms the basis of the complaint," 20 U.S.C. § 1415(f)(3)(C), when "the IEPs were created," Dkt. 19-4 at 60 (A.R. 1030). The hearing officer wrote:

Petitioner[, Edward's mother,] contended that she did not know that the Student was faring poorly in school until 2019, when she requested that the Student be evaluated....

The record does not support Petitioner's allegations. To the contrary, the record shows that Parent knew that the Student had low academic levels and was struggling through the period in question. Notable is Witness A's psychological assessment from November 11, 2016, which included the results of an interview with Petitioner. During this interview, Petitioner told Witness A that her main concern was the Student's academic progress, social skill development, and safety, and that the Student could not understand what s/he read. The record also contains notations from a phone call from Teacher A to Parent on October 25, 2017. During this conversation, Petitioner mentioned that the Student's situation was "heartbreaking" because when she and the Student talked, "it sounds like [s/he is] doing so well, but [the] IEP says otherwise."

Petitioner should have known the Student's cognitive and academic levels during this time. DCPS assessed the Student comprehensively in 2016, and prepared IEPs for the Student every year.... Every assessment, and every IEP, clearly indicated that the Student was functioning well below grade level in all academic subjects and had speech and language issues, though the Student performed better when asked to identify words.... The Student's IEPs during this period stated similar conclusions. The November 27, 2017, IEP and the November 27, 2018, IEP both indicated that the Student was functioning far below grade level in mathematics, writing, and reading comprehension, and also mentioned that the Student engaged in excessive motor-stereotypy and vocal-stereotypy in class. It is important to underscore that Petitioner did not clearly dispute Witness A's testimony that Petitioner had received the Student's IEPs and assessments at or near the time they were created.

Id. at 57-58 (A.R. 1027-28). The hearing officer, accordingly, agreed with DCPS and dismissed those claims "relating to the IEPs of June[] 2015, December[] 2016, and November[] 2017." Id. at 60 (A.R. 1030).

The hearing officer later held a due process hearing to adjudicate the remainder of Plaintiffs' remaining claims—that is, their challenges to Edward's November 2018 and November 2019 IEPs. At that hearing, fifteen witnesses testified. Twelve witnesses were called by Plaintiffs, including: Edward's mother; his special education teacher at Deal Middle School, Annie Mengistu; Local Education Agency ("LEA") representative for Deal Middle School, Arielle Alphonse; Edward's speech-language pathologist at Hardy Middle School, Lesa Gibson; and a school psychologist at Hardy Middle School, Arden Matthew. DCPS called three witnesses, including Matthew, again, and a specialist with DCPS's autism team, Mark Walker.^{3 3} The hearing officer issued his final determination in October 2020. He summarized the issues raised by Plaintiffs' claims that were not time barred as follows: Did the DCPS fail to offer Edward "an appropriate IEP in or about" November 2018 and November 2019, and, in particular, were those IEPs inadequate because they "did not contain:" (1) "sufficient speech and language therapy and/or occupational therapy;" (2) "any or sufficient recommendations for staff to employ research-based programming within general education, outside general education, and/or during related services;" (3) "any or sufficient recommendations to address [Edward's] deficits in self-advocacy skills;" (4) "any or sufficient recommendations to address [Edward's] functional academic skills;" (5) "[]sufficient and []appropriate goals and objectives;" or (6) "any or sufficient recommendations to address [Edward's] social skills and pragmatic language." Dkt. 15-1 at 7 (A.R. 7). After describing the standard applicable to Plaintiffs' claims—namely, whether Edward's IEPs were not "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," Endrew F., 580 U.S. at 399, 137 S.Ct. 988—the hearing officer determined that for each of Plaintiffs' claims, they had either "not present[ed] a prima facie case ... or, alternatively," that the DCPS had demonstrated "that its recommendations for [Edward] were appropriate." Id. at 26 (A.R. 26).

3 The other witnesses are not described here because their testimony does not factor into the issues presented by Plaintiffs' objections to the R&R.

3 A "Prior Written Notice" is a document that must be provided to a student's parent prior to either changing the student's identification, evaluation, placement, or "provision of FAPE" or refusing to make a requested change in one of those areas. See 34 C.F.R. § 300.503(a).

Plaintiffs filed this suit on Edward's behalf on January 20, 2021, alleging that "the [h]earing [o]fficer erred in finding that Edward's IEPs were appropriate and provided Edward with a FAPE" and "erred in insisting that" Plaintiffs present expert testimony at the due process hearing. Dkt. 1 at 10 (Compl. ¶ 34). Among other things, the complaint alleges that the IEPs were deficient because they did not consider Edward's "lack of educational progress," did not contain measurable goals, and did not "provide for research-based instruction in any areas of need." Id. at 10-11 (Compl. ¶¶ 35-37). Plaintiffs also challenge the hearing officer's decision to dismiss their claims that accrued prior to June 2018. Id. at 7-8 (Compl. ¶ 28). The Court referred the case on April 9, 2021, to Magistrate Judge Michael Harvey for an R&R, and on October 22, 2021 and December 17, 2021, respectively, the parties cross-moved for judgment on the administrative record, Dkt. 29, and for summary judgment, Dkt. 35.

On June 7, 2022, Judge Harvey issued his R&R. The R&R first concludes that the hearing officer was correct in finding that the IDEA's two-year statute of limitations barred Plaintiffs' challenges to the June 2015, December 2016, and November 2017 IEP. It then goes on to address each of Plaintiffs' challenges to the hearing officer's decision with respect to the November 2018 and November 2019 IEPs and concludes that the hearing officer correctly resolved each of these disputes. Finally, the R&R concludes that Plaintiffs conceded that they had advanced new arguments in their motion for summary judgment that were not presented to the hearing officer and are, therefore, not properly before this Court. Dkt. 43. Plaintiffs filed timely objections to all three of the R&R's conclusions. Dkt. 44.

II. LEGAL STANDARD

Once a magistrate judge issues a report and recommendation on a dispositive motion, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to" by the parties. Fed. R. Civ. P.

72(b)(3); see also Shurtleff v. U.S. Env't Prot. Agency, 991 F. Supp. 2d 1, 8 (D.D.C. 2013) ("Proper objections 'shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for objection.'" (quoting Local R. Civ. P. 72.3(b))). The Court reviews "only those issues that the parties have raised in their objections." Taylor v. District of Columbia, 205 F. Supp. 3d 75, 79 (D.D.C. 2016) (quoting Aikens v. Shalala, 956 F. Supp. 14, 19 (D.D.C. 1997)). And parties may not raise in their objections "new initiatives" that were not put before the magistrate judge. Id. (citation omitted). After reviewing a magistrate judge's recommendations and timely objections to it, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

The R&R at issue here addresses Plaintiffs' motion for judgment on the administrative record and the District's cross-motion for summary judgment. A party is usually entitled to summary judgment under Rule 56 if it can "show[] that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The summary judgment standard in an IDEA case, however, differs from the usual Rule 56 standard. Under the IDEA, the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C); see also, e.g., Herrion, 2023 WL 2643881, at *7.

In conducting its review, a district court "must give 'due weight' to the hearing officer's determinations," Z.B. v. District of Columbia, 888 F.3d 515, 523 (D.C. Cir. 2018) (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034), recognizing that "courts lack the 'specialized knowledge and experience' necessary to resolve persistent and difficult questions of educational policy" and so "must be careful to avoid imposing their view of preferable educational methods," Rowley, 458 U.S. at 208, 102 S.Ct. 3034. In addition, "a hearing officer's findings 'based on credibility determinations of live witness testimony' are given 'particular deference' where there is no supplementation of the record." B.B. v. District of Columbia, No. 20-2467, 2022 WL 834146, at *5 (D.D.C. Mar. 21, 2022) (quoting McAllister v. District of Columbia, 45 F. Supp. 3d 72, 76-77 (D.D.C. 2014)); accord A.G. v. District of Columbia, 794 F. Supp. 2d 133, 141 (D.D.C. 2011) (noting that when the hearing officer makes "fact based, credibility-dependent finding[s], ... a greater level of deference is often appropriate"); J.N. v. District of Columbia, 677 F. Supp. 2d 314, 322 (D.D.C. 2010) (same).

That deference, however, falls short of that which is "'conventional in administrative proceedings,' especially when the decision is insufficiently supported by fact or reasoning." Z.B., 888 F.3d at 523 (quoting Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005)). Therefore, "while a certain amount of deference should be accorded to the knowledge and expertise of the hearing officer," M.O. v. District of Columbia, 20 F. Supp. 3d 31, 40 (D.D.C. 2013), a hearing decision "without reasoned and specific findings deserves little deference," Reid, 401 F.3d at 521 (citation omitted); see also Endrew F., 580 U.S. at 404, 137 S.Ct. 988 ("By the time any dispute reaches court, school authorities will have had a complete opportunity to bring

their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions.").

"The party challenging the administrative decision carries the burden of proof of persuading the court that the [h]earing [o]fficer was wrong." B.B., 2022 WL 834146 at *5 (citing Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). "That party must demonstrate by a preponderance of evidence that the [h]earing [o]fficer erred." D.C. Int'l Charter Sch. v. Lemus, No. 21-0223, 660 F.Supp.3d 1, 17 (D.D.C. Mar. 27, 2023) (citing Kerkam, 862 F.2d at 887); see also Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) ("[A] party challenging the administrative determination must at least take on the burden of persuading the court that the hearing officer was wrong, and that a court upsetting the officer's decision must at least explain its basis for doing so." (quoting Kerkam, 862 F.2d at 887)).

III. ANALYSIS

A. Statute of Limitations

Plaintiffs first object to the R&R on the ground that it "erroneously applied [the] IDEA's statute of limitations as a matter of law." Dkt. 44 at 3. In particular, Plaintiffs maintain that both the magistrate judge and the hearing officer erred in barring them from recovering for any educational harm that Edward sustained "during the beginning of the 2018-2019 school year" because the November 28, 2017 IEP—which was still in effect at that time—"was drafted more than two years before the Due Process Complaint was filed." Id. This was error, in Plaintiffs' view, because the "educational harm," even if tied to the November 2017 IEP, occurred "within the two-year period before the filing of the Due Process Complaint." Id. at 3, 5.

Plaintiffs' argument regarding the statute of limitations has evolved over time. Before the hearing officer, they argued that the IDEA's two-year statute of limitations did not start to run until 2019, when they maintain that they first leaned that Edward "was fairing poorly in school." Dkt. 19-4 at 56 (A.R. 1026). The hearing officer rejected that theory as a matter of fact, finding that Plaintiffs knew that Edward "had low academic levels and was struggling through[out] the period in question." Id. at 57 (A.R. 1027). In their summary judgment brief before this Court, Plaintiffs acknowledged that the hearing officer had found that they knew or should have known of the basis for their due process complaint on "the date of development of each IEP itself" and that, as a result, their challenges to the June 2015, December 2016, and November 2017 IEPs were untimely. Dkt. 29-1 at 22. Significantly, Plaintiffs gave ground, asserting that they "no longer contest" that ruling. Id. Instead, they argued that "notwithstanding the date on which a plaintiff 'knew or should have known' of a school district's ... violations of [the] IDEA (a.k.a. the 'KOSHK' date), the plaintiff can always seek relief for any injuries that fall within the two-year period before the filing of the [d]ue [p]rocess complaint." Id. at 20 (emphasis removed). Echoing that point, Plaintiffs frame their objections to the R&R as follows: The R&R's refusal to consider the adequacy of the November 2017 IEP on the ground that "it was drafted more than two years before the filing of the [d]ue [p]rocess [c]omplaint" constituted "reversible error," because at least a portion of "the educational harm ... caused" by the defective IEP occurred "within the two-year period before filing of the [d]ue [p]rocess [c]omplaint." Dkt. 44 at 5. Although the basis for Plaintiffs' statute of limitations argument is unclear even at this late date in the litigation, the Court can discern two possible theories. First, Plaintiffs might be arguing that, even when the violation of the IDEA that forms the basis for a due process complaint occurred more than two years before the KOSHK date, a student and her family are still entitled—as a matter of law—to recover for any educational harm that occurred within two years of the KOSHK date. Second, they might be arguing that the violation at issue here is not merely the inadequacy of the IEPs but also, and more fundamentally, the denial of a FAPE, and a violation of that type occurs—and reoccurs—each and every day a student suffers educational harm, even when that educational harm is the product of an inadequate IEP. As explained below, the Court concludes that the first of these theories fails on the law and that second fails on the facts of this case.

The confusion that underlies Plaintiffs' argument might stem, at least in small part, from the statutory text, which itself is not a model of clarity. Two subsections of the IDEA address the governing timeline. Of the two provisions, 20 U.S.C. § 1415(f)(3)(C) is the more straightforward. It provides: "A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint." 20 U.S.C. § 1415(f)(3)(C). So far, so good. The IDEA establishes a two-year statute of limitations, subject to a discovery rule. The second provision, 20 U.S.C. 1415(b)(6), however, introduces some fog to this clarity. It recognizes "[a]n opportunity for a party to present a complaint ... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," and, as relevant here, directs that such a complaint must:

set[] forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint ..., in such time as the State law allows ....

20 U.S.C. § 1415(b)(6)(B). Thus, § 1415(f)(3)(C) establishes a forward-looking statute of limitations—that is, the parent or public agency may file a complaint within two years of the KOSHK date, while § 1415(b)(6)(B) appears to establish a backward-looking limitation—that is, the due process complaint may not include any alleged violation that occurred more than two years before the KOSHK date. See G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 610 (3d Cir. 2015) ("Unlike § 1415(f)(3)(C), however, § 1415(b)(6)(B)'s two-year limitations period runs backwards instead of forward from the reasonable discovery date.").

This arguably competing language has engendered a range of interpretations: some courts have construed the provisions "to limit redress to the two years preceding the complaint" (the occurrence rule); "[s]ome have interpreted them to impose a filing deadline but not to limit the remedy for timely-filed claims" (the discovery rule); and some have construed the provisions in tandem to "extend [the period for which relief is possibly available] from two years before the reasonable discovery date through the date the complaint was filed, which could be up to two years after the reasonable discovery date" (the 2+2 rule). Id. at 607, 610 (emphasis omitted). The three circuits that have wrestled with this question—the First, Third, and Ninth—have all soundly rejected the occurrence and 2+2 rules; have treated § 1415(f)(3)(C) as controlling; and have concluded that "[t]o the extent that some of [the language in § 1415(b)(6)(B)] appears to conflict with that conclusion, ... the inconsistent language reflects nothing more than a drafting error in the reconciliation process." Id. at 625; see also Avila v. Spokane Sch. District 81, 852 F.3d 936, 944 (9th Cir. 2017) ("We hold the IDEA's statute of limitations requires courts to apply the discovery rule without limiting redressability to the two-year period that precedes the date when 'the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.'" (quoting 20 U.S.C. § 1415(f)(3)(C))); Ms. S. v. Reg'l Sch. Unit 72, 916 F.3d 41, 50 (1st Cir. 2019) ("We hold that the IDEA has a single two-year statute of limitations regulating the amount of time to file a complaint after the reasonable discovery date. In holding this, we join the Third and Ninth Circuits."). The reasoning in those opinions is convincing, and the Court need not repeat what they have already explained.

Here, moreover, the parties do not dispute that § 1415(f)(3)(C) establishes a two-year statute of limitations, and, at least at times, Plaintiffs seem to embrace the Third Circuit's decision in G.L. See, e.g., Dkt. 29-1 at 20. At other times, however, Plaintiffs seem to revert to a version of the debunked 2+2 rule, premised on the mistaken understanding that § 1415(b)(6)(B) speaks to the remedies a plaintiff can seek for a violation of the IDEA, see G.L., 802 F.3d at 615 (explaining that one possible, though incorrect, reading of § 1415(b)(6)(B) is that it "effectively serv[es] as a four-year remedy cap"). In both their objections to the R&R and in their summary judgment briefing, Plaintiffs argue that they are entitled to recover for the educational harm that Edward allegedly sustained during the first few months of the 2018-2019 school year because, even though the November 2017 IEP remained in effect at the time, and even though they did not challenge that IEP within two years of the KOSHK date, the 2017 IEP nonetheless caused Edward harm during the "the two-year period before the filing of the [d]ue [p]rocess [c]omplaint." Dkt. 44 at 5; see also Dkt. 29-1 at 20-21. To the extent Plaintiffs mean to argue that § 1415(b)(6)(B) permits a parent to recover for all educational harm caused during the two-years preceding the filing of a due process complaint, regardless of whether that harm was caused by an action that was timely challenged in the due process complaint, they are mistaken.

The problem with that argument (if, in fact, Plaintiffs intend to make it) is that it impermissibly seeks to decouple § 1415(b)(6)(B) and § 1415(f)(3)(C). All agree that § 1415(f)(3)(C) imposes a two-year statute of limitations, subject to the discovery rule. Importantly, that statute of limitations is tied to the date when the parent "knew or should have known about the alleged action that forms the basis of the complaint." Thus, to apply this rule, the hearing officer or the court must first identify "the alleged action that forms the basis of the complaint," and must then ask whether the parent requested a due process hearing within two years of when she knew or should have known about that action.

Section 1415(b)(6)(B) does not change that rule. As the Third Circuit persuasively explained in G.L., § 1415(b)(6)(B) does not resurrect an untimely challenge but, rather, merely summarizes the procedurals rules "more fully described in later subsections," including

§ 1415(f)(3)(C). G.L., 802 F.3d at 616. It bears emphasis, moreover, that the language that Congress employed in § 1415(f)(3)(C) parallels the language it used in § 1415(b)(6)(B). Section 1415(b)(6)(C) does not address "remedies" or "educational harm." To the contrary, like § 1415(f)(3)(B), it addresses when a parent may "present a complaint," and, like § 1415(f)(3)(B), it ties that determination to the "violation" or "action" challenged in the complaint. Reading the words that Congress used in § 1415(b)(6)(B) and § 1415(f)(3)(C) in "context and with a view to their place in the overall statutory scheme," Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), it is evident that both provisions refer to the same "alleged action" or "alleged violation;" neither addresses "remedies" or "educational harm" unmoored to the specific "action" or "violation" alleged in the due process complaint, and neither permits a hearing officer or court to remedy an "action" or "violation" that was not timely asserted in that complaint. Accordingly, to the extent Plaintiffs intend to give § 1415(b)(6)(B) some independent remedial force that extends beyond § 1415(f)(3)(C) and that permits a parent to recover for educational harm caused by a violation that was not timely raised in the due process complaint, that argument fails as a matter of law.

Alternatively, and somewhat more plausibly, Plaintiffs might be understood to press a factual argument—that is, they might simply intend to argue that the "violation" or "action" that formed the basis for their due process complaint was not simply the issuance of the IEPs (and the exclusion of certain types of instruction or therapy in those IEPs) but also, more generally, the denial of the FAPE that Edward would have received but for those omissions. The problem with this argument, however, is that it ignores what Plaintiffs' due process complaint actually says, and it ignores the agreed-upon statement of issues, which provided the foundation for the hearing officer's disposition of the DCPS's statute of limitations motion.

As an initial matter, it is helpful to bear in mind what a FAPE is. The IDEA defines a "free appropriate public education"—or FAPE—to mean "special education and related services that

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d).

20 U.S.C. § 1401(9).

It follows that the denial of a FAPE can take a variety of different forms. If the education is not "provided at public expense," or "under public supervision and direction" or does not "meet the standards of the State educational agency," for example, the student is denied a FAPE. And, similarly, if the student does not receive an adequate IEP or if she does not receive services and therapy in the manner prescribed by the IEP, she is denied a FAPE. These are all distinct requirements, which must be considered separately.

"The key inquiry regarding an IEP's substantive adequacy is whether, taking account of what the school knew or reasonably should have known of a student's needs at the time, the IEP it offered was reasonably calculated to enable the

specific student progress." Z.B. v. District of Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018) (emphasis added). That inquiry requires the reviewing court to consider the adequacy of a series of IEPs "as of 'the time each IPE is created' rather than with the benefit of hindsight." Id. (citation omitted). It follows that a challenge to the adequacy of an IEP differs from a challenge to a state agency or school's failure to implement that IEP in the required manner—that is, the denial of a FAPE based, for example, on the failure of an IEP to include a program for occupational therapy differs from a denial premised on the state agency or school's failure to provide the student with the occupational therapy prescribed in the IEP. In short, the denial of a FAPE is not a freestanding concept, which simply asks whether the student received the benefits of the IDEA, but rather requires the reviewing court to identify the requirement of the IDEA that the state agency or school failed to satisfy.

Here, Plaintiffs' due process complaint is clear: it alleges that the "DCPS denied [Edward a] FAPE and continues to do so in failing to offer an appropriate IEP to meet his needs." Dkt. 18-1 at 7 (emphasis added). Removing any doubt about "the alleged action[s] that form[] the basis of [this] complaint," 20 U.S.C. § 1415(f)(3)(C), Plaintiffs then identify the specific IEPs at issue and identify a series of "deficiencies" in those IEPs, Dkt. 18-1 at 3. Those deficiencies include "[a] dramatic decrease in speech/language therapy services" authorized by the IEP; an increase in "time spent outside general education;" a reduction in the authorized "occupational therapy service hours" in the IEPs; the IEPs' identification of "[g]oals and objectives that do not align with [Edward's] needs;" the IEPs "[f]ailure to appropriately address significant needs in self-advocacy;" and their "[f]ailure to offer meaningful, research-based specially designed instruction." Id. at 3-4. Each "basis of the complaint" focuses on the inadequacy of the IEPs themselves, and none addresses questions of implementation, funding, or intervening events. At the prehearing conference, moreover, Plaintiffs agreed to the following description of the issues raised in the due process complaint: "Did Respondent fail to offer the Student an appropriate Individualized Education Program ('IEP') in or about June[] 2018, December[] 2016, November[] 2017, November[] 2018, and November[] 2019." Dkt. 19-4 at 45 (A.R. 1015). It was on the basis of that characterization of Plaintiffs' own due process complaint that the hearing officer resolved the DCPS's statute of limitations motion, and Plaintiffs remain bound by the agreed-upon description of the basis of the complaint.

Perhaps Plaintiffs mean to argue that they did not know and should not have known that the November 2017 IEP was inadequate until "after watching their child suffer from an IEP that his educators incorrectly claimed was appropriate" during the first few months of the 2018-2019 school year. Dkt. 44 at 6. But that argument fails at the outset, since Plaintiffs have conceded the point in their summary judgment brief, where they wrote:

In an Order dated September 4, 2020, [the hearing officer] found that the [know-or-should-have-known] date on which Parents knew or should have known that DCPS was denying Edward FAPE was the date of development of each IEP itself. This amounted to an implicit ruling that the Family's due process complaint was untimely, a ruling that Parents no longer contest; therefore, only violations of FAPE in the two-year period prior to the due process complaint of June 19, 2020 are raised in this appeal.

Dkt. 29-1 at 21-22 (citations omitted). In short, Plaintiffs do not challenge the hearing officer's determination that they knew or should have known about the inadequacy of the IEPs on the dates each IEP was formulated.

That concession, moreover, is well taken. The hearing officer began his statute of limitations decision by explaining that the KOSHK standard requires hearing officers a "fine-grained" consideration of factors to determine "on a case-by-case basis" when the parents knew or should have known about the action that is the basis of the complaint. Dkt. 19-4 at 56 (A.R. 1026) (quotations omitted). Applying that approach, the hearing officer pointed to evidence, primarily from 2016, that indicated that Plaintiffs had reason to know that Edward was facing significant challenges in school and the types of services he required to advance. Dkt. 19-4 at 57-60 (A.R. 1027-30). He also noted that Edward's mother had been in nearly daily contact during the relevant period with a special education advocate. Id. at 58. And even if the hearing officer's analysis fell short, cf. Damarcus S. v. District of Columbia, 190 F. Supp. 3d 35, 45 (D.D.C. 2016) ("Certainly, there are some deficiencies that can be recognized immediately by a layperson when an IEP is created. But the [h]earing [o]fficer's blanket finding that all deficiencies should be immediately recognized puts too great a burden on parents, who often lack the knowledge to understand the complexities of educating disable children. Instead, the inquiry should depend upon the particular deficiency asserted, and the parent's ability to recognize it." (citations omitted)); Avila, 852 F.3d at 941 (rejecting "a strict occurrence rule" for the IDEA's statute of limitations), Plaintiffs have failed to raise any such argument before this Court.

Finally, Plaintiffs might intend to argue that the failure of a state agency or school to provide a student with an adequate IEP gives rise to a continuing violation throughout the period in which that IEP is in place. They assert, for example, that denial of a FAPE is "a repeated injury where an injury occurs each day until the programming is fixed." Dkt. 44 at 7. On this theory, Edward was injured each day he received inadequate services pursuant to his 2017 IEP, including in the fall of 2018. But this theory also faces procedural and substantive hurdles. As an initial matter, the Court notes that the R&R concludes that Plaintiffs "disavow[ed] such a theory" in their motion for summary judgment, Dkt. 43 at 48, and Plaintiffs do not object to that portion of the R&R, see Dkt. 44 at 1-7. Even more importantly, the theory once again makes one of two mistakes: it either (1) conflates the violation with the harm, or (2) conflates a challenge to the adequacy of an IEP with a challenge to its implementation. With the respect to the former mistake, for all the reasons explained above, the statutory text is clear: the due process claim must be filed within two-years of the date the parent knew or should have known about "the alleged action that forms the basis of the complaint," and, here, the stated basis of the complaint was the inadequacy of the IEPs. And, with respect to the latter mistake, as also explained above, Plaintiffs have challenged only the adequacy of the IEP, and they have not challenged its implementation. Plaintiffs cannot make a claim in this Court without first having done so before the hearing officer, see Pinto v. District of Columbia, 938 F. Supp. 2d 25, 32 (D.D.C. 2013) ("[A] court cannot address an issue that was not first presented to the hearing officer." (quoting Roark ex rel. Roark v. District of Columbia, 460 F. Supp. 2d 32, 43 (D.D.C. 2006))), and each of the challenges that they raised before the hearing

officer focused exclusively on the adequacy of the IEPs at the time they were adopted. Nowhere in the proceedings before the hearing officer did Plaintiffs even gesture at a continuing violation theory of relief. See Dkt. 21-7 at 62-81 (A.R. 1896-1915) (Plaintiffs' closing arguments in the due process hearing); Dkt. 21-3 at 142-48 (A.R. 1473-79) (Plaintiffs' closing argument in the hearing on the statute of limitations).

In this respect, Plaintiffs' claims differ markedly from those in B.B. by & through Catherine B. v. Delaware Coll. Preparatory Acad., 803 F. App'x 593 (3d Cir. 2020). In that case, the Third Circuit concluded that the plaintiff there did "not seek to sweep ... expired claims into a single 'continuing violation,'" but instead "limited his request for relief to violations that took place from April 1, 2014 to September 2014, within 'the two-year time period' before filing the April 2016 due process complaint." Id. at 597 (quotation omitted). Significantly, in B.B., and unlike in this case, the due process complaint was based, in relevant part, on specific violations that occurred within the statute of limitations. As the Third Circuit observed, B.B. alleged that during the two-year window before the due process claim was filed, the school allegedly "failed to issue a PTE to conduct certain testing of B.B.," "failed to provide B.B. transportation to access special education and services," and "still had not evaluated B.B., met to revise his IEP, or provided him [with] speech services." Id. B.B. identified each of those alleged actions as the basis of his due process complaint, and thus B.B.'s challenge to each alleged action was timely raised. Id. at 594-95, 97. Notably, the Third Circuit did not suggest that B.B. could also recover for any ongoing injuries caused by earlier violations, which were not timely challenged. Thus, if anything, B.B. cuts against Plaintiffs' argument here and establishes a model for how Plaintiffs might have, but did not, challenge violations of the IDEA separate and apart from the substantive adequacy of the IEPs themselves.^{4 4}

4 Plaintiffs also appear to argue that they are entitled to recover for the educational harm Edward suffered in the first three months of the 2018-2019 school year because, during that period, DCPS had a duty to revise Edward's IEP, which it did not do. Dkt. 44 at 5-6 (objecting to the R&R's conclusion that "[t]he triggering incident here is the creation of the IEP, not any failure to revise the IEP at the beginning of the 2018-2019 school year," on the ground that "this assertion ... is contrary to IDEA's statute and implementing regulations which mandate that a school district updates an IEP periodically when a child is not making 'expected progress,' if the IEP is not responsive to the child's needs, or 'to address ... other matters'" (quoting first Dkt. 43 at 46-47, then 20 U.S.C. § 1414(d)(4)(A), and lastly 34 C.F.R. § 300.324(b))). But Plaintiffs did not raise this argument in their due process complaint or to the hearing officer. See Dkt. 21-7 at 62-81 (A.R. 1896-1915) (Plaintiffs' closing arguments in the due process hearing); Dkt. 21-3 at 142-48 (A.R. 1473-79) (Plaintiffs' closing argument in the hearing on the statute of limitations). It is therefore not exhausted and cannot be raised for the first time to this Court.

4 Stimming is "a self-stimulatory behavior that is marked by a repetitive action or movement of the body (such as repeatedly tapping on objects or the ears, snapping the fingers, blinking the eyes, rocking from side to side, or grunting) and is typically associated with certain conditions (such as autism spectrum disorder)." Stimming, Merriam-Webster's Collegiate Dictionary (11th ed.).

Because Plaintiffs only challenge the inadequacy of the 2017 IEP itself—rather than any service provided to Edward in the first three months of 2018-2019 school year—the Court rejects Plaintiffs' argument that they suffered a distinct injury each time Edward received services pursuant to that IEP. The Court, accordingly, is unpersuaded by Plaintiffs' objections to the R&R's analysis of their statute of limitations arguments.

B. Exhaustion

Next, Plaintiffs object to the R&R's conclusion that their "decision not to reply to an argument raised in DCPS's responsive brief"—namely, that they had

failed to exhaust several arguments as to why Edward's IEPs were insufficient—"constitutes a concession." Dkt. 44 at 9. The Court need not resolve that question because, even assuming that they did not concede the issue of exhaustion, their arguments fail in any event.

The R&R concludes that "several issues raised in Plaintiffs' briefing before this Court were not presented to the hearing officer," including (1) whether the DCPS "fail[ed] to conduct 'a functional behavioral assessment, any testing of emotional/behavioral/executive functioning, or any update of cognitive testing' in connection with the formulation of the 2019 IEP;" (2) whether the formulation of the IEPs was procedurally deficient because "Edward was not observed in his special education classroom as part of his triennial reassessment at the beginning of the 2019-2020 school year;" and (3) whether "the 2019 IEP was flawed because 'no general education teacher attended the [IEP] meeting.'" Dkt. 43 at 54-55 (quoting Dkt. 29-1 at 39-40). The R&R is correct with respect to each of these procedural challenges.

Plaintiffs' due process complaint identified six alleged deficiencies with Edward's IEPs, none of which raised a procedural challenge to the formulation of the IEPs. Dkt. 18-1 at 3-4 (A.R. 565-66). The issues raised were as follows: (1) "[a] dramatic decrease in speech/language therapy services, despite a noted lack of progress in pragmatic language skills;" (2) "[i]ncreasing [Edward's] time spent outside general education without an accompanying increase in programmatic supports to provide him with the research-based instruction needed to make meaningful educational progress;" (3) "[c]utting occupational therapy services hours in half;" (4) "[g]oals and objectives that do not clearly align with [Edward's] needs or present levels of educational performance;" (5) "[f]ailure to appropriately address significant needs in self-advocacy, social skills, pragmatic language, and functional academics;" and (6) "[f]ailure to offer meaningful, research-based specially designed instruction." Id. Understandably, the hearing officer limited his consideration to these issues. Dkt. 15-1 at 4-43 (A.R. 4-43).

"[A]bsent a showing that exhaustion would be futile or inadequate, a party must pursue all administrative avenues of redress under the [IDEA] before seeking judicial review under the Act," Douglass v. District of Columbia, 605 F. Supp. 2d 156, 165 (D.D.C. 2009) (quoting Cox v. Jenkins, 878 F.2d 414, 419 (D.C. Cir. 1989)), and a court "cannot address an issue that was not first presented to the hearing officer," Pinto, 938 F. Supp. 2d at 32 (quoting Roark, 460 F. Supp. 2d at 43). This exhaustion rule serves several important functions: It prevents courts from "substitut[ing] their own notions of sound educational policy for those of the school's authorities," Endrew F., 580 U.S. at 404, 137 S.Ct. 988, and, like other exhaustion rules, it "prevents courts from interrupting the administrative process permanently; it allows the agency to apply its specialized expertise to the problem; it gives the agency an opportunity to correct its own errors; it ensures that there will be a complete factual record for the court to review; and it prevents the parties from undermining the agency by deliberately flouting the administrative process," Cox, 878 F.2d at 419.

Although Plaintiffs object to the R&R's conclusion that they conceded the exhaustion issue in the course of the summary judgment briefing, they do not even attempt to show that they raised the alleged procedural deficiencies with Edward's IEP in the administrative process. Absent such a showing, the Court cannot reach the

merits of these allegations, none of which appear in Plaintiffs' due process complaint.

The Court, accordingly, concurs with the R&R's determination that Plaintiffs have not exhausted these alleged procedural deficiencies with the IEPs at issue.

C. Expert Witnesses

Plaintiffs also object to the R&R on the ground that it "erroneously found that the [h]earing [o]fficer did not require [them] to present expert witnesses to prove their case." Dkt. 44 at 8. In support of this argument, Plaintiffs point out that "the [h]earing [o]fficer ... mentioned four times in his opinion that [they] failed to call expert witnesses." Id. at 9. They argue that these repeated references to that omission demonstrates that the hearing officer "weigh[ed] the testimony of DCPS's witnesses over [their] witnesses" and that he did so on impermissible grounds. Id. In Plaintiffs' view, the hearing officer's focus on their failure to proffer any expert testimony shows that he misapplied the burden-shifting framework that governs in IDEA cases.

As explained above, if a parent or guardian of a child with a disability disagrees with the school about "what the child's IEP should contain," the IDEA gives the parents the right to file a due process complaint. 20 U.S.C. § 1415(f). Issues raised in the due process complaint are then submitted to an impartial hearing officer for resolution. Id. § 1415(f)(3). In the District of Columbia, when "there is a dispute about the appropriateness of the child's individual educational program," "the party requesting the due process hearing"—here, Plaintiffs—"shall retain the burden of production and shall establish a prima facie case." D.C. Code § 38-2571.03(6)(A)(i). "[T]he D.C. Code does not define 'prima facie case' or what would satisfy Plaintiffs' 'burden of production.'" W.S. v. District of Columbia, 502 F. Supp. 3d 102, 120 (D.D.C. 2020). But it is safe to say that the prima facie burden does not set a high bar. See Lemus, 660 F.Supp.3d at 21-22. "Generally speaking, a burden of production requires only that a party 'produce enough evidence ... to justify sending the case to [a] jury.'" W.S., 502 F. Supp. 3d at 120 (quoting 21B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5122 (2d ed. Supp. 2020)). Once a parent has satisfied her burden of production and established a prima facie case, the burden shifts and "the public agency shall hold the burden of persuasion." D.C. Code § 38-2571.03(6)(A)(i).

Here, the hearing officer correctly described this framework before concluding (1) that Plaintiffs "did not present a prima facie case," and/or (2) that the DCPS "showed that its recommendations for [Edward] were appropriate." Dkt. 15-1 at 26 (A.R. 26); see id. at 26-27, 35-36 (A.R. 26-27, 35-36) (reaching those conclusions with respect to Plaintiffs' argument that the IEPs were deficient because they reduced the amount of monthly speech-language pathology and occupational therapy consultation services Edward would receive relative to what was provided in Edward's 2017 IEP); id. at 29, 36 (A.R. 29, 36) (finding the same with respect to Plaintiffs' argument that the IEPs insufficiently described the research-based instruction he would receive); id. at 29, 37 (A.R. 29, 37) (same with respect to Plaintiffs' argument that the IEPs did not adequately address his needs relating to self-advocacy); id. at 29-30, 38 (A.R. 29-30, 38) (same with respect to Plaintiffs' argument that the IEPs did not address his needs regarding functional academics); id. at 32, 39 (A.R. 32, 39) (same with respect to Plaintiffs' argument that the goals in the IEPs were repeated year after year and that some of those

goals were not measurable); id. at 33, 40 (A.R. 33, 40) (same with respect to Plaintiffs' argument that the IEPs should have provided more services relating to social skills and pragmatic language skills).

In explaining his conclusions, the hearing officer did, at times, note that Plaintiffs had not proffered any expert testimony to support their case. See id. at 25 (A.R. 25) ("Petitioner did not present an expert witness in support of her position that [Edward] needed more speech-language pathology services than this IEP recommended."); id. at 28-29 (A.R. 28-29) ("[Plaintiffs] did not submit any document in support of the contention that [Edward]'s bruises were a function of his[] lack of self-advocacy skills. Moreover, [Plaintiffs] did not call any witness, expert or otherwise, in support this contention that [Edward] needed self-advocacy help in November 2018."); id. at 35 (A.R. 35) ("Again, [Plaintiffs] did not call an expert witness to testify that [Edward] needed more speech-language pathology services than this IEP recommended. And again, evidence in the record indicates that the entire CES program at DCPS is based on addressing a student's communication needs, including through the delivery of ABA instruction."); id. at 39 ("[Plaintiffs] also argued that the emotional, social, and behavioral goal relating to [Edward]'s picking behavior was difficult to measure. However, there is no testimony or evidence in the record to suggest that a special education teacher would have a problem measuring such goals, since [Plaintiffs] failed to call an expert witness to support her position on this issue.").

But he merely did so in the broader context of explaining why the evidence, as a whole, did not support Plaintiffs' arguments. With respect to Plaintiffs' argument that the amount of time Edward spent each month receiving speech pathology services outside of the CES classroom should not have been reduced, for example, the hearing officer began by noting that Plaintiffs did not present expert testimony to make their prima facie case and instead "relied on the language in [Edward's] IEP, which did indicate that [Edward] presented with a decreased ability to comprehend verbally-presented information of length and complexity." Id. at 25 (A.R. 25). The hearing officer went on to explain, however, that other evidence in the record supported the school's decision to reduce those hours. Specifically, the prior written notice for the 2018 IEP "indicated that the team recommended two hours of speech [pathology] per month because [Edward] required less cueing, it did not seem beneficial for him[] to continue working on the same challenges, and pulling him[] out was a detriment." Id. at 26 (A.R. 26). And the hearing officer noted that the only witness "with expertise" to testify on this subject found the amount of time in the IEPs to be appropriate. See Dkt. 21-6 at 14 (A.R. 1787) (Lesa Gibson Testimony) ("[Edward] has problems focusing, and he had poor social language skills ... [a]nd inside of his class, the social skills can be addressed."); id. at 15 (A.R. 1788) (Lesa Gibson Testimony) ("Many times with social language skills, we will pull them out and work on these things in the classroom with made-up scenarios. Sometimes it works, sometimes it doesn't. Because it's so hard for [Edward] to focus, he would not listen to [] scenario[s]. He would have to be in the classroom to really act it out[.]").

Plaintiffs failed to rebut this evidence, either on cross-examination or by proffering their own expert witness. See Dkt. 15-1 at 25 (A.R. 25) ("Petitioner did not present an expert witness in support of her position that [Edward] needed more speech-language pathology services than this IEP

recommended."). And while Edward's mother testified to her belief that his speech pathology hours should not have been reduced, her main criticism was ultimately unpersuasive. She simply argued, "if [the school] say[s] he's having a hard time with his social skills, why [is the school] decreasing the hours," Dkt 21-3 at 54 (A.R. 1385), to which the DCPS responded by explaining that "pull-out" services had not worked with Edward given his challenges focusing and that it anticipated that "push-in" services would be more effective, Dkt. 21-6 at 14 (A.R. 1787); Dkt. 17-1 at 6 (A.R. 428). Based on this testimony, the hearing officer concluded that the evidence supported the DCPS's conclusion that the level of speech pathology services in Edward's IEPs was sufficient and, accordingly, that Plaintiffs had not met their burden of production, or, alternatively, that the DCPS had met its burden of persuasion. In other words, the hearing officer concluded that Plaintiffs' argument failed, not because they failed to present expert testimony, but because they failed to offer any testimony or evidence controverting the reasoned explanation that the DCPS gave for the reduction of services.

The same can be said of the other instances in which the hearing officer noted the lack of expert testimony in Plaintiffs' case. See, e.g., Dkt. 15-1. at 28 (A.R. 28) ("Again, [Plaintiffs] did not call any witness or submit any document to support her view that the IEP needed to include language requiring research-based programming or instruction."); id. at 30 (A.R.) ("There is no testimony from any other witness to contradict [a specific witness]'s position on this issue."); id. at 37 (A.R. 37) ("Again, there is unrebutted testimony in the record that [Plaintiffs] expressly declined direct behavioral support services, which could have addressed [Edward]'s self-advocacy needs."). When placed in context, the hearing officer's decision can hardly be read as requiring Plaintiffs to have retained experts; to the contrary, his references to the lack of expert testimony was merely one facet of his review of the record as a whole.

The Court, accordingly, is unpersuaded by Plaintiffs' objections to the R&R's sound conclusions regarding the proper allocation of burdens and the absence of expert testimony.

D. Sufficiency of the 2018 & 2019 IEPs

Plaintiffs' final objections focus on the adequacy of the November 2018 and November 2019 IEPs. Plaintiffs had argued to the hearing officer that these IEPs were inadequate because they (1) did not adequately describe the research-based instruction that Edward would receive, (2) failed to include measurable goals, and (3) resulted in regressions in Edward's performance. Dkt. 18-1 at 2-3 (A.R. 565-66). The hearing officer rejected each of these arguments, Dkt. 15-1 at 26-39 (A.R. 26-39), and the R&R agrees, Dkt. 43 at 56-61, 62-65, 66-69. For the reasons that follow, the Court again finds no error with either hearing officer's or the R&R's analysis.

1. Unmeasurable goals

The Court begins with Plaintiffs' cryptic objection to the R&R's analysis regarding unmeasurable goals. That objection asserts as follows:

The R&R claims that the Family did not prove a FAPE denial because they could not identify any deficiencies with the offered IEP. R&R [at] 62. [That] holding is factually erroneous. [The R&R] states that Edward's goals were not measurable (Id. at 68). Thus, the finding that the Family failed to identify deficiencies in the IEP is refuted by the R&R's own observations.

Dkt. 44 at 8. Plaintiffs misunderstand the R&R. Rather than finding that the IEPs contained goals that were not measurable, it found just the opposite. The R&R walks through each of the goals that Plaintiffs attacked as immeasurable, and, as to each, the R&R rejects Plaintiffs' argument. To be sure, the R&R does observe that "[t]he adaptive/daily living goal [was] ... vaguer" than the others, but it also explained that "'goals for social skills ... are inherently more difficult to quantify' than for academic skills" and that, accordingly, "some leeway should be granted when assessing their adequacy." Dkt. 43 at 68 (citation omitted). The R&R then concludes that the hearing officer reasonably found that the record did not support Plaintiffs' claim that a trained professional would be unable to "manag[e]" this goal. Id.

It was only after concluding that each of these goals was measurable that the R&R noted that, even "assuming that any or all of these goals were insufficient under the IDEA, Plaintiffs still would not prevail on this issue." Dkt. 43 at 68 (emphasis added). That alternative holding did not give rise to the inconsistency in the R&R that Plaintiffs posit. Indeed, if anything, this alternative holding further undermines Plaintiffs' challenge to the R&R, since Plaintiffs fail to take issue with this independent basis for upholding the hearing officer's decision with respect to the measurability of the goals contained in the IEPs.

To the extent Plaintiffs intend to go a step further and to object to the R&R's underlying conclusions regarding the measurability of the goals in Edward's IEPs, that argument is not properly raised. To object to a magistrate judge's R&R, a party must "specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection." L. Civ. R. 72.3(b). "[O]nly those issues that the parties have raised in their objections to the Magistrate Judge's report will be reviewed by this court." Aikens v. Shalala, 956 F. Supp. 14, 19 (D.D.C. 1997). Here, Plaintiffs have failed to provide any basis for their objections, beyond their mistaken assertion that the R&R takes inconsistent positions with respect to measurability. "[S]uch indiscriminate objections are not properly before the Court." Shurtleff, 991 F. Supp. 2d at 20; see, e.g., id. at 14 n.4 ("These cursory references, which merely refer the reader to arguments already made to and considered by the Magistrate Judge, are not 'properly objected to' and are therefore not entitled to de novo review."); cf. Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) ("We need not consider cursory arguments made only in a footnote."); Potter v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring) ("[J]udges 'are not like pigs, hunting for truffles buried in briefs' or the record." (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))).

The Court, accordingly, rejects Plaintiffs' first challenge to the adequacy of the November 2018 and November 2019 IEPs.

2. Research-based instruction

Plaintiffs next argue that the IEPs were deficient because they "did not contain research-based instruction" and that both the hearing officer and the R&R erred in failing to recognize this deficiency. Dkt. 44 at 7. The IDEA mandates that a child's IEP include "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child." 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Plaintiffs argue that this means that an IEP must "supply a minimal description of the research-based

instruction that the student will be receiving" and that Edward's IEPs fail this test. Dkt. 29-1 at 29.

In considering this argument, the hearing officer withheld judgment on its merits. Instead, he concluded that, even if Edward's IEPs lacked a detailed description of the research-based instruction that Edward would receive, Plaintiffs' challenge would still fail (1) because they failed to "explain how the lack of this language caused the [s]tudent any harm," and (2) because "the record suggests that the Student did receive a considerable amount of instruction based on the educational methodologies at [Deal Middle School]." Dkt. 15-1 at 28 (A.R. 28). As explained below, the R&R agrees, Dkt. 43 at 56-59, as does the Court.

The R&R first explains that, even if one assumes that a failure adequately to describe the research-based education a student will receive in an IEP violates the IDEA, that failure would constitute a procedural violation. Id. at 57. That matters for present purposes, the R&R further explains, because a plaintiff is entitled to relief based on a procedural violation of the IDEA only if "he or she [can] show some ensuing harm, such as a deprivation of educational benefit," id., and here, the hearing officer found no such harm. Finally, the R&R concludes, because "Plaintiffs have not provided sufficient reason to undermine the deference due to the hearing officer's treatment of the evidence on this point," his conclusion must stand. Id. at 59.

Plaintiffs disagree. Dkt. 44 at 7. They contend that such a conclusion "is not supported by the record." Id. For support, they point to the testimony of Annie Mengistu, Edward's special education teacher at Deal Middle School for the 2018-2019 school year (until he was transferred to Hardy Middle School in late February or early March 2019). Id. They assert:

Special education teacher Annie Mengistu testified that she gathered her curriculum from different disparate programs, and that it was all teacher-created. AR 1607-1608, 1613-1615. She could not state how long she spent on reading each day. AR 1613. Nor could she testify as to any training she had received in Applied Behavior Analysis ("ABA"), which DCPS pointed to as, and the Hearing Officer found was, the research-based instruction that Edward purportedly received. When asked, she testified that she had had no specific ABA training other than from DCPS—but she could not remember anything about those DCPS trainings, including when taken or what they involved. AR 1621.

Id. In Plaintiff's view, this testimony shows that "the IEP did not include research-based instruction and the student's primary special education teacher could not recall being trained in ABA." Id.

As an initial matter, the Court agrees with the framework that the hearing officer and the R&R applied. "A procedural violation of the IDEA is not a per se harm leading inexorably to a finding of denial of a FAPE." J.T. v. District of Columbia, 496 F. Supp. 3d 190, 203 (D.D.C. 2020). Rather, "an IDEA claim is viable only if those procedural violations affected the student's substantive rights." Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis removed). Accordingly, "'in matters alleging a procedural violation,' a student has been denied a FAPE 'only if the procedural inadequacies impeded the child's right to a free appropriate public education; significantly impeded the parent's opportunity to participate in the decision[-]making process regarding the provision of a free appropriate public education to the parent's child; or caused a deprivation of educational benefit.'" J.T., 496 F.

Supp. 3d at 203 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).

Here, Plaintiffs object only to the R&R's conclusion that the hearing officer correctly rejected their research-based-instruction challenge on the ground that they had failed to demonstrate that Edward had suffered any related educational harm.^{5 5} Dkt. 44 at 7. More specifically, Plaintiffs object only to that determination with respect to the education Edward received in the 2018-2019 school year; they cite no evidence respecting the hearing officer's determination regarding the 2019-2020 school year.

5 In their earlier summary judgment briefing, Plaintiffs argued that the alleged procedural violation "significantly impeded [their] opportunity [as parents] to participate in the decision-making process regarding the provision of a [FAPE]." 20 U.S.C. § 1415(f)(3)(E)(ii). They argued that "Edward's IEPs have never contained a statement of the special education, related services, and supplementary aids and services based on peer-reviewed research that would give Parents sufficient information to know what program DCPS would actually provide to Edward and therefore to be able to monitor that program and hold it accountable. Without that information, Parents lacked any meaningful notice of the program proposed and could not meaningfully participate and contribute input regarding that program." Dkt. 29-1 at 29-30 (citations omitted). The R&R, however, did not address this type of harm, and Plaintiffs have not objected to that omission. Fed. R. Civ. P. 72(b)(3) ("[A district court only] determine[s] de novo any part of the magistrate judge's disposition that has been properly objected to."); Thomas v. Arn, 474 U.S. 140, 150-51, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions under, a de novo or any other standard, when neither party objects to those findings."). The issue, accordingly, is not before the Court.

5 Law enforcement was unable to substantiate the accusation. ECF No. 21-5 at 121.

The hearing officer's no-harm determination for the 2018-2019 school year rested on the finding that Edward had, in fact, received research-based instruction at Deal Middle School. In support of that finding, the hearing officer pointed first to testimony showing that the DCPS generally "provides instruction through the ABA methodology" in all of its CES classrooms. Dkt. 15-1 at 28 (A.R. 28). Neither party disputes that the ABA methodology constitutes research-based instruction. The hearing officer also credited Mengistu's testimony that Edward received research-based instruction at Deal Middle School, including her testimony that "the CES classroom[] ... used the Edmark program" and "used the Lexia and Unique programs." Id. Plaintiffs do not dispute that these programs constitute research-based instruction. Plaintiffs nevertheless challenge the reasonableness of the hearing officer's determination.

They contend that the hearing officer was wrong to conclude that Edward received ABA-based instruction because Mengistu could not "testify as to any training she had received in ... ABA." Dkt. 44 at 7. If she could not testify to any training she received about ABA, Plaintiffs question how she could possibly have provided that instruction to Edward. But Mengistu later clarified that she had not "received any specific ABA training" "[o]ther than DCPS trainings" (although she could not specify exactly when that training occurred). Dkt. 21-4 at 130 (A.R. 1621) (emphasis added). And she testified that she has a master's degree in education and has been a certified special education teacher for sixteen years. Id. at 134-35 (A.R. 1625-26). Based on this testimony, the hearing officer reasonably determined that Mengistu was familiar with the ABA program.

That determination, moreover, is reinforced by other evidence in the record showing that DCPS generally uses ABA methodology in its CES classrooms, including

at the schools Edward attended. For example, Arielle Alphonse, the LEA representative at Deal Middle School who met frequently with Mengistu about the special education program at the school, testified that a Board Certified Behavior Analyst ("BCBA") would visit the CES classrooms at Deal every week to provide support with the ABA instruction. Dkt. 21-5 at 107, 110, 119 (A.R. 1742, 1745, 1754). The BCBA would "manag[e] th[e] binder" that each CES teacher had that "contained data that aides and teachers took on different goals that students would work on." Id. at 119 (A.R. 1754). Mark Walker, a "specialist with the autism team [at] DCPS" who worked with all CES classrooms, including Edward's, provided further explanation regarding the binder. Dkt. 21-7 at 34, 46-47 (A.R. 1868, 1880-81). He testified that "we provide ... an ABA binder for every kid" and that "in that binder, we provide ... behavior samples, token economies, snapshots, behavior snapshots, and the techniques that are implemented to improve every student's performance." Id. at 46-47 (A.R. 1880-81). The binder is "filled with the instructional methodology, interventions, and responses" so the teacher can see "how they're progressing" and "it's all based on ABA principles." Id. at 47 (A.R. 1881).

After weighing all this, the hearing officer made the factual determination that Edward did receive research-based instruction. As the R&R concluded, that determination was premised on uncontroverted evidence and was well reasoned, and it is entitled to deference. See J.T., 496 F. Supp. 3d at 207 ("[T]he hearing officer is best positioned to make credibility judgments as to testifying witnesses and resolve factual disputes that amount to inconsistent testimony."), aff'd, No. 20-7105, 2022 WL 126707 (D.C. Cir. Jan. 11, 2022).^{6 6}

6 To the extent that Plaintiffs take issue with Mengistu's testimony that she used other research-based programs in her classroom, see, e.g., Dkt. 21-4 at 117 (A.R. 1608) (Mengistu testifying that the "program she used with [Edward] for his word readings goals" was "Lexia"); id. at 122-23 (A.R. 1613-14) (Mengistu testifying that for math, she used "i-Ready," which is "an assessment program" that "also designs a curriculum based on student levels"), it is hard to see how that undermines the hearing officer's conclusion that Edward received ABA-based instruction. If anything, this evidence would seem to suggest that Edward received more, not less, research-based instruction and thereby did not suffer an educational harm, and Plaintiffs advance no argument to the contrary.

6 The hearing officer's decision states that the due process complaint "was filed by the Student's parent." ECF No. 15-1 at 4. For the sake of clarity, however, the undersigned will cite the due process complaint as if it were filed by Edward and his parents—that is, the group identified herein as "Plaintiffs."

Accordingly, the Court agrees with the R&R that Plaintiffs have failed to show that Edward was denied a FAPE because his IEPs did not adequately describe the research-based instruction he would receive.^{7 7}

7 In their objections to the R&R, Plaintiffs do not argue that the R&R failed to consider whether the hearing officer factored Edward's regression (or lack of progress) into his determination that Edward suffered no harm from any failure by DCPS to provide Edward with an IEP that stated with adequate specificity the research-based instruction he would receive. Accordingly, the Court does not consider whether the hearing officer's decision erred in this manner.

7 Edward received scores in ten subtests—the six mentioned above as well as Spelling, Writing Samples, Word Attack, and Sentence Writing Fluency. ECF No. 17-1 at 64.

3. Regression

Finally, Plaintiffs object to what they characterize as the R&R's "hold[ing] that regression is irrelevant to a denial of [a] FAPE." Dkt. 44 at 8 (citing Dkt. 43 at 62). Significantly, this objection is not addressed at the implementation of the IEPs at issue. Rather, Plaintiffs argued at the due process hearing that the repetition of goals in the November 2018 and November 2019 IEPs from goals included in earlier IEPs constituted prima facie evidence that the 2018 and 2019 IEPs were deficient

and that Edward's lack of progress in 2018 and 2019 confirms that supposition. In Plaintiffs' view, the mere repetition of goals showed "that Edward was either not progressing or regressing, thereby establishing that the IEPs were not 'reasonably calculated to enable [him] to make progress appropriate in light of [his] circumstances.'" Dkt. 43 at 62 (quoting Endrew F., 137 S. Ct. at 999).

In response, the R&R explains that "the question is not so simple," and notes that "Courts have consistently underscored that the 'appropriateness of an IEP is not a question of whether it will guarantee educational benefits, but rather whether it is reasonably calculated to do so.'" Id. (quoting Moradnejad, 177 F. Supp. 3d at 275). In the magistrate judge's view, moreover, this is such case because the hearing officer "ultimately found," in light of "unrebutted testimony from Edward's special education teachers," that the IEPs were "reasonably calculated to enable Edward to make educational progress considering his unique circumstances." Id. at 63. Because the magistrate judge found the hearing officer's assessment of the record to be "well-supported," the R&R accords it deference and concurs with the hearing officer's conclusion that Plaintiffs had not shown Edward's IEPs to be insufficient. Id. Plaintiffs take issue with this analysis, arguing that they have shown that the 2018 and 2019 IEPs were inadequate because, among other reasons, Edward regressed in the 2018-2019 and 2019-2020 school years. Dkt. 44 at 8.

As an initial matter, the Court notes that the hearing officer's decision did, in fact, take note of Edward's lack of progress. The decision explained: Plaintiffs' "claims [are] largely based on the contention that [Edward] did not make enough progress ... during the 2018-2019 and 2019-2020 school years," but they "fail[] to acknowledge ... that the IDEA does not require that such a student must make the same kind of progress as a typically developing student." Dkt. 15-1 at 41 (A.R. 41). Rather, the hearing officer explained, "limited academic progress does not ipso facto signal a violation of the IDEA any more so than does the existence of substantially similar IEPs year over year." Id. (quoting J.B. by & through Belt v. District of Columbia, 325 F. Supp. 3d 1, 9 (D.D.C. 2018)).

That statement of the governing law is correct. The Supreme Court in Endrew F. ex rel. Joseph F. v. Douglas County School District, 580 U.S. 386, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017), held that "a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," id. at 399, 137 S.Ct. 988. To be sure, the Court rejected the argument that all that a school is required to offer a student in an IEP is "de minimis progress." Id. at 402-03, 137 S.Ct. 988. But the Court "did not hold that any time a child makes limited, or even zero progress, th[e] school system has necessarily failed to provide a FAPE and violated the IDEA." J.B., 325 F. Supp. 3d at 9 (emphasis omitted) (citing Endrew F., 580 U.S. at 402-03, 137 S.Ct. 988). Rather, the central question remains "whether, taking account of what the school knew or reasonably should have known of a student's needs at the time, the IEP it offered was reasonably calculated to enable the specific student's progress." Z.B., 888 F.3d at 524. That standard "calls for evaluating an IEP as of the time each IEP was created rather than with the benefit of hindsight," though "evidence that 'post-dates' the creation of an IEP is relevant to the inquiry to whatever extent it sheds light on whether the IEP was objectively reasonable at the time it was promulgated." Id. The hearing officer also correctly applied this standard in evaluating the evidence of Edward's regression, which consisted of the repetition of goals in Edward's IEPs overtime and his fluctuating test scores in several areas. With respect to the repetition of IEP goals, the hearing officer noted that several of the goals in Edward's 2018 IEP and 2019 IEP were repeated from the year prior. See, e.g., Dkt. 15-1 at 30 (A.R. 30) (noting that Edward's 2018 IEP "did repeat the math goal relating to completing 'division expressions' with one prompt, which had been mastered by May 22, 2018 according to the progress report" from the school Edward attended prior to attending Deal Middle School); id. at 31 (A.R. 31) (noting that a 2018 IEP reading goal "related to writing a three-to-five-sentence summary of text with one prompt" had been repeated, though that "goal had not been mastered" at Deal Middle School); id. at 31 n.4 (A.R. 31) (noting that Edward's "adaptive/daily living skills goal relating to geography," the "communication/speech and language goals," and the "emotional, social, and behavior goal relating to social communication skills" were all repeated in his 2018 IEP, but Edward had not mastered any of these goals prior to attending Deal Middle School); id. at 38-39 (A.R. 38-39) (noting that a "written expression goal relating to writing compound sentences" had been repeated, but the "goal was only introduced in the middle of the [prior] school year and had not been mastered by [Edward] at the time of the [] 2019 IEP"); id. at 39 (A.R. 39) (noting that the "motor skills/physical development goal" had also been repeated, but that it "also had not been mastered when the [] 2019 IEP was written"). But he also stressed that "most of the goals [in Edward's November 2019 IEP] were in fact new," id. at 38 (A.R. 38), and noted that Mengistu testified that Edward's November 2018 IEP contained goals from his prior IEP because (1) he had not yet mastered those goals, and (2) he had only been at Deal Middle School for a couple months and the school "wanted [him] to master the goals from his[] prior school before working on new goals." Id. at 30-31; Dkt. 21-4 at 124-25 (A.R. 1616) ("I believe this goal came from the school that [Edward] came from.... Because he still hadn't mastered that goal. And the team agreed that we are going to continue working on that goal. And being November, ... it was only a few months since ... [Edward] came to me, so at that point we hadn't worked on this particular goal to mastery.").

The hearing officer also credited the testimony regarding Edward's "severe memory issues," which causes him to "forget[] lessons previously learned" and requires him "to be taught the same thing over and over again to achieve mastery." Dkt. 15-1 at 31 (A.R. 31). The hearing officer, for example, cited to Mengistu's testimony that Edward's "progress is very gradual" and "[t]here [are] times that he may show progress and then may not retain it or may not be able to generalize that skill," which can make it "seem[] that ... he is not progressing." Dkt. 21-4 at 138 (A.R. 1629). She also explained that because of this, "there's a lot of repetition of a particular skill" with Edward; although Edward may "master [a skill] ... at a particular time," "[a]fter some time, that mastery may not be there." Id.

Mengistu's account of Edward's "memory issues" were echoed in Walker's testimony, which the hearing officer also credited. Among other things, Walker testified that Edward would have to repeat goals before lasting mastery could be achieved, which is "very typical" of children with

autism. Dkt. 21-7 at 42 (A.R. 1876). Walker further explained that, in educating children with autism, "[w]e'll have many cycles up and down ... because [autism] has to do with memory and the access to memory." Id. Walker testified that Edward, in particular, "can do a rote application of, let's say a math problem, and he could write it out and be perfect. The very next day, we could come back to that. But the pathway is not as clear as it was the day before. And so[,] he can't access it ... again." Id. at 42-43 (A.R. 1876-77).

The hearing officer relied on this testimony to conclude that the repetition of goals in Edward's IEP did not reflect a deficiency in the IEPs; to the contrary, in light of Edward's "severe memory issues," which require him "to be taught the same thing over and over to achieve mastery," Dkt. 15-1 at 30-33 (A.R. 30-33), the repetition of goals was "reasonably calculated to enable [Edward] to make progress appropriate in light of [his] circumstances," Endrew F., 580 U.S. at 399, 137 S.Ct. 988; see also Dkt. 15-1 at 39 (A.R. 39) ("Here, I find that the repetition of [Edward]'s goals was a function of [Edward]'s low cognitive ability and memory issues, which required frequent repetition of instruction."). Plaintiffs fail to identify any evidence in the record casting doubt on this account of how Edward learns. Nor do they suggest that there are techniques other than repetition that would have been "reasonably calculated" to enable Edward to progress more effectively. The Court, accordingly, is persuaded that the hearing officer's weighing of the evidence was both sound and entitled to deference. Cf. Damarcus S., 190 F. Supp. 3d at 53 n.7 ("This is not to say that repetition of goals from one IEP to the next is per se inappropriate. Rather, this wholesale, cut-and-paste repetition is symptomatic of a larger, more concerning failure by the District to adapt its approach in the face of Damarcus's continued frustration and lack of progress." (citation omitted)).

The hearing officer also considered the evidence that Edward had regressed because his tests scores in reading and math had not improved. Although recognizing that some test scores "showed that [Edward had] made inconsistent progress, or no progress at all," the hearing officer observed that "the most recent psychological testing of [Edward] revealed that his[] scores increased in broad reading, broad mathematics, and broad written expression from 2016." Dkt. 15-1 at 36 (A.R. 36); see also id. at 19-20 (A.R. 19-20) ("A speech and language assessment of [Edward] was conducted on October 31, 2020, November 13, 2020, and November 19, 2020. The corresponding report dated November 23, 2020, reported [Edward]'s scores.... On all the tests, [Edward] scored in the below average range in receptive and expressive language. The evaluator indicated that [Edward]'s vocabulary and pragmatic skills were decreasing but that his[] language skills were increasing."); id. at 20 (A.R. 20) ("Another occupational therapy assessment of [Edward] was conducted on November 13, 2019, November 15, 2019, and November 20, 2019. The corresponding report dated November 21, 2020, included testing on the BOT-2 and Beery VMI, as well as interviews with a teacher and [Edward].... The evaluator remarked that [Edward] showed improvement from past testing on the BOT-2 but not on the Beery VMI. The report indicated that [Edward] improved from 2016 testing in visual motor and gross motor subtests and made progress in organizational skills, typing skills, handwriting, and fine motor skills. However, [Edward] still needed to generalize skills and his[] handwriting was inconsistent.").

Finally, the hearing officer credited the testimony from several witnesses, who explained

that "test scores are not the best way to determine [Edward]'s progress." Id. at 36 (A.R. 36). Walker, for example, testified that because autism is a "sensory disability, [and] it affects a person's ability to recall," "testing is ... difficult for ... students with autism." Dkt. 21-7 at 42-43 (A.R. 1876-77). That was why, Walker further explained, Edward could present "at kindergarten level" on a "formal test" but present at a "first to second grade" level "in the classroom." Id. at 43 (A.R. 1877). Lesa Gibson, Edward's speech-language pathologist at Hardy Middle School, also testified that tests were not a particularly effective way to measure Edward's ability and did not "valid[ly] represent[] his functioning." Dkt. 21-6 at 10 (A.R. 1783). She explained Edward "has a difficult time focusing"—"just because he couldn't stay focused for those tests doesn't mean that he doesn't know that." Id. at 10-11 (A.R. 1783-84). As a result, Gibson believes that Edward "know[s] way more than the test shows." Id. at 11 (A.R. 1784). That description of Edward's testing ability was echoed by Arden Matthew, the school psychologist at Hardy Middle School. Matthew testified that Edward presented a "unique case where [he] had to actually redirect [Edward] maybe three to six times per item ... on just about all of the subtests." Dkt. 21-5 at 44 (A.R. 1679). Accordingly, "more so [than] formal assessments," Matthew found "teacher observations are actually more helpful as far as just measuring his personal progress." Id.

Based on all this testimony, the hearing officer found that "test scores are not the best way to determine [Edward]'s progress" and instead credited the IEP progress reports that stated that, notwithstanding the mixed picture in his test scores, Edward had made some progress in his goals. Dkt. 15-1 at 36 (A.R. 36). Although Plaintiffs dispute this conclusion, once again, they offer no controverting evidence and no reason to question the hearing officer's assessment of the record. The Court, accordingly, is left with a well-reasoned administrative decision that is supported by the evidence in the administrative record. Nothing more is required to sustain that decision. Jackson v. District of Columbia, No. 19-197, 2020 WL 3318034, at *14 (D.D.C. June 2, 2020) ("The Hearing Officer here adequately considered, weighed, and explained a mixed record in a manner that was consistent with the LRE requirement and the other requirements of the IDEA. 'Where evidence of educational appropriateness is mixed, and a court bases its ruling on same record as before the hearing officer, the court should defer to the hearing officer.'" (quoting Schoenbach v. District of Columbia, 309 F. Supp. 2d 71, 82 (D.D.C. 2004))).

The Court, accordingly, is unpersuaded by Plaintiffs' attack on Edward's November 2018 and November 2019 IEPs based on his failure to make greater progress over the years and the repetition of certain goals in those IEPs. See also Shaw v. District of Columbia, No. 17-738, 2019 WL 498731, at *19 (D.D.C. Feb. 8, 2019) ("[The IDEA] requires only that education services be tailored to a student's 'unique needs.' In some cases, a student's unique attributes may preclude her from achieving much more than de minimis academic progress. In those circumstances, the student's lack of progress does not prove that the school denied the student a FAPE." (emphasis omitted)).

CONCLUSION

For the foregoing reasons, Plaintiffs' objections to the Magistrate Judge's Report and Recommendation are overruled, Dkt. 44, and the Court will ADOPT the Report and Recommendation, Dkt. 43, will DENY Plaintiffs' motion for judgment on the administrative record, Dkt. 29, and will

GRANT Defendant's cross-motion for summary judgment, Dkt. 35.

A separate order will issue.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

Plaintiff Edward M.-R., through his parents (with Edward, "Plaintiffs"), brings this action under the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking reversal of a hearing officer's decision rejecting their contentions that two Individualized Education Plans ("IEPs") designed for Edward's benefit denied him the free appropriate public education ("FAPE") guaranteed under the statute. Plaintiffs contend, first, that the hearing officer made two errors of law divorced from the question of whether Edward's IEPs were sufficient that require reversal and, second, that the hearing officer made numerous errors in support of his conclusion that the IEPs at issue provided Edward a FAPE. Specifically, they argue that the hearing officer misapplied the law when he failed to consider, on statute of limitations grounds, the adequacy of an IEP developed on November 28, 2017 (the "2017 IEP") and when he rejected Plaintiffs' claims on the alleged basis that they failed to present supporting testimony from an expert. They further contend that the 2017 IEP, an IEP developed on November 27, 2018 (the "2018 IEP") and an IEP developed on November 25, 2019 (the "2019 IEP") each denied Edward a FAPE for various reasons, including that they were insufficiently specific and prescribed inadequate goals and services. Each side has filed a dispositive motion, Plaintiffs seeking reversal of the hearing officer's decision and an award of compensatory education, Defendant seeking affirmance.¹ For the reasons that follow, Plaintiffs' motion should be denied and Defendant's motion should be granted.

I. BACKGROUND

Like many cases challenging a hearing officer's decision on the denial of a FAPE to a child receiving services under the IDEA, this case has a voluminous and detailed administrative record. The following summary focuses on the facts most salient to the questions before the Court, along with some necessary background.

A. Prior History, the 2017 IEP, and the 2017-2018 School Year

Edward has been receiving special education services from the District of Columbia Public Schools ("DCPS") as a student with Autism Spectrum Disorder since before he was three years old. ECF No. 15-2 at 19. Although this case concerns, at most, whether IEPs formulated in the 2017, 2018, and 2019 school years provided Edward a FAPE, for context the undersigned begins with the first independent psychological evaluation appearing in the record, which was performed in 2013, when he was approximately six and one-half years old, and a 2016 DCPS psychological

evaluation performed when he was nearly ten years old.

The 2013 psychological evaluation is based on a number of tests, including the Woodcock-Johnson III Tests of Achievement. Id. at 17, 29. The evaluator's report assessed Edward in the "Extremely Low range" of intellectual functioning, although she cautioned that because he had "sign[i]ficant difficulties understanding directions and the nature of the task," that score might not be "an accurate representation of his potential cognitive abilities." Id. at 21, 25. His verbal comprehension, perceptual reasoning, and general working memory abilities were also in the "Extremely Low range" and his general processing and speech abilities in the "Borderline range." Id. at 25. As to academic achievement when compared to others at his age level, his scores in broad reading and brief reading were in the high average range and his broad mathematics and brief mathematics scores were very low. Id. at 23. The evaluator noted that because Edward had "difficulty understanding basic directions" she could not administer all the subtests or evaluate his oral language and writing skills. Id. Reports from his parents and a teacher identified problems in emotional functioning, including hyperactivity; "behaviors considered strange or odd"; withdrawal; conduct problems; depression/anxiety; difficulty sustaining attention; and significant issues understanding and completing schoolwork. Id. at 24, 26. Problems with communication, socialization, and self-care skills placed him in the "At-Risk classification" for adaptive functioning. Id. at 26. The evaluator recommended, among other things, individualized attention in the academic environment, speech and language therapy, occupational therapy, "full-time programming for students functioning at the level of mental retardation," and a school environment staffed with personnel trained in working with autistic children. Id. at 26-27.

DCPS performed a "Psychological Evaluation" in October and November 2016 as part of the triennial review process mandated by the IDEA. ECF No. 16-1 at 1; see 20 U.S.C. § 1414(a)(2)(B)(ii) (requiring reevaluation of any child with a disability "at least once every 3 years, unless the parent and the local education agency agree that a reevaluation is unnecessary"). The report notes that Edward "displays variable below grade level academic achievement, Extremely Low cognitive skills, communications difficulties, social interaction/social skills deficits, atypical and stereotyped behaviors,[²] and significantly distracted and off-task learning behavior." ECF No. 16-1 at 30. His full-scale IQ was measured at 59, "in the Extremely Low range," and his scores on each of the 10 subtests of the Wechsler Intelligence Scale for Children-Fifth Edition ranged from "Very Low" to "Extremely Low." Id. His results on the Woodcock-Johnson Tests of Achievement-Fourth Edition ranged from "Very Low" (in five areas),

through "Low" (in one area), to "Low Average" (in five areas) and "Average" (in two areas). Id. As to behavioral and adaptive skill functioning, "parent and teacher adaptive rating scales reveal[ed] significant delays in adaptive skills in the areas of Communication, Daily Living Skills, and Socialization." Id. There was "marked impairment" in age-appropriate communicative, social, and personal functioning and "significant weaknesses" in executive functioning and attention skills, such as initiating and sustaining attention; inhibiting impulsive responses; sustaining working memory; and learning, planning, and organizing his environment/materials. Id. His symptoms on the Autism checklist were "consistent with" diagnoses of Autism Spectrum Disorder and ADHD. Id. The evaluator recommended "continued placement in a small structured academic and behavioral program that has a low student-to-teacher ratio and employs multiple presentation forms to include visual, auditory, kinesthetic and tactile modalities," with emphasis on increasing his functional literacy and basic math skills. Id. at 31. She also recommended specific strategies, such as establishing eye contact before providing instructions, modeling and repeating material whenever possible, and using visual charts, among other things. Id. at 31-32. An occupational therapy assessment performed in November 2016 reflected an extremely low score in visual motor integration and well below average scores in fine manual control and manual coordination. ECF No. 15-4 at 10-11.

On November 28, 2017, Edward's IEP team met, including his parents, special education teacher, general education teacher, social worker, and autism specialist, as well as a school representative and evaluator. ECF No. 16-3 at 58. The resulting 2017 IEP (for his fifth-grade year at Hearst Elementary School) noted that he "received specialized instruction in the intermediate self-contained Communication and Education Support (CES) classroom" and prescribed 21.25 hours per week of specialized instruction outside the general education environment, four hours per month of speech-language pathology and two hours per month of occupational therapy also outside the general education environment, and 30 minutes per month of consultative services in both occupational therapy and behavioral support services. Id. at 61, 76.

According to evaluations performed between the beginning of that school year and the IEP meeting, Edward was functioning below grade level in academic subjects (kindergarten-level in math and reading, second-grade level in spelling and phonics). Id. at 61, 63, 66. Although he had ultimately mastered or almost mastered his prior year's IEP goals in all three of those subjects, he demonstrated some regression at the beginning of the 2017-2018 school year. Id. at 61-62, 64-65. The 2017 IEP set two math goals, two reading goals, and one written expression goal. Id. at 62, 64-66. In non-academic areas of concern, the 2017 IEP set one goal in Adaptive/Daily Living Skills and three goals in Communication/Speech and Language. Id. at 68, 71. In Emotional, Social, and Behavioral Development, the IEP noted that Edward had "become more comfortable and confident navigating through the daily academic and behavioral expectations with dedicated aide support and moderate to maximum prompting." Id. at 72. Input from his teacher signaled that, in the classroom he "at times ... continue[d] to have difficulty related to behaviors consistent with Autism and ADHD, such as scripting and motor and/or vocal stereotypy" and that such behaviors had increased during the month of November 2017. Id. The 2017 IEP included one goal in this area, geared to orienting his body to an interlocutor and

making eye contact: Edward "will increase his social communication skills including, but not limited to, facing the speaker and engaging in eye contact while in dialogue with an adult and peer in 4 out of 5 observable opportunities." Id. at 73. In Motor Skills/Physical Development, the IEP noted that Edward received "120 minutes of direct and 30 minutes of consultative occupational therapy services per month to address concerns in the areas of fine motor, self-care, handwriting legibility, and sensory processing" and set four goals. Id. at 73-75.

Edward's final IEP Progress Report for the 2017-2018 school year, dated June 8, 2018, reports that he had mastered his written expression goal and one of his math goals, and was progressing on the rest, except that two of his Motor Skills/Physical Development goals had not been introduced. ECF No. 16-4 at 18-24.

B. The 2018 IEP and the 2018-2019 School Year

Edward enrolled at Deal Middle School for sixth grade in the 2018-2019 school year. The first IEP Progress Report (which reflected the goals of the 2017 IEP), issued on October 26, 2018, reflected that he had mastered the written expression goal and one of the reading goals from the 2017 IEP; he was progressing on both math goals (including the one he had mastered at the end of the 2017-2018 school year), his Emotional, Social, and Behavioral Development goal and one of his Motor Skills/Physical Development goals. Id. at 39-43. As to the remaining goals—one for Adaptive/Daily Living, three for Communication/Speech and Language, and three for Motor Skills/Physical Development—they either had not been introduced, had been introduced only recently, or Edward had demonstrated no progress on them. Id. at 41-44.

The IEP team met for its annual review meeting on November 27, 2018. Id. at 54. The resulting 2018 IEP noted that, as he had at his elementary school, Edward received specialized instruction in the self-contained Communication and Education Support (known as "CES") classroom and had a dedicated aide at Deal Middle School. Id. at 67. He "display[ed] hyper, impulsive, and highly-active behaviors across all contexts," including motor and vocal stereotypic behavior. Id. at 55. He "struggle[d] to attend to academic tasks for extended periods of time without moderate individualized support and sensory breaks," but had "made progress on his ability to work independently as long as sensory breaks are provided and behavioral systems are implement[ed]." Id. As did the 2017 IEP, the 2018 IEP prescribed 21.25 hours per week of specialized instruction and two hours per month of occupational therapy outside the general education environment, as well as 30 minutes per month of consultative occupational therapy and behavioral support services. Id. at 72. The amount of Edward's Speech-Language Pathology was decreased from four hours to three hours. Id. A "Prior Written Notice"³ issued on the same date as the 2018 IEP, explains that the hours were decreased because Edward was "requiring less cu[e]ing," working on the same challenges "[did] not seem beneficial," and "pulling him away from his peers [was] more of a detriment." ECF No. 17-1 at 6. According to an August 2018 assessment, Edward "[could] do many concrete 1st and 2nd grade math standards," but his results on a diagnostic math program placed him at the kindergarten level. ECF No. 16-4 at 57. The 2018 IEP repeated one of the math goals from the prior IEP and added a new one. Id. at 58-59. The 2018 IEP reflects that one reading assessment showed that Edward's "reading placement" varied from high 2nd grade to high 5th grade and that he had mastered phonemic awareness and sight words, but that a reading inventory assessment placed him "below 2nd grade for reading compared to grade-level performance standards." Id. at 59. As with the subject of math, one of his reading goals from the prior IEP was repeated and a new one was added. Id. at 60. The 2018 IEP noted that Edward had "mastered his 2017-2018 goals in the area of written expression" and promulgated a new goal to write, when "provided with a topic, sentence structures and story or a passage to write about, ... complete compound sentences in his writing with no more than 1 prompt and 80% accuracy in 3 consecutive assessments." Id. at 61.

In non-academic areas, the Adaptive/Daily Living Skills goal from his prior IEP was repeated. Id. at 63. In Communication/Speech and Language, Edward's main difficulty was "with attention and vocal stereotypy which at times result[ed] in inappropriate response to [']wh['] questions." Id. at 64. However, he had "shown improvement in comprehension and expression of complex ideas and require[d] reduced cues for understanding of nonliteral language and idiomatic expressions." Id. Each of the goals in that area from his prior IEP was repeated in the 2018 IEP. Id. at 66-67. Similarly, the 2017 IEP's goal in Emotional, Social, and Behavioral Development was repeated in the 2018 IEP. Id. at 68. The new IEP included three goals in Motor Skills/Physical Development, each of which was similar to one in the prior IEP; Id. at 70-71.

Edward's progress report from the period that included the development of the 2018 IEP (October 29, 2018, to January 18, 2019) reflects that he had mastered his Adaptive/Living Skills goal and was progressing on all other goals except for three—one math, one writing and one Communication/Speech and Language—that had not been introduced. ECF No. 17-1 at 10-15. Notes of observation by DCPS personnel from approximately the same time reported that Edward's "stimming ha[d] become more prominent"⁴ and he was having "increasingly severe challenges focusing during instructional lessons" and had "forgot[ten] some mastered skills such as adding two digit numbers, login information and regular routine such as getting all his things form his locker." Id. at 8. At around the same time, Edward reported to one of his parents that another student receiving special education services had inappropriately touched him, an incident that the police investigated.⁵ Id. at 16-18, 26. Because of that incident, Edward's parents requested that he be transferred to a different school. Id. at 25-27.

Edward's parents' request was granted, and he transferred to Hardy Middle School in late February or early March 2019. ECF No. 15-1 at 18; ECF No. 21-4

at 22. On May 14, 2019, Edward's parents reported to his treating psychiatrist that Edward had come home from school one day with bruises on his leg. ECF No. 17-1 at 39. As for academics, his IEP progress report for the final period of the 2018-2019 school year reflected that he was progressing on all his goals. Id. at 42-43. He had also mastered (as noted in an earlier period) his Adaptive/Daily Living goal and was progressing on the remainder of his goals in non-academic areas of concern. Id. at 44-46.

C. The 2019 IEP, February 26, 2020 Amendment, and the 2019-2020 School Year

Three years having passed since his evaluation in 2016, Edward was re-evaluated at the beginning of the 2019-2020 school year for his 2019 triennial review. His evaluation summary report from November 23, 2019, took into account classroom observations, work samples, discipline records, an educational assessment (the Woodcock-Johnson Tests of Achievement IV Form A and Extended (see ECF No. 17-1 at 64-66)), a speech-language assessment (see id. at 75-82), and an occupational therapy assessment (see id. at 67-74). ECF No. 17-2 at 1-9. The summary reflected that Edward's basic reading skills and his reading fluency (defined as "his ability to read[] statements to determine if they are true or false") were in the low average range, while reading comprehension was "considered a weakness." Id. at 8. In math, his calculation skills, fluency, and applied problems ratings were very low in comparison to other students his age; his highest performing area was calculation "as it relates to Broad Mathematics." Id. His "writing fluency and ability to construct structured sentences using proper grammar and punctuation" were in the low average range when compared to other students his age, while his spelling was in the low range. Id. In Communication/Speech and Language, his assessment found average articulation and fluency, with strengths in vocabulary, identifying word classes, and assembling sentences. Id. at 5. Weaknesses were that he spoke in a monotone and had difficulty focusing (due to stereotypic behaviors), following directions, composing complex and compound sentences, recalling verbal messages, and answering questions that require interpretation of semantic relationships. Id. Edward's occupational therapy assessment showed an average score in upper limb coordination and overall muscle coordination, with strengths in "his ability to carryover with simple, routine-based commands and handwriting legibility when he is focused and not rushing through tasks." Id. at 7. He scored very low in visual motor integration, low in motor coordination, and below average in visual perception, fine motor precision, fine motor integration, overall fine motor control, and manual dexterity. Id. He "continue[d] to present with sensory-integration deficits which serve[] as a barrier for initiating and completing school-related tasks." Id.

Edward's IEP team met on November 25, 2019. Id. at 20. The 2019 IEP prescribed 21.25 hours per week of specialized instruction outside the general education environment and 30 minutes per month each of consultative occupational therapy and behavioral support services (as in both the 2017 IEP and the 2018 IEP), but reduced Edward's amount of speech-language pathology from three hours per month to two hours per month and his occupational therapy from two hours per month to one hour per month. Id. at 37. The new IEP repeated many of the statements of Edward's present level of academic achievement and functional performance from the 2018 IEP. Compare,

e.g., ECF No. 17-2 at 23 (Present Academic Achievement and Functional Performance in math for the 2019 IEP), with ECF No. 16-4 at 57 (same, from the 2018 IEP). The 2019 IEP set one new goal in math and contained another goal that was markedly similar to a goal in the 2018 IEP. ECF No. 17-2 at 24-25. There were 3 reading goals. One was lifted from the Adaptive/Daily Living goals of the 2018 IEP and two were new. Id. at 26-27. His writing goal was repeated from the 2018 IEP. Id. at 28. In Adaptive/Daily Living Skills, his goal was to "communicate his needs and interest" both inside and outside of the classroom. Id. at 29. The 2019 IEP set three new Communication/Speech and Language goals and one new Emotional, Social, and Behavioral Development directed to reducing picking behavior. Id. at 31-32; 34. One of his Motor Skills/Physical Development goals was carried over from the 2018 IEP, but with the addition of a "self-edit[ing]" component and one new goal was set. Id. at 35-36.

In February 2020, one of Edward's parents sought an amendment to the 2019 IEP. The parent was concerned that Edward was not "advocating for himself and wanted his Speech Goals increased." Id. at 53. The IEP was amended to increase Edward's speech-language pathology from two hours per month back to three hours per month and to add an IEP goal related to self-advocacy. Id. at 56-58.

D. Administrative Proceedings

1. The Due Process Complaint

Plaintiffs filed a due process complaint on June 19, 2020.⁶ ECF No. 18-1 at 2-10. They alleged that DCPS had failed to provide Edward with a FAPE for years, citing, as evidence, his "plummet[ing]" scores on the Woodcock Johnson Tests of Achievement from 2013 to 2019. Id. at 3 (emphasis omitted). They asserted that Edward's scores on the test taken in 2019 declined in relation to his scores on the 2013 test by significant margins on a number of the subtests: Letter Word Identification, Reading Fluency, Passage Comprehension, Calculation, Math Facts Fluency, and Applied Problems.⁷ Id. They claimed that the IEPs promulgated for the 2015-2016 school year through the 2019-2020 school year were each deficient and sought "compensatory education from 2015 to the present for ongoing denials of FAPE," development of an appropriate program and school placement, and attorney's fees and costs. Id. at 3, 7.

In its response, DCPS noted that the complaint did not "delineate or clearly identify the issues/concerns with the specific IEPS" and "fail[ed] to identify which, all or some, concerns apply to all of the IEPs." Id. at 29 n.1. The Hearing Officer's final prehearing conference order construed the claims as asking whether DCPS

fail[ed] to offer [Edward] an appropriate [IEP] ... in or about June, 2015, December, 2016, November, 2017, November, 2018, and November, 2019? If so, did [DCPS] act in contravention of 34 C.F.R. Sect. 300.320, [defining the term "individualized education program" or "IEP",] Endrew F. v. Douglas County School District, 137 [S.Ct.] 988 (2017),

Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176 [102 S.Ct. 3034, 73 L.Ed.2d 690] (1982), and related authority? If so, did [DCPS] deny [Edward] a FAPE?

ECF No. 19-3 at 3. More specifically, the Hearing Officer framed the claims as contending that the IEPs at issue

did not contain: 1) sufficient speech and language therapy and/or occupational therapy; 2) any or sufficient recommendations for staff to employ research-based programming within general education, outside general education, and/or during related services; 3) any or sufficient recommendations to address [Edward's] deficits in self-advocacy skills; and 4) any or sufficient recommendations to address [Edward's] functional academic skills;[⁸] and 5) insufficient and inappropriate goals and objectives. Petitioner also contended that the IEPs did not include any or sufficient recommendations to address [Edward's] social skills and pragmatic language.

8 "Functional academics are adaptive skills developed sufficiently to allow persons ages 5 and older to be successful in daily activities in and outside the school environment, to increase their independence, and to promote their ability to succeed in a less restrictive environment." Melissa Miller & Nicole Fenty, Abstract, Functional Academic Adaptive Skills, available at https://www.researchgate.net/publication/287839700_Functional_Academic_Adaptive_Skills (last visited June 7, 2022).

Id. (italics omitted).

2. The Hearing Officer's Determination Regarding the Statute of Limitations

DCPS moved to dismiss certain claims as time-barred under the IDEA's two-year statute of limitations, which begins to run at the date the claimant knew or should have known about the alleged IDEA violations. ECF No. 18-2 at 2-8; see, e.g., Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 114 (2d Cir. 2008) ("An IDEA claim accrues on the date that a plaintiff or his parents 'knew or should have known about the alleged action that forms the basis of the complaint.'" (quoting 20 U.S.C. § 1415(b)(6)(B))). Specifically, it sought dismissal of claims based on allegations of conduct that occurred prior to June 2018 because the Edward's parents knew or should have known about DCPS' alleged failures to develop appropriate IEPs between October 2015, which is when the IEP for the 2015-2016 school year was formulated, and November 2017, which is when the IEP for the 2017-2018 school year (that is, the 2017 IEP) was formulated. Id. at 4-5, 8. Plaintiffs opposed the motion, arguing that they neither knew nor should have known "of DCPS' denial of FAPE to [Edward] until receiving their updated testing on November 23, 2019" rendering the June 19, 2020, due process complaint timely. ECF No. 18-5 at 3. The hearing officer took testimony in August 2020 concerning the date on which the claims presented in the due process complaint accrued. See ECF No. 21-3 at 142-158 (closing arguments at the hearing). Ultimately, the hearing officer held that the accrual date "for all of Edward's IEPs in question should be the dates the IEPs were created" and he consequently dismissed Plaintiffs claims relating to IEPs developed more than two years prior to June 19, 2020, including claims focusing on the alleged deficiencies of the 2017 IEP. ECF No. 19-4 at 60. In this action, Plaintiffs do not challenge the hearing officer's finding as to the accrual date or his dismissals of claims based on the IEPs from June 2015 and December 2016. ECF 29-1 at 22. They do, however, challenge the hearing officer's decision not to consider claims related to the denial of a FAPE for

the entire period that the 2017 IEP was in place (that is, until November 27, 2018), which includes some months that fall within two years of the date on which Plaintiffs filed their due process complaint, June 19, 2020. See id.

3. The Due Process Hearing

a. Statute of Limitations Issue

The due process hearing was held over the course of four days in late September and early October 2020. Prior to opening statements, counsel for Plaintiffs raised the statute of limitations issue again. She argued that, because the 2017 IEP was "in place at the beginning of the statutory period"—that is, it was the operative IEP from the beginning of the 2018-2019 school year until November 27, 2018, a period of approximately three months that is also within two years of June 19, 2020, the date the due process complaint was filed⁹—Plaintiffs should be able to raise the claim that Edward was denied a FAPE for that period, citing the IEP team's "ongoing duty to revise [an] IEP if it's not appropriate." ECF No. 21-4 at 6-7. The hearing officer disagreed, first noting that the argument had not been "specifically litigated in the decision dismissing the claims for the November 2017 IEP," and then asserting that, because the claims at issue were IEP-based claims, they accrued at the time the IEP was formulated, which occurred outside the two-year statutory period. Id. at 7-8.

9 The 2017-2018 school year ended on June 15, 2018. See DC Public Schools, 2017-2018 Traditional Calendar, available at https://dcps.dc.gov/publication/2017-2018-traditionalcalendar (last visited June 7, 2022). Edward did not attend summer school. See ECF No. 21-4 at 26 (testimony of Edward's mother that Edward goes to camp from 9:00 a.m. to 5:00 p.m. every weekday during the summer). The first day of the 2018-2019 school year was August 20, 2018. See District of Columbia Public Schools 2018-2019 Traditional School Calendar, available at https://dcps.dc.gov/publication/2018-19-traditional-calendar (follow "Traditional Calendar-English" hyperlink) (last visited June 7, 2022). Thus, the 2017 IEP was in place during the 2018-2019 school year for approximately three months—from August 20, 2018, until November 27, 2018, when the 2018 IEP was offered.

b. Hearing Testimony

Plaintiffs called twelve witnesses: Edward's mother and his special education advocate Doreen Hodges, and ten from DCPS, including Annie Mengistu, special education teacher at Deal Middle School; Arielle Alphonse, Local Education Agency ("LEA") representative¹⁰ for Deal Middle School; Hilary Katz, school social worker at Deal Middle School; Sara Haile, occupational therapist at Deal Middle School; Kylen Mahaney, school social worker at Hardy Middle School; Elsie Laguerre, occupational therapist at Hardy Middle School; Lisa Gibson, speech-language pathologist at Hardy Middle School; Bryan Holcombe, LEA representative for Hardy Middle School; and Arden Matthew, school psychologist at Hardy Middle School. DCPS called three witnesses, including Mr. Matthew and Mark Walker, a specialist with DCPS' autism team.¹¹ i. Edward's Mother

10 A "local education agency" or "LEA" is "a public board of education or other publicauthority legally constituted ... for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools." 20 U.S.C. § 1401(19). "Under the IDEA, the LEA is designated as a member of the team responsible for developing Edward's IEP." Gore v. District of Columbia, 67 F. Supp. 3d 147, 156 (D.D.C. 2014). DCPS is the largest LEA in the District of Columbia. See DL v. District of Columbia, 194 F. Supp. 3d 30, 45 (D.D.C. 2016).

11 The testimony of Hardy Middle School LEA Representative Tonya White and Deal Middle School Health and Physical Education Teacher Darieal Wimby is not summarized here, as that testimony is not cited by either party or by the hearing officer.

Edward's mother testified that he had been in the Communication and Education Support, or CES, program, which provided small class sizes for academic subjects like math and reading, since he was two years old. ECF No. 21-4 at 14. At the beginning of the 2017-2018 school year (his fifth-grade and final year at Hearst Elementary School), she spoke to his teacher because he seemed to have regressed in reading and math. Id. at 14-15. The teacher noted that regression was common after a summer break and Edward's mother noticed "a little bit" of improvement after one month. Id. Edward's mother then moved on to testify about the 2018 IEP, which was developed during Edward's sixth-grade year at Deal Middle School. Id. At the meeting to develop that IEP on November 27, 2018, the school wanted to decrease his speech-language therapy from four hours to two hours per month, a recommendation she opposed. Id. at 16. The IEP ultimately prescribed three hours of speech-language therapy. ECF No. 16-4 at 72.

According to his mother, in January 2019, Edward reported to his parents that another student was "touching" him, which they in turn reported to the school and then to the police. ECF No. 21-4 at 20-22. However, the parents had suspected earlier in that school year that something was wrong, because Edward had begun to "pick his face ... or hair" and "play with his shirt." Id. at 22-23. As a result of the incident, Edward's mother requested a transfer to another school, and Edward transferred to Hardy Middle School at the end of February 2019. Id. at 22. The picking "decreased a little bit" after the transfer. Id. at 24. For much of the period of the 2018-2019 school year that he was at Hardy Middle School, he was taught by a long-term substitute teacher because the regular special education teacher was ill. Id. at 24. At the meeting in November 2019 to develop the 2019 IEP, the school cut his speech therapy hours down from three to two per month. Id. at 25; ECF No. 17-2 at 37. Edward's mother testified that at that meeting she discussed her concern about Edward's regression in math and reading over the summer (when he attended summer camp from 9:00 a.m. to 5:00 p.m. each weekday). ECF No. 21-4 at 26-27.

Counsel then asked Edward's mother to outline, "from [her] experience," what Edward needed to achieve academic success. Id. at 29. She testified that he required small classes, with "more qualified" dedicated aides. Id. She complained that his speech and language therapists "just keep doing the same thing over and over again." Id. at 29-30. She opined that virtual schooling was not conducive to his learning and suggested that a program with no general education students would be best. Id. at 30, 35. She further emphasized that a focus on reading and communication was paramount. Id. at 31-32.

ii. Doreen Hodges, Edward's Special Education Advocate

Ms. Hodges testified that she attended the 2018 IEP meeting as a special education advocate supporting Edward. ECF No. 21-5 at 132-33. At that meeting, in response to the school's proposal to reduce Edward's speech and language therapy hours from four per month to two, she asked for data showing that the student was making sufficient progress in that area to justify the reduction. Id. at 133-34. None was available at the meeting, so the school agreed to provide him three hours per month, produce the data at a later date, and thereafter revisit the issue. Id. at 134. Ms. Hodges testified that she never received the data. Id. As to behavioral services, Ms. Hodges testified that the

school social worker provided neither direct nor consultative services, but that the Board-Certified Behavior Analyst (also known as a "BCBA") at Deal Middle School, who functioned as a consultant on Applied Behavior Analysis (a research-based teaching methodology also known as "ABA"), was to provide direct services to Edward. Id. at 135.

iii. Deal Middle School Special Education Teacher Annie Mengistu

Ms. Mengistu was Edward's special education teacher at Deal Middle School, ECF No. 21-4 at 113-15, which he attended from the beginning of the 2018-2019 school year until he transferred to Hardy Middle School. She testified that she had been a special education teacher for sixteen years, first training with the Houston Independent School District and also completing two years working with special education students, including students on the autism spectrum, in Addis Ababa. Id. at 112, 130. In response to Plaintiffs' counsel's question asking whether she had "received any specific ABA training, Applied Behavior[] Analysis," she replied that she had not, but then qualified that answer by saying, "Other than DCPS trainings." Id. at 130. She did not remember the details of those trainings, including when they occurred. Id. Plaintiffs did not seek to have her qualified as an expert as to their questioning, but the hearing officer found her qualified as an expert in special education at DCPS' request prior to its cross-examination. Id. at 136.

Ms. Mengistu testified that she did not use a "specific curriculum" to instruct students in reading, but "pull[ed] from different places and modif[ied] to the needs of the students." Id. at 116. She used a number of different research-based programs, such as Edmark, Unique, and Lexia. Id. at 117. In math, she used i-Ready, which functions as both an assessment plan and a curriculum-design program, and also "pulled from" the Unique curriculum. Id. at 122-23. In consultation with Ms. Katz, the social worker at Deal Middle School, Ms. Mengistu worked with Edward regarding his Emotional, Social, and Behavioral Development goal related to body orientation and eye contact, providing "a lot of practice in the classroom" along with visual modeling and prompts. Id. at 127-28. She further testified that Edward's prevalent stimming behavior observed at the beginning of the 2018-2019 school year had diminished by the time he transferred to Hardy Middle School. Id. at 133.

Ms. Mengistu testified that Edward was one of her students with "higher needs." Id. at 115. Addressing the 2018 IEP, Ms. Mengistu explained that some goals were repeated because Edward had not yet mastered them at the end of the prior school year or was not able to demonstrate to her satisfaction at the beginning of the 2018-2019 school year that they were mastered. Id. at 124-25, 126, 140. She opined that the programming prescribed for Edward in the 2018 IEP was "appropriate for his level of performance," and noted that students with his "cognitive profile"—a full scale IQ measured at 59—and his attention deficits would "experience significant and severe difficulty in retaining and otherwise implementing skills over time." Id. at 138. Indeed, such students may master a particular skill and thereafter lose that mastery, so instruction requires "a lot of repetition." Id. at 138-39. As to regression after extended breaks from school, she testified that he was able to recoup skills in "a reasonable amount of time after the break." Id. at 139.

iv. Deal Middle School LEA Representative Arielle Alphonse

Ms. Alphonse was the LEA representative at Deal Middle School when Edward

attended during the 2018-2019 school year. ECF No. 21-5 at 101. She met frequently with Edward's teacher, Ms. Mengistu, to discuss data and reports about her students. Id. at 107. Ms. Alphonse testified that at some point during the 2018-2019 school year, a Board-Certified Behavior Analyst joined the staff at Deal Middle School to provide "support with ABA." Id. at 110, 120-21.

Ms. Alphonse attended the 2018 IEP team meeting as the LEA representative. Id. at 112. She stated that an adaptive P.E. evaluation was requested at that meeting but did not recall if it was completed. Id. at 114.

v. Deal Middle School Social Worker Hilary Katz

Ms. Katz, a social worker at Deal Middle School, provided consultative services for Edward—largely consulting with his teacher and making suggestions as to how his teacher could support him—during the portion of the 2018-2019 school year that he attended that school; she also observed him in the classroom setting and occasionally provided some direct services to him in that environment. ECF No. 21-6 at 22-24, 27. For example, as reflected in Edward's progress report for the period running from October 29, 2018, to January 18, 2019 (not long before his transfer to Hardy Middle School), Ms. Katz attempted to counter his "increased impulsivity and agitation" by creating a "visual with a calming plan as well an incentive jigsaw puzzle and visual to help keep [him] grounded and productively communicating." Id. at 26; see also ECF No. 17-1 at 14. She also noted that the regular Communication and Education Support program had "a social emotional component" with lessons focused entirely on the area of social and emotional skills. ECF No. 21-6 at 28. His dedicated aide also "provide[d] support while ... encouraging independence." Id. at 36. In Ms. Katz's opinion, Edward did not require regular provision of direct services from a social worker, although she testified that she would have provided such services if they were requested. Id. at 38.

Ms. Katz took part in the 2018 IEP meeting and was responsible for the Emotional, Social, and Behavioral section of that IEP. Id. at 33. The goal in that section (proper body orientation and eye contact during conversation) was repeated from his prior IEP because he "was still progressing" according to the teacher and paraprofessional in his classroom, who reported his progress to Ms. Katz. Id. at 34. She testified that Edward was "flourishing" in his classroom at Deal Middle School. Id. at 36-37.

vi. Deal Middle School Occupational Therapist Sara Haile

Ms. Haile was the occupational therapist who worked with Edward at Deal Middle School. ECF No. 21-5 at 10. She provided two hours per month of direct services outside the general education environment and 30 minutes per month of consultative services, which consisted of observation and recommendations to his teachers. Id. at 18, 26. She testified that she worked with Edward on organizational skills, such as placing his papers in a binder, but did not use any particular "organizational programs" in that area. Id. at 16. For handwriting, she used the research-based program Handwriting without Tears and for typing she used typingclub.com. Id. To reduce his stereotypic behaviors, she used a multisensory approach and other research-based techniques like sensory fidgets, sensory breaks, and vestibular and proprioceptive measures.¹² Id. at 21-22, 24.

12 Ms. Haile explained the term "proprioceptive" as "recognizing your body and a space between" and "vestibular" as "about movement and gravity." Id. at 21. Merriam-Webster's Unabridged Dictionary defines "proprioceptive" as "activated by, relating to, or being stimuli produced within the organism (as by movement or tension in its own tissues)." Proprioceptive, Merriam-Webster's Unabridged Dictionary. Merriam-Webster's Collegiate Dictionary defines "vestibular" as "of, relating to, or affecting the perception of body position and movement." Vestibular, Merriam-Webster's Collegiate Dictionary.

Ms. Haile extrapolated Edward's occupational therapy goals in the 2018 IEP from Common Core, which are research-based programming and instruction standards. Id. at 24. She testified that the level of occupational therapy services provided were appropriate for Edward. Id. at 25.

vii. Hardy Middle School Social Worker Kylen Mahaney

As noted, Ms. Mahaney worked as a school social worker at Hardy Middle School, ECF No. 21-4 at 39, which Edward attended from approximately March to June 2019 and for the 2019-2020 school year. Ms. Mahaney testified that, although she herself had not been trained in Applied Behavior Analysis, that methodology was used in the Communication and Education Support classrooms at Hardy Middle School. Id. at 57, 65-67. She stated that she provided consultation services to Edward's teacher and Edward's parents and that Edward's mother declined direct services in social skills.¹³ Id. at 42, 49. She consulted with the teacher once per month but did not have regular contact with Edward's mother until distance learning started in March 2020, after which they communicated frequently. Id. at 62, 64.

13 In rebuttal, Edward's mother asserted that she had "no recollection" of Ms. Mahaney offering direct services when Edward transferred to Hardy Middle School. ECF No. 21-7 at 59.

Ms. Mahaney was part of the IEP team that developed the 2019 IEP—specifically, she developed the Emotional, Social, and Behavioral Development section and its goal of reducing picking behavior. Id. at 45. She testified that, after Edward first transferred to Hardy Middle School, his mother noted that his stereotypic behaviors had increased while he was at his prior school; those behaviors continued, as expected, with the transition to the new school, but his teacher reported that they reduced when he got acclimated. Id. at 59-60. In the 2019-2020 school year, the picking seemed to be from boredom rather than nervousness. Id. at 66. Because Ms. Mahaney was not able to spend a significant amount of time in student observation, she asked Edward's teacher and paraprofessional for input on the behavior and on his progress. Id. at 47. Ms. Mahaney had not worked on self-advocacy with Edward until a goal in that area was added to the 2019 IEP through an amendment in February 2020. Id. at 54-55.

viii. Hardy Middle School Occupational Therapist Elsie Laguerre

Ms. Laguerre began working as Edward's treating occupational therapist when he transferred to Hardy Middle School. ECF No. 21-4 at 79-80. During therapy, she addressed his handwriting and typing, as well as strategies to help him remain attentive to tasks and complete them with a limited amount of stimming and redirection. Id. at 80. She also worked to deter his picking behavior with fidgets and visual and verbal cueing. Id. at 84. Ms. Laguerre also performed Edward's Occupational Therapy Re-Assessment in November 2019. Id. at 87; see also ECF No. 17-1 at 67. According to her, the 2019 assessment showed improvement in "his visual motor subsets" as compared to the 2016 occupational assessment. ECF No. 21-4 at 93. He had also progressed in fine motor skills, as evidenced by improved typing and handwriting legibility, which

would in turn aid him in written expression. Id. at 102. That 2019 assessment also recommended a dedicated aide because he had "inconsistent carryover behaviors" and required some cueing in the academic setting, both of which a dedicated aide could assist with. Id. at 87-88. Ms. Laguerre was responsible for the Motor Skills/Physical Development section in the 2019 IEP, which included a goal of "writ[ing] four to five sentences with 80 percent accuracy for correct letter sizing and line orientation with minimal prompts to self-edit his work in four out of five opportunities." Id. at 89-90; see also ECF No. 17-2 at 35. She pointed out during her testimony that the self-editing component was an addition from the prior IEP and is in "a higher level skill set" because it involves "taking ownership of [one's] mistakes instead of [having] somebody pointing [them] out." ECF No. 21-4 at 90. She stated that the decision was taken to reduce Edward's occupational therapy time in the 2019 IEP from two hours to one hour per month to help him "generalize" the skills he was learning in occupational therapy, so that he would use them outside that therapy setting, as well. Id. at 105. Ms. Laguerre also testified that Edward "sometimes ... doesn't advocate for himself." Id. at 87.

ix. Hardy Middle School Speech-Language Therapist Lesa Gibson

Ms. Gibson was Edward's speech-language therapist at Hardy Middle School for part of the 2018-2019 school year and the whole 2019-2020 school year. ECF No. 21-6 at 5-6, 13. Because she shared an office with Ms. Laguerre, Edward's occupational therapist, the two consulted with each other about the student. Id. at 6-7. Ms. Gibson testified that Edward had trouble with attention, so she used various techniques to help him focus, although none worked for any extended period. Id. at 7-8. She worked with him on expressive and receptive language; his IEP did not set a goal in pragmatic language.¹⁴ Id. at 8. She also performed his speech-language assessment as part of his 2019 triennial review. Id. at 10. She testified that Edward's trouble focusing during the tests resulted in scores that were not representative of his level of functioning; according to her, Edward "can do more than the test shows." Id. at 10. For example, he was able to answer certain "inference questions," which require use "of all the information [a student] already [has] to come up with an answer." Id. at 16. The fact that he could "sometimes" answer such questions is an indication of "high skill" that was not reflected in the results of the speech-language assessment. Id.

14 "Early definitions of pragmatic language refer to the use of language in context; encompassing the verbal, paralinguistic, and non-verbal aspects of language. Contemporary definitions have expanded beyond just communicative functions to include behaviour that includes social, emotional, and communicative aspects of language." Lauren Parsons, et al., A Systematic Review of Pragmatic Language Interventions for Children with Autism Spectrum Disorder, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5398499 (last visited June 7, 2022).

Ms. Gibson asserted that she believed that "the delivery of [Edward's speech-language] services should be changed" so that they would not be provided exclusively in one-on-one sessions, but also in the CES classroom, which would allow his speech-language issues to be addressed in tandem with social and pragmatic skills in a more natural communication environment. Id. at 14.

x. Hardy Middle School LEA Representative Bryan Holcombe

Mr. Holcombe was the "LEA representative designee for the special education

department at Hardy [Middle School]" in 2018-2019 school year, during which Edward transferred to that school. ECF No. 21-5 at 86-87. As LEA representative, he functioned like a department chair and "sort of took the lead with most matters of special education" at Hardy Middle School. Id. at 88-89. Additionally, because the special education teacher who was supposed to be Edward's classroom teacher and case manager was ill and would not be returning to the school, Mr. Holcombe began to oversee Edward's case, checking in several times a week with the long-term substitute, classroom paraprofessionals, and the dedicated aide. Id. at 89, 94. Having consulted with them, he also completed a progress report for Edward for the final reporting period of the 2018-2019 school year, which asserted that, based on work samples and observations, he was making progress on his academic IEP goals. Id. at 92-93; see also ECF No. 17-1 at 42-44.

xi. Hardy Middle School Psychologist Arden Matthew

As with each of the witnesses discussed above, Mr. Matthew was called as a percipient witness by Plaintiffs as part of their case-in-chief. ECF No. 21-5 at 38. He was also one of the two relevant witnesses called by DCPS, at which point he was qualified as an expert in school psychology. ECF No. 21-7 at 17-18.

During Plaintiffs' questioning, Mr. Matthew testified that he was familiar with the needs of children with autism and asserted that a primary area of concern with such students is social interaction, including skills geared to responding appropriately in social settings. ECF No. 21-5 at 40-42. Edward was reluctant to engage with Mr. Matthew when he transferred to Hardy Middle School and was "cautious" and "apprehensive" about who he interacted with. Id. at 42, 46. However, Mr. Matthew was able to observe him daily in the morning, and during recess and lunchtime (although not in the classroom) and had the opportunity to observe him "up close" when he administered the Woodcock-Johnson Tests of Achievement in November 2019, during which Edward communicated with and responded to him. Id. at 42, 46, 54, 60-61. During the test, Edward exhibited some fidgeting behavior and had issues with attention, requiring Mr. Matthew to "redirect him maybe three to six times per item ... on just about all of the subtests." Id. at 44. He described Edward as a "unique case," noting that his "inattention and his distractibility impede[d] his performance" on norm-based tests like the Woodcock-Johnson, so that it was difficult to "get a full picture" of what he is "truly capable of." Id. at 47. Indeed, Mr. Matthew appreciated the efficacy of the Woodcock-Johnson for providing a "broad picture" of a student "compared to his same age peers," but testified that it would not show the same growth as would informal assessments of his classroom performance by his teacher. Id. at 44. Thus, in Mr. Matthew's experience, when measuring progress, more emphasis should be put on classroom observations, teacher input, and work samples than on norm-based tests. Id. at 49, 62. He also testified that testing showed that Edward had made significant progress in some areas but indicated that in others, such as math, he may have reached his "ceiling." Id. at 64-65.

Mr. Matthew testified that Edward "was being serviced appropriately," had "appropriate goals" in both speech and occupational therapy and was "making ... personal progress within the CES program." Id. at 59. He did not agree that Edward would benefit from a "nonpublic separate day school" without general education students. Id. at 77-78. He further testified that the CES classroom at Hardy Middle School utilized Applied Behavior Analysis,

a research-based program, as well as utilizing research-based interventions in areas of social modal connections, interpersonal relationships, social pragmatics, and daily living skills. Id. at 74-75.

When called by DCPS and qualified as an expert, ECF No. 21-7 at 17-18, Mr. Matthew, testified, again, that many sources will be utilized in making student assessments, including classroom observations and information form teachers, related service providers, formal interviews, clinical interviews, and structured interviews. Id. at 19. In Edward's case, those assessments, unlike some of his results on "standard scores and formal assessment" showed that he was making progress and "doing very well." Id. at 23. Such discrepancies can be explained in part by his deficits in attention and concentration, which caused his performance to vary day-by-day and even depending on the time of day he was being assessed. Id. at 23-24. He did not believe that Edward should be placed in a non-public separate day school, asserting that he had "the most appropriate supports" at Hardy Middle School, including his dedicated aide, appropriate goals, and a special education teacher specializing in students with Autism Spectrum Disorder. Id. at 22. As to Edward's regression after breaks from school, Mr. Matthew asserted that the student was able to recoup his skills in a reasonable amount of time and therefore was not a candidate for extended school year services. Id. at 25-26.

xii. DCPS Autism Specialist Mark Walker

As a "specialist with the autism team [at] DCPS," Mr. Walker worked with all the teachers in the school district's CES classrooms, providing "resources, support, equipment, tools, whatever's needed so that the teachers can be successful in their classrooms with their students." Id. at 34. He was qualified at the hearing as an expert in "special education with regard to appropriate curriculum development and programming implementation for students with disabilities." Id. at 36. He testified that he had known Edward since the student was seven years old and also knew his parents. Id. at 36-37. Mr. Walker attended the 2018 IEP meeting at Deal Middle School, but did not take part in developing the IEP that resulted from that meeting. Id. at 37-39. According to Mr. Walker, at that meeting, the parents expressed concern about Edward's progress in the program at Deal Middle School, which was new and designed for "students at the higher end of the spectrum." Id. at 39. He therefore began a discussion with Edward's parents about a different placement and set up a site visit at Hardy Middle School, where the program had fewer students and catered to students who were "at the moderate to lower level." Id. at 39-40. He opined that the CES classroom was an appropriate placement for Edward because it was a "self-contained classroom with teachers who are trained and specifically focused on autism as ... the primary disability." Id. at 41.

Mr. Walker characterized Edward as "a pleasant, wonderful kid," whose "level of cooperation is very high," but whose interactions with his peers is "minimal." Id. at 42. Personnel at Deal Middle School and Hardy Middle School were trying to determine his "ceiling"—that is, what tasks Edward would be able to perform independently. Id. He further testified that it is typical for a student with autism, which is a sensory disability that affects the ability to recall information, to demonstrate mastery of a goal at one point and later be unable to demonstrate that skill again, requiring repetition. Id. at 42-43. As to Edward's specific performance, Mr. Walker asserted that "[o]nce a path is clear to him, he [is] able to sprint ahead," such that, "once he got the path and it was clear in

his own mind, he could score higher than his grade level in some [areas]." Id. at 43. However, "the recall and being able to do it a second or third time was affected" in part by his stereotypic behaviors—stimming and scripting—in which he would "get caught up," making it difficult to get him back on task. Id.

Mr. Walker also described some techniques used in the Communication and Education Support program, such as "discrete trial training," which is "identifying a particular skill and then breaking it down into its individual components"; "natural environment training," in which the student is observed to determine his "natural inclinations" and those inclinations are used to aid in instruction; and "prompting and fading," in which a sentence or problem is repeated to the student in full and then less and less of the sentence is provided so the student can "jump into the sentence" and complete it; and using an "ABA binder" for each student that includes samples of the student's academic work, "behavior samples, token economies, snapshots, ... and the techniques that are implemented to try to improve [that] student's performance". Id. at 44, 46, 48, 53. He opined that the Communication and Education Support program at Hardy Middle School, which uses ABA principles (as do all DCPS programs focusing on autism) was appropriate for Edward. Id. at 49.

E. The Hearing Officer's Decision

The hearing officer issued his decision in October 2020, dismissing Plaintiffs' due process complaint with prejudice. ECF No. 15-1 at 42. He did not reconsider his statute of limitations decision. Id. at 23 n.2. The substantive issue was (as noted above) whether Edward was offered inappropriate IEPs in November 2018 and November 2019 because those IEPs

did not contain: 1) sufficient speech and language therapy and/or occupational therapy; 2) any or sufficient recommendations for staff to employ research-based programming within general education, outside general education, and/or during related services; 3) any or sufficient recommendations to address [Edward's] deficits in self-advocacy skills; and 4) any or sufficient recommendations to address [Edward's] functional academic skills; and 5) insufficient and inappropriate goals and objectives. Petitioner also contended that the IEPs did not include any or sufficient recommendations to address [Edward's] social skills and pragmatic language.

Id. at 7. After setting out the allocation of the burdens of production and persuasion under District of Columbia law—the party requesting the due process hearing must first establish a prima facie case that a student's proposed or existing IEP or placement is inappropriate, after which the burden of persuasion shifts to the public agency to show the existing or proposed IEP or placement is appropriate, see id. at 23 (citing D.C. Code § 38-2571.03(6)(A)(i))—the hearing officer addressed each of those five allegations with respect to each of the two IEPs at issue. Ultimately, he found that Plaintiffs "did not meet the burden to present a prima facie case ... or, alternatively, [that DCPS] showed that its recommendations for [Edward] were appropriate" in all challenged areas. Id. at 26, 27, 28, 29, 30, 32, 33, 36, 37, 38, 39, 40.

1. The 2018 IEP

a. Speech and Occupational Therapy

The 2018 IEP reduced Edward's speech-language therapy from four hours per month (as prescribed in the 2017 IEP) to three hours per month; it also prescribed two hours per month of direct occupational

therapy services and one-half hour of consultative occupational therapy services (as prescribed in that prior IEP). Id. at 25.

As to speech-language therapy, the hearing officer noted that Plaintiffs "did not present an expert witness in support of [their] position that [Edward] required more speech-language pathology than this IEP recommended," but instead "relied on the language of the IEP," which indicated that Edward "presented with a decreased ability to comprehend visually-presented information of length and complexity." Id. However, the hearing officer found that language "did not refer to [Edward's] recent progress," as Plaintiffs would have it, but rather characterized [Edward] generally"; indeed, it was repeated from the 2017 IEP. Id. at 25-26. The hearing officer also found that it was also undermined by other evidence in the record: (1) the 2018 IEP, like the Prior Written Notice of that same date, stated that Edward had shown improvement in understanding figurative and idiomatic language; (2) the Prior Written Notice found it was not beneficial to continue working on the same challenges or to pull him away from his peers; (3) Ms. Gibson (Edward's speech-language therapist at Hardy Middle School) testified that four hours per month was not necessary and that Edward had trouble concentrating during the sessions; (4) witnesses from Deal Middle School testified that the 2018 IEP provided an appropriate amount of support; and (5) evidence showed that "the entire CES program" that Edward attended "is based on addressing a student's communication needs through delivery of ABA-based instruction." Id. at 26.

More, the sole witness Plaintiff presented on the issue of Edward's occupational therapy hours—Ms. Haile, the student's occupational therapist at Deal Middle School—testified that the level of occupational therapy hours provided in the 2018 IEP was appropriate. Id. at 27. The hearing officer further found that testimony supported by documentary evidence in the record showing that Edward was making progress on some occupational therapy goals, such as notations in the 2018 IEP that Edward was "cooperative, completed assignments, had good organizational skills, and that his[] written production was legible" and progress reports from both the 2017-2018 and 2018-2019 school years, which also showed gains on occupational therapy goals. Id. at 27.

Accordingly, as to both speech-language and occupational therapy, the hearing officer found that Plaintiffs "did not meet the burden to present a prima facie case ... or, alternatively, [DCPS] showed that its recommendations for [Edward] were appropriate." Id. at 26, 27.

b. Research-Based Programming and Instruction

The IDEA requires that an IEP include "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable." 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Plaintiffs asserted that the 2018 IEP "was infirm because it did not provide for research-based programming." ECF No. 15-1 at 27. In rejecting that claim, the hearing officer first cited Damarcus S. v. District of Columbia for the proposition that "even if an IEP does not explicitly state that a student will receive 'research-based instruction,' it does not follow that the student will not actually receive that type of instruction." ECF No. 15-1 at 28 (citing Damarcus S., 190 F. Supp. 3d 35, 51-52 (D.D.C. 2016)). The hearing officer then discussed the record evidence that Edward did receive such instruction, including evidence that the DCPS' Communication and Education Support classrooms "provide instruction through the APA methodology" and testimony

from Ms. Mengistu (the student's special education at Deal Middle School) that her classroom used the Edmark, Lexia, and Unique programs.¹⁵ Id. Finally, he noted that Plaintiffs had called no witness to support their argument "that the IEP needed to include language requiring research-based programming or instruction." Id. He therefore rejected Plaintiffs' arguments on this issue. Id.

15 The hearing officer's decision erroneously identifies the witness who so testified as "Witness D," which, according to the appendix attached to the opinion is Ms. Haile. See ECF No. 15-1 at 28, 44. The witness should have been identified as "Witness C," Ms. Mengistu. See id. at 44; see also ECF No. 21-4 at 117 (testimony of Ms. Mengistu).

c. Self-Advocacy Skills

As to Plaintiffs' arguments that the 2018 IEP was insufficient because it failed to include services relating to self-advocacy skills, the hearing officer noted that the sole evidence offered that Edward needed such services during the 2018-2019 school year was an assertion from his mother that he "c[a]me home with bruises on at least one occasion." Id. at 28. The hearing officer found that insufficient for a number of reasons: (1) there was no documentary evidence supporting the contention that "the bruises were a function of [Edward's] lack of self-advocacy skills," (2) no witness supported the contention that he needed self-advocacy help in November 2018, (3) nothing in the record indicated that the parents raised the issue in the 2018 IEP meeting, (4) Plaintiffs "did not clearly describe what services [Edward] was failing to advocate for," and (5) Plaintiffs "did not provide any caselaw finding a FAPE denial because a student's IEP did not contain services relating to self-advocacy." Id. at 28-29. Accordingly, the hearing officer rejected this argument. Id. at 29.

d. Functional Academics

As to Plaintiffs contention that the 2018 IEP did not offer sufficient recommendations to address Edward's functional academic skills, the hearing officer first noted that they "did not present a witness to support" their position on this issue. Id. He then found that the record showed Edward was working on basic skills in math, reading, and writing while at Deal Middle School. Id. He also noted that Ms. Mengistu, Edward's special education teacher at Deal Middle School who worked on adaptive/daily living skills, did not state in her testimony that he needed additional services in the area and that Plaintiffs failed to "describe the nature of the services that should have been added to the ... IEP in this area." Id. For those reasons he again rejected Plaintiffs' position. Id. at 30.

e. Goals and Objectives

The hearing officer characterized Plaintiffs' "main concern on this issue" as stemming from the fact that "goals in the [2018 IEP] were repeated from the [2017 IEP]." Id. He recognized that the court in Damarcus S. "found that 'the wholesale repetition' of goals and objectives 'indicates an ongoing failure to respond to [a student's] difficulties,'" but noted that other cases have approved repeating some goals from year to year where the student had made progress but had not yet achieved the goal. Id. (alteration in original) (quoting Damarcus S., 190 F. Supp. 3d at 52-53) (citing Jefferson Cty. Bd. of Educ. v. Amanda S., 418 F. Supp. 3d 911, 918-19 (N.D. Ala. 2019), and Bohn v. Cedar Rapids Cmty. Sch. Dist., No. 15-cv-106, 2016 WL 6828207, at *9 (N.D. Iowa Nov. 18, 2016)).

The hearing officer then addressed two goals that were repeated in the 2018 IEP from the 2017 IEP: (1) a "math goal relating to completing 'division expressions' with one prompt" and (2) a reading goal

related to "writing a three-to-five sentence summary of text with one prompt." Id. at 30-31. As to the math goal, the hearing officer recognized that a May 2018 progress report from Hearst Elementary School stated that the goal had been met but noted that Ms. Mengistu's first progress report of the 2018-2019 school year noted that Edward "would forget the concept and required modeling to show mastery." Id. at 30. The reading goal had not been mastered by the end of the 2017-2018 school year and Ms. Mengistu explained in her testimony that because she wanted the student to master his prior goals before introducing new ones, the goal was repeated. Id. at 31. The hearing officer found such testimony consistent with the testimony of Mr. Walker, DCPS autism specialist, that Edward has severe memory issues that require skills to be taught repeatedly before he could achieve mastery. Id. According to the hearing officer, Plaintiffs offered nothing to undermine Mr. Walker's testimony "or even to testify that the goals were deficient or inappropriate in the 2018 IEP." Id.

Plaintiffs also argued that the goals in the 2018 IEP were not measurable. Id. The hearing officer rejected that argument, finding that "most of the goals in [that] IEP were in effect self-measurable." Id. He found that there was "no testimony or evidence in the record to suggest that the goals were not measurable, or that a trained special education teacher or service provider would have difficulty managing [the] goals." Id. at 32. As to Plaintiffs' contention that the goals were inappropriate because the IEP "did not clearly indicate [Edward's] actual levels of functioning," the hearing officer pointed out that "there is no requirement [in the IDEA regulations] that goals contain 'baselines.'" Id.

f. Social Skills and Pragmatic Goals

Finally, the hearing officer rejected Plaintiffs' argument that the 2018 IEP should have contained more services relating to social and pragmatic language skills. He pointed to unrebutted testimony from Mr. Walker that the Applied Behavior Analysis services provided to Edward addressed such issues and from Ms. Katz, the social worker at Deal Middle School, that Edward's full time aide provided him "additional opportunities to engage." Id. at 33. The hearing officer further pointed out that Ms. Katz testified that Edward's mother did not want direct services in this area and that "there is no reference in the record to [her] asking for such services at the IEP meeting." Id.

In sum, the hearing officer found that Plaintiffs had failed to make a prima facie case that the 2018 IEP was inappropriate or that, in the alternative, DCPS had shouldered its burden to show that the IEP was appropriate. Id.

2. The 2019 IEP

a. Speech and Occupational Therapy

The 2019 IEP decreased Edward's speech-language pathology services form three hours per month to two hours; they were returned to three hours per month through an amendment in February 2020. Id. at 34. Direct occupational therapy services were decreased from two hours per month to one hour; consultative services stayed constant at one-half hour per month. Id. Plaintiffs contend the speech-language and occupational therapy services provided in the 2019 IEP were insufficient.

The hearing officer rejected Plaintiffs' assertion that Edward's 2019 speech-language assessment supported their argument. Id. According to the hearing officer, that assessment showed that Edward regressed in some areas but that his "language

skills were increasing overall." Id. The hearing officer also noted that Ms. Gibson, the speech-language pathologist at Hardy Middle School who administered Edward's 2019 assessment, testified that the test results underestimated the student's abilities and "did not testify in support of the contention that the offer to provide 120 minutes of speech-language pathology per month denied [Edward] a FAPE." Id. The hearing officer again found that language in the 2019 IEP that Edward had a decreased ability to comprehend longer and more complex verbal information (which, as discussed above, was included in both the 2017 IEP and the 2018 IEP) was not an assessment of his "then-current issues and needs," but instead a summary of his overall deficits in that area. Id. at 34-35. He further noted that Plaintiffs had not presented expert testimony that Edward required more speech-language therapy. Id. at 35.

The hearing officer noted that the record evidence indicated that the "entire CES program at DCPS is based on addressing a student's communication needs, including through the delivery of ABA instruction" and asserted that Hardy Middle School "was particularly conscientious in delivering this service." Id. For example, Ms. Katz delivered her speech-language therapy along with occupational therapist Ms. Laguerre because Edward "would attend better that way." Id. More, "nothing in the IEP or OEP progress reports ... suggest[s] that [Edward] was materially affected by the IEP's change in the speech-language pathology mandate" from three hours per month to two hours per month for the three-month period between the end of November 2019 and the end of February 2020, when Edward once again began receiving three hours per month of speech-language therapy. Id.

Turning to occupational therapy services, the hearing officer pointed out that progress reports indicated that Edward was progressing in this area, as did his 2019 occupational therapy assessment. Id. While scores on some tests administered in that area showed a decline in some areas, Mr. Walker offered unrebutted testimony that such test scores "were not always the best tool to determine [Edward's] level of progress." Id. More, the hearing officer emphasized that Ms. Laguerre, who administered that assessment, offered similarly unrebutted testimony that Edward had greater skills than the results reflected and supported the IEP. Id. at 36.

b. Research-Based Programming and Instruction

The hearing officer noted that Plaintiffs supported their argument on this issue by pointing to "a variety of test scores [from Edward's 2019 psychological assessment] which showed that [he] made inconsistent progress, or no progress at all, in reading, mathematics, and writing," as well as to progress reports from Hardy Middle School. Id. He found the argument unconvincing, pointing to an increase in Edward's scores in broad reading, broad math, and broad written expression from his 2016 test scores and progress reports from the final reporting period of the 2018-2019 school year and the first reporting period of the 2019-2020 school year showing that the student had made some progress on academic goals. Id. He further noted that Plaintiffs had not rebutted Mr. Walker's testimony that test scores "are not the best way to determine [Edward's] progress." Id.

c. Self-Advocacy Skills

On this issue, Plaintiffs focused on the inappropriate touching incident that occurred at Deal Middle School to argue that Edward required "self-advocacy skills to address peer issues at school." Id. at 37.

Rejecting that argument, the hearing officer found that the record did not indicate that "self-advocacy would have addressed [that] incident"; that there was no "credible evidence that [Plaintiffs] requested such services at the 2019 IEP meeting"; that testimony showed that Edward's mother declined behavioral support services;¹⁶ and that Plaintiffs failed to call a witness to support their position that Edward needed self-advocacy support at the time the 2019 IEP was developed. Id.

16 The hearing officer's decision erroneously identifies the witness who so testified as "Witness A," which, according to the appendix attached to the opinion is Brenda Nishimura, see ECF No. 15-1 at 21, 44, the school psychologist at Hearst Elementary School when Edward attended that school, who testified only at the hearing on the statute of limitations issue, see ECF No. 21-3 at 97 (testimony of Ms. Nishimura). The witness should have been identified as "Witness A-1," Ms. Mahaney. See id. at 44; see also ECF No. 21-4 at 49 (testimony of Ms. Mahaney).

d. Functional Academics

On this issue, the hearing officer found that Plaintiffs failed to describe what functional academics needed to be addressed and failed to provide a witness or documentation to support their position that Edward needed further instruction in this area. Id. He also found that the record reflected that his teacher at Hardy Middle School addressed such issues as part of the Communication and Education Support program curriculum, as reflected in Edward's progress reports. Id.

e. Goals and Objectives

The hearing officer rejected Plaintiffs' contention that the goals in the 2019 IEP were repeated from the 2018 IEP as factually inaccurate, finding that "most of the goals in [the 2019 IEP] were new." Id. at 38. He recognized that one of the reading goals from the 2018 IEP was repeated on the 2019 IEP as an adaptive/daily living goal, and that the goal had been mastered during the prior school year, but pointed out that "the goal was written broadly, suggesting that a determination of mastery could be subjective" and that progress notes from the first reporting period of the 2019-2020 school year indicated that Edward "benefitted from teacher support" on the goal and was making progress. Id. He further acknowledged that the written expression goal (writing compound sentences) and motor skills/physical development goals were repeated, but explained that the neither of those goals had been met during the prior school year. Id. at 38-39. He further found that any repetition of Edward's goals "was a function of [his] low cognitive ability and memory issued, which requires frequent repetition of instruction." Id. at 39.

Addressing the argument that the goal requiring Edward to communicate his needs and interests both inside and outside of the classroom and the goal related to his picking behavior were not measurable, the hearing officer noted that there was "no testimony or evidence in the record to suggest that a special education teacher would have a problem measuring such goals, since [Plaintiffs] failed to call an expert witness to support [their] position on [the] issue." Id. Additionally, the hearing officer found that "a competent special education teacher could easily figure out a way to measure a goal related to communication, perhaps with a verbal prompt." Id.

f. Social Skills and Pragmatic Language

Finally, the hearing officer discounted Plaintiffs' argument that the 2019 IEP did not provide appropriate support in social skills and pragmatic language by noting that, in response to a concern that Edward's pragmatic language skills were decreasing, the IEP team added a new goal

for him to verbally ask for clarification with minimal assistance. Id. at 39-40. To Plaintiffs' claim that direct services should have been provided, the hearing officer pointed again to Ms. Katz's testimony that Edward's mother did not want direct services in this area. Id. He further emphasized the Communication and Education Support program's commitment to ABA, which is designed to address students' communication needs, relying on Mr. Walker's testimony regarding the ABA binder that is created for all students, the testimony of Hardy Middle School social worker Ms. Mahaney¹⁷ that ABA was a main focus in the classroom, and the fact that the 2019 IEP reflected that Edward "was at least offered a social skills class at Hardy Middle School." Id. (citing ECF No. 17-2 at 44, which reflects that Edward "takes Reading, Math, ELA, Social Skills, History/Science, Art and PE").

17 The hearing officer's decision erroneously identifies the witness who so testified as "Witness B," which, according to the appendix attached to the opinion is Ms. Laguerre. See ECF No. 15-1 at 40, 44. The witness should have been identified as "Witness A-1," Ms. Mahaney. See id. at 44; see also ECF No. 21-4 at 65 (testimony of Ms. Mahaney).

In conclusion, the hearing officer denied Plaintiffs' claims and dismissed the due process complaint with prejudice. Id. at 42.

II. LEGAL STANDARDS

The IDEA guarantees children with disabilities the right to a free appropriate public education, which is defined as "special education and related services" provided at public expense that "conform[] with the [student's] individual education program." 20 U.S.C. §§ 1400(d)(1)(A), 1401(9); 1412(a)(1). Thus, the primary vehicle for ensuring that students identified as disabled receive a FAPE is the creation and implementation of an IEP setting forth the services to be provided to meet that student's needs. See Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (describing the IEP as the "modus operandi" of the IDEA); 20 U.S.C. § 1414(d)(1)(A)-(2)(A). The plan is developed by a student's IEP team, which includes the student's parents, teachers, and other educational specialists. 20 U.S.C. § 1414(d)(1)(B). An IEP contains assessments of the student's needs, strategies to meet those needs, and goals used to measure the effectiveness of the plan. 20 U.S.C. § 1414(d)(1)(A). The IEP team must develop an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 999, 197 L.Ed.2d 335 (2017).

Parents who claim that their child was denied a FAPE may request an administrative due process hearing before an independent hearing officer. 20 U.S.C. § 1415(f)(1). If the parent is "aggrieved by" the hearing officer's determination, the parent may seek judicial review of the hearing officer's decision in the district court. 20 U.S.C. § 1415(i)(2). As courts in this District have explained, although the conventional vehicle for review of such a decision under the IDEA is a motion for summary judgment, the court does not utilize "a true summary judgment procedure. Instead, the district court essentially conduct[s] a bench trial based on a stipulated record." G.G. ex rel. Gersten v. District of Columbia, 924 F. Supp. 2d 273, 277 (D.D.C. 2013) (alteration in original) (quoting L.R.L. ex rel. Lomax v. District of Columbia, 896 F. Supp. 2d 69, 73 (D.D.C. 2012)). So, where the parties do not present new evidence to the reviewing court, cross motions for summary judgment are treated as motions for judgment based on

the administrative record. Id. at 278; see also N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 66 (D.D.C. 2010) ("When no additional evidence is introduced in a civil suit seeking review of a HOD, a motion for summary judgment operates as a motion for judgment based on the evidence comprising the record."). That is, generally, a court will "review[] the administrative record and base[] its decision on the preponderance of the evidence, where it grants relief as deemed appropriate," id. (citing 20 U.S.C. § 1415(i)(2)(C)(iii)), while according the hearing officer's decision "due weight," Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The party challenging the hearing officer's decision must "at least take on the burden of persuading the court that the hearing officer was wrong." Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)); see also Brown v. District of Columbia, No. 17-cv-348, 2019 WL 3423208, at *6 (D.D.C. July 8, 2019) ("The party challenging the [HOD] must show by a preponderance of the evidence that the hearing officer's decision is incorrect.").

The IDEA'S preponderance of the evidence standard does not authorize unfettered de novo review and it is "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206, 102 S.Ct. 3034. In the IDEA context, the required "deference is at its apex when the court is reviewing matters of 'educational policy[]' or choices implicating 'agency expertise,' and at its nadir when the decision lacks thorough, reasoned findings or opines on a purely legal question." Davis v. District of Columbia, 244 F. Supp. 3d 27, 38 (D.D.C. 2017) (first quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034, then quoting Kerkam, 862 F.2d at 887) see also, e.g., M.C. ex rel. Mrs. C v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) ("Judicial deference 'is particularly appropriate when ... [the hearing officer's] review has been thorough and careful" (ellipses in original) (quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998))). And where deference is at its ebb, a "district court may determine that the 'appropriate' relief is a remand to the hearing officer for further proceedings." Reid v. District of Columbia, 401 F.3d 516, 526 (D.C. Cir. 2005). Put simply, a court may not substitute its own views for those of the hearing officer. See Rowley, 458 U.S. at 206, 102 S.Ct. 3034; see also Endrew F., 580 U.S. at 399, 137 S. Ct. at 999 ("Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.").

Although a hearing officer's decision in an IDEA case may be accorded "'less deference than is conventional' in administrative proceedings," Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887), the conventional rule of administrative law that a court cannot affirm an administrative agency's decision on grounds not proffered by the agency still applies, See SEC v. Chenery, 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (holding that a court "may not supply a reasoned basis for the agency's action that the agency itself has not given"); see also Christopher S. ex rel. Rita S. v. Stanislaus Cnty. Office of Educ., 384 F.3d 1205, 1212 n.5 (9th Cir. 2004) (invoking Chenery in the IDEA context); State of Wash. v. U.S. Dep't of Educ., 905 F.2d 274, 279 (9th Cir. 1990) (same); W.S. v. District of Columbia, 502 F. Supp. 3d 102, 121 n.3 (D.D.C. 2020) (Brown Jackson, J.) (same). That is, where

Congress has entrusted a decision to an agency's discretion, a reviewing court "must judge the propriety of such action solely by the grounds invoked by the agency." Chenery, 332 U.S. at 196, 67 S.Ct. 1760.

III. DISCUSSION

As noted, Plaintiffs make two purely legal arguments that the hearing officer's decision must be disapproved. First, they contend that he misapplied his statute of limitations decision by barring their claims based on the 2017 IEP (from Hearst Elementary School), which was still in force at when Edward began the 2018-2019 school year at Deal Middle School. Second, they assert that the hearing officer erroneously determined that, in order to meet their burden to establish a prima facie case, Plaintiffs were required to present expert testimony. Plaintiffs' remaining claims focus on alleged deficiencies in the 2018 IEP and the 2019 IEP. The discussion below addresses each of the legal arguments and then turns to Plaintiffs' challenges to the sufficiency of the IEPs at issue.

A. Statute of Limitations

The parties agree that the IDEA's two-year statute of limitations runs from the date that a claimant knew or should have known about his or her injury; that is, a claimant may file a due process complaint within two years of the date he or she discovered or should have discovered the injury, even if that injury occurred more than two years prior to the filing of the due process complaint. See, e.g., G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 616 (3d Cir. 2015) ("[The IDEA's] limitations period functions in a traditional way, that is, as a filing deadline that runs from the date of reasonable discovery[.]"); Damarcus S., 190 F. Supp. 3d at 44-45 (adopting the Third Circuit's analysis in G.L.); see also 20 U.S.C. § 1415(f)(3)(C) ("A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint...."). The hearing officer's order regarding the statute of limitations issue finds that Plaintiffs' claims, which alleged that inappropriate IEPs developed in 2015, 2016, 2017, 2018, and 2019 denied Edward a FAPE, accrued on the date that each IEP was created. ECF No. 19-4 at 60. That is, the hearing officer found that Plaintiffs knew or should have known about the deficiencies in each of those IEPs on the date each was created. Importantly, Plaintiffs do not challenge that finding here. See ECF No. 29-1 at 21-22 ("[The hearing officer] found that the ... date on which [Plaintiffs] knew or should have known that DCPS was denying Edward a FAPE was the date of the development of each IEP itself.... [Plaintiffs] no longer contest [that ruling]; therefore, only the violations of FAPE in the two-year period prior to the due process complaint of June 19, 2020 are raised in this appeal."). They do, however, challenge the hearing officer's application of that ruling—specifically, his holding that, because the 2017 IEP was created more than two years prior to the filing of the due process complaint on June 19, 2020, Plaintiffs' claims related to the deficiencies of that IEP are time-barred. See id.

Plaintiffs argue that, because the 2017 IEP was in force for three months at beginning of the 2018-2019 school year (that is, until the 2018 IEP was offered on November 27, 2018), they were entitled to show that its deficiencies denied Edward a FAPE during those months, which fell within two years of the filing of their due

process complaint.¹⁸ ECF No. 29-1 at 19. To support their argument, they focus on the following language from the Third Circuit's decision in G.L.:

18 As noted supra note 9, the regular 2017-2018 school year ended on June 15, 2018, and the first day of the 2018-2019 school year was August 20, 2018. It is undisputed that Edward did not attend summer school during the break in summer 2018. Therefore, the only period after June 20, 2018 (two years prior to the filing of the due process complaint on June 19, 2020) that Edward's education was governed by the 2017 IEP extends from August 20, 2018, until November 27, 2018, when the 2018 IEP was offered.

[O]nce a violation is reasonably discovered by the parent, any claim for that violation, however far back it dates, must be filed within two years of the 'knew or should have known' [i.e., discovery] date. If it is not all but the most recent two years before the filing of the complaint will be time-barred....

ECF No. 29 at 20-21 (ellipses in original) (quoting G.L., 802 F.3d at 620); see also ECF No. 39 at 4-5 (quoting G.L., 802 F.3d at 620). Plaintiffs interpret this language to mean that the hearing officer should have considered any potential denial of a FAPE within the two years preceding the filing of the due process complaint, even though they admit that the claim as to the 2017 IEP accrued on November 28, 2017, the date it was promulgated, which was two years and seven months before the due process complaint was filed. See ECF No. 29-1 at 21-22 (stating that Plaintiffs no longer challenge the hearing officer's finding that their claims accrued at the time each IEP was developed). In Plaintiffs' words, "All denials of FAPE occurring within two years of a due process complaint, such as having in place an inappropriate IEP—even if, as here, that IEP was developed outside the two years—are within the scope of a due process hearing, and the Hearing Officer erred in deciding otherwise." Id. at 22.

That is not what G.L. and its progeny mean. Perhaps the easiest way to explain why is to return to first principles. It is axiomatic that a claim that accrues outside the applicable limitations period is not actionable (absent some statutory or common law exception, none of which are at issue here). See, e.g., Statute of Limitations, Black's Law Dictionary (11th ed. 2019) (defining the term as "[a] law that bars claims after a specified time period; [specifically], a statute establishing a time limit for suing in a civil case, based on the date when the claim accrued (as when the injury occurred or was discovered)"). G.L. repeatedly reaffirms that principle: "[The IDEA's] two-year statute of limitations ... functions in a traditional way, that is, as a filing deadline that runs from the date of reasonable discovery ...," 802 F.3d at 616; "claims that are known or reasonably should be known to parents must be brought within two years of that 'knew or should have known' date, and parents may not, without satisfying one of the two statutory exceptions, knowingly sit on their rights or attempt to sweep both timely and expired claims into a single 'continuing violation' claim brought years later," id. at 625. The words from G.L. that Plaintiffs italicize, repeat, and hang their hat on—which state that if a claim is not brought within two years of the discovery date "all but the most recent two years before the filing of the complaint will be time-barred," ECF No. 29 at 20-21 (quoting G.L., 802 F.3d at 620); see also ECF No. 39 at 4-5 (quoting G.L., 802 F.3d at 620)—are not to the contrary. Taken in the context of the opinion as a whole, it is clear that the Third Circuit was employing a shorthand that, expanded into more precise (and syntactically correct) language would read "all but [claims that accrued in]

the most recent two years before the filing of the complaint will be time-barred,"¹⁹ G.L., 802 F.3d at 620, or, put another way, claims that were or reasonably should have been discovered more than two years before the filing of the due process complaint are not actionable. Here, Plaintiffs do not challenge the hearing officer's decision that their claim as to the deficiencies of the 2017 IEP accrued on November 28, 2017, when it was offered. See ECF No. 29 at 21-22 (asserting that Plaintiffs "no longer contest" the hearing officer's decision that the date that Plaintiffs "knew or should have known that DCPS was denying [Edward] a FAPE was the date of development of each IEP itself"). And the same claim that Plaintiffs raised before the hearing officer they now press here: that DCPS "fail[ed] to offer the Student an appropriate IEP in ... November, 2017." ECF No. 15-1 at 7, 23 (emphasis added) (hearing officer's decision); see also ECF No. 18-1 at 35 (same, in original Prehearing Conference Order); ECF No. 19-3 at 3 (same, in Revised Prehearing Conference Order). It follows, then, that the claim is barred.²⁰

19 A close look at the actual language the Third Circuit uses establishes that it was using shorthand. As written, the phrase states that "all but the most recent two years ... will be time-barred." G.L., 802 F.3d at 620. But "years" are not "time-barred"; rather, accrued claims are.

20 Plaintiffs point to an additional Third Circuit case to support their argument, see ECF No. 29 at 22-23, but that case is easily distinguishable. In B.B. ex rel. Catherine B. v. Delaware College Preparatory Academy, plaintiffs filed the operative due process complaint on April 1, 2016, claiming that the student was denied a FAPE from September 2013 to September 2014. 803 F. App'x 593, 594-95 (3d Cir. 2020). They appealed the dismissal of their claim by the agency and, thereafter, by the district court, seeking to reinstate only claims related to discrete incidents that occurred between April 1, 2014 (two years prior to the filing of the due process complaint) and September 2014. Id. at 595. The Third Circuit reversed, finding that the specific violations alleged to have occurred after April 1, 2014 "could not have been discovered in February 2014 because they had not yet occurred." Id. at 596. That is, in B.B., the plaintiffs argued, and the court found, that the specific claims at issue did not accrue more than two years prior to the filing of the due process complaint. The most obvious distinction, which is alone fatal to Plaintiffs' argument here, is that they have expressly disclaimed any challenge to the hearing officer's determination regarding the accrual dates of their claims. See ECF No. 29-1 at 21-22. That is, unlike in B.B., they have waived any argument that the claim at issue is timely because the hearing officer got the "knew or should have known" date wrong; thus, in this case, there will be no finding that the claim stemming from the 2017 IEP actually accrued within two years of the date the due process complaint was filed.
Additionally, the claims at issue in B.B. are significantly different from those raised here. In that case, the Third Circuit relied on the fact that the due process complaint alleged discrete IDEA violations that occurred after April 1, 2014. B.B., 803 F. App'x at 597. Here, on the other hand, the due process complaint did not identify discrete events or incidents occurring within the relevant time period—August 20, 2018, until November 27, 2018—that allegedly denied Edward a FAPE. Instead, it claimed that Edward's IEP team developed an inadequate IEP on November 28, 2017. ECF No. 18-1 at 3-4. The hearing officer therefore framed the relevant issue in his pre-hearing order to encompass the claim actually raised: "Did Respondent fail to offer the Student an appropriate Individualized Education Program ('IEP') in or about ... November, 2017." ECF No. 19-3 at 3. Thus, this case is substantively different from B.B.

Plaintiffs' argument appears to assume that a claim for failure to revise an IEP is included within its claim that the 2017 IEP was inadequate. See ECF No. 21-4 at 7 (stating, at the due process hearing, "I understand that the IEP itself is outside of the time period, but that's the program that was in place for the start of the '18-'19 school year. The IEP team has an ongoing duty to revise that IEP if it's not

appropriate."). However, it is settled law in this Circuit that, where a plaintiff challenges an IEP as inadequate at its inception (as do Plaintiffs here), a court must analyze that question as of the time that the IEP was offered to the student, "rather than with the benefit of hindsight." Z.B. v. District of Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018); see also, e.g. B.B. v. District of Columbia, No. 20-cv-2467, 2022 WL 834146, at *6 (D.D.C. Mar. 21, 2022) (same, quoting Z.B.); Moradnejad v. District of Columbia, 177 F. Supp. 3d 260, 275 (D.D.C. 2016) ("'[B]ecause the question ... is not whether the IEP will guarantee some educational benefit, but whether it is reasonably calculated to do so, ... the measure and adequacy of an IEP can only be determined as of the time it is offered to the student.... Neither the statute nor reason countenance 'Monday Morning Quarterbacking' in evaluating the appropriateness of a child's placement,'" (alterations in original) (quoting S.S. ex rel. Shank v. Howard Rd. Academy, 585 F. Supp. 2d 56, 66 (D.D.C. 2008))). Although events post-dating the creation of the IEP may be relevant to the extent that "it sheds light 'on whether the IEP was objectively reasonable at the time it was promulgated,'" Z.B., 888 F. 3d at 524 (quoting Z.B. v. District of Columbia, 202 F. Supp. 3d 64, 76 n.23 (D.D.C. 2016)), the focus remains on the sufficiency of the IEP at the time it is offered. That is, if the IEP at issue was inadequate when offered and that inadequacy caused the student educational harm, the student may be entitled to a remedy; if the IEP was adequate at the time it was offered, that is the end of the inquiry. Thus, the triggering incident here is the creation of the IEP, not any failure to revise the IEP at the beginning of the 2018-2019 school year.

Notably, Plaintiffs do not argue that a "continuing violation" theory would save the claim as to the 2017 IEP; indeed, they disavow such a theory. See ECF No. 29-1 at 22-23 (asserting that Plaintiffs do not "seek to sweep expired claims into a single continuing violation" (quoting B.B., 803 F. App'x at 597)). In any case, such a theory, even if cognizable in the context of an IDEA claim, see, e.g., Hart v. District of Columbia, 323 F. Supp. 3d 1, 5-6 (D.D.C. 2018) (entertaining the notion that a plaintiff could bring a claim for a continuing violation under the IDEA but ultimately not deciding the question because the plaintiff had not established any violation at all), would not succeed here. The theory of a continuing violation is generally utilized where there are "repeated acts that would not themselves rise to the level of a legally-cognizable" violation of the law. A.U. v. District of Columbia, No, 19-cv-3512, 2020 WL 4754619, at *13 (D.D.C. July 13, 2020), report and recommendation adopted, 2020 WL 4750249 (D.D.C. Aug. 17, 2020). However, Plaintiffs here raise a claim based on a discrete act that the hearing officer has found—and Plaintiffs concede—accrued on November 28, 2017: the alleged failure to offer Edward an adequate IEP. Therefore, allegations of a continuing violation would be inappropriate here. See id. (noting that claims that have a specific accrual date cannot take advantage of the continuing violation theory).²¹ For these reasons, the hearing officer did not err in barring claims based on the 2017 IEP.²²

21 The undersigned notes that a number of courts have ruled that the continuing violation doctrine does not apply to IDEA claims. See, e.g., G.L., 802 F.3d at 611 ("[I]n D.K. [v. Abington Sch. Dist., 696 F.3d 233, 248 (3d Cir. 2012)], ... we reaffirmed our rejection of the 'continuing violation' doctrine [in IDEA cases]."); Washington ex rel. J.W. v. Katy Indep. Sch. Dist., 447 F. Supp. 3d 583, 592 (S.D. Tex. 2020) ("Because the IDEA and the regulations that implement it establish two specific exceptions, the IDEA is not subject to the continuing violations or equitable tolling doctrines."); Keitt v. New York City, 882 F. Supp. 2d 412, 440 (S.D.N.Y. 2011) ("[C]ourts in this Circuit have been reluctant to apply the continuing-violation doctrine to IDEA claims."); Bell v. Bd. of Educ. of the Albuquerque Pub. Sch., No. 06-cv-1137, 2008 WL 4104070, at *18 (D.N.M. Mar. 26, 2008) (refusing to apply the continuing violations doctrine to an IDEA case).

22 If the Court ultimately disagrees with the undersigned's conclusion on this point, the appropriate remedy would be to remand the case to the hearing officer to allow him to address the adequacy of that IEP in the first instance. See, e.g., Taylor v. District of Columbia, 770 F. Supp. 2d 105, 111 (D.D.C. 2011) (holding that "the hearing officer should be permitted, in the first instance, to conduct the 'fact-specific exercise of discretion' anticipated by the IDEA") (quoting Reid, 401 F.3d at 526); Henry v. District of Columbia, 750 F. Supp. 2d 94, 99 (D.D.C. 2010) ("While 'the Court has the authority to undertake its own review of the record ... and issue judgment in the case,' 'the district court may determine that the "appropriate" relief is a remand to the hearing officer for further proceedings.'" (alteration in original) (citations omitted) (first quoting Suggs v. District of Columbia, 679 F. Supp. 2d 43, 53 (D.D.C. 2010), then quoting Reid, 401 F.3d at 526)).

B. Expert Witness Issue

Plaintiffs next fault the hearing officer for "[finding] that expert testimony was 'required to carry [Plaintiffs'] burden of production at the hearing to make out a prima facie case." ECF No. 29-1 at 23. They argue that this "egregious" error constitutes "economic discrimination" that "requires reversal." Id. at 23-24; see also ECF No. 39 at 6, 9 (calling the alleged requirement of expert testimony "unprecedented," "egregiously erroneous," "economically discriminatory," and reversible error). However, the hearing officer required no such thing.

The hearing officer observed four times in his 40-page decision that Plaintiffs had not presented an expert witness to support their position on certain issues. For example, in discussing Plaintiffs' claim that the 2018 IEP prescribed an insufficient number of hours per month of speech-language therapy, he stated:

[Plaintiffs] did not present an expert witness in support of [their] position that [Edward] needed more speech-language pathology services than this IEP recommended. [They] instead relied on the language of the IEP, which did indicate that [Edward] presented with a decreased ability to comprehend verbally-presented information of length and complexity. However, this IEP language did not refer to the [Edward's] recent progress, and instead characterized [him] generally. This language, in fact, was in the prior year's IEP. Indeed, the November 27, 2018, IEP indicated that [Edward] had shown improvement in comprehension and expression of complex ideas, and required fewer cues for understanding nonliteral language and idiomatic expressions.

ECF No. 15-1 at 25-26. The hearing officer then noted other documents in the record supported the decision to decrease Edward's speech-therapy hours. Id. at 26. He pointed out that "[t]he only witness to testify with expertise on this issue" was Ms. Gibson, Edward's speech-language pathologist at Hardy Middle School, "who suggested that [Edward] did not need a mandate of four hours per month of speech-language pathology, noting that it was difficult for [him] to remain attentive during the sessions." Id. He also noted that other witnesses from that school had testified that the IEP provided adequate services. Id. And he credited "evidence in the record indicat[ing] that the entire CES program at DCPS is based on addressing

a student's communication needs through the delivery of ABA-based instruction." Id. Consequently, he found that Plaintiffs did not satisfy their burden of presenting a prima facie case on the issue and that, even if they had, DCPS had sufficiently rebutted their showing and established that the speech-language therapy included in the 2018 IEP was appropriate. Id.

It is difficult to see how that paragraph could be interpreted as imposing a requirement that Plaintiffs proffer expert testimony to meet their initial burden. As an initial observation, the hearing officer found that even if they had made out a prima facie case (without expert testimony), DCPS had rebutted it. Id. That is, his alternative holding assumed that Plaintiffs' expert-less case met its burden. More fundamentally, however, the hearing officer merely weighed the evidence, found both that it was insufficient to shoulder Plaintiffs' burden and that it supported DCPS' position that the speech-language prescription was appropriate, and indicated that expert testimony countering the position of DCPS (and of the DCPS witnesses that Plaintiffs called) could have been helpful to Plaintiffs' case. That is hardly an "unprecedented" observation, let alone "egregiously erroneous."

Similarly, the hearing officer noted that Plaintiffs had not proffered an expert witness to support their argument that the speech-language recommendations in the 2019 IEP were inadequate. Id. at 35. Again, the hearing officer discussed the evidence Plaintiffs offered on that issue—some declining scores on the 2019 speech-language assessment and the same language from the IEP noted above, which was repeated in the 2019 IEP; he also discussed the evidence that countered it—that the 2019 speech-language assessment as a whole indicated progress, that Ms. Gibson testified that the assessment underestimated Edward's skills, that the cited language from the IEP was not a report on Edward's then-current issues and needs, and that the Communication and Education Support program focused on communication skills. Id. at 34-35. As he did with the 2018 IEP, the hearing officer weighed the evidence with regard to the 2019 IEP and again found in favor of DCPS. Id. at 35.

There are two more references in the hearing officer's decision to Plaintiffs' lack of an expert. Regarding their claim that Edward should have been provided services related to self-adequacy, the hearing officer stated that Plaintiffs "did not call any witness, expert or otherwise, in support of th[e] contention that [Edward] needed self-advocacy help in November, 2018." Id. at 29 (emphasis added). That was part of a discussion of what he saw as Plaintiffs' utter lack of evidence on the point. Id. at 28-29. Finally, the hearing officer addressed Plaintiffs' claim that Edward's adaptive/daily living skills goal related to communicating his needs inside and outside the classroom and his emotional, social, and behavioral goal related to his picking behavior were difficult or impossible to measure. Id. at 39. The hearing officer asserted that "there is no testimony or evidence in the record to suggest that a special education teacher would have a problem measuring such goals, since [Plaintiffs] failed to call an expert witness to support [their] position on this issue." Id. at 39. That, once again, is part of a discussion of his finding that Plaintiffs' position lacked evidence, along with an acknowledgement that an expert witness could have been helpful on the point.

The undersigned cannot discern any error in the references noted here. They were each part of a discussion that weighed Plaintiffs' evidence (on four out of approximately fourteen issues addressed)

and found it wanting. Indeed, Plaintiffs' own arguments show that. They assert that the hearing officer "decide[d] this matter by simply quoting or summarizing [the] testimony [of the DCPS witnesses], then declaring that [Plaintiffs] did not rebut the testimony with their own expert testimony, disregarding completely cross-examination of DCPS experts, and finding in favor of DCPS in all respects."²³ ECF No. 29-1 at 24. That is, Plaintiffs' real complaint is with the hearing officer's weighing of the evidence—as they explain in more detail when they argue that, "[i]n myriad ways," the hearing officer "erred in finding that [Edward's] IEPs were appropriate and provided him with a FAPE," because, according to Plaintiffs, they were "entirely inappropriate." Id. at 26. Thus, the undersigned finds that the hearing officer did not require Plaintiffs to offer expert testimony in order to meet their burden and there is no need for reversal on this issue.

23 Plaintiffs' strategy of characterizing the testifying witnesses as "DCPS's" witnesses, whom Plaintiffs "cross-examin[ed]," see, e.g., ECF No. 39 at 7-8, is not well-taken. The bulk of the testifying witnesses who were employed by DCPS were called by Plaintiffs in their case-in-chief, That is, they were Plaintiffs' own witnesses whose testimony Plaintiffs elicited on direct, not cross-, examination.

C. Adequacy of the 2018 IEP and the 2019 IEP

Plaintiffs next turn to what should be the meat of the matter: whether the IEPs at issue were "reasonably calculated to enable [Edward] to make progress appropriate in light of [his] circumstances." Endrew F., 580 U.S. at 399, 137 S. Ct. at 999. "Should be the meat of the matter" because Plaintiffs' argument on this critical issue is disjointed, obfuscatory, overinclusive, and underdeveloped. For example, near the beginning of their discussion about the alleged inappropriateness of the IEPs, Plaintiffs lay out what appear to be their seven contentions about the IEPs' deficiencies: (1) insufficient speech-language therapy services; (2) failure to provide for appropriate research-based instruction; (3) insufficient occupational therapy services; (4) "repetitious, unmeasurable," and inappropriate goals; (5) lack of "appropriate present educational levels"; (6) failure to appropriately address needs in self-advocacy, social skills, pragmatic language, and functional academics; and (7) offering "undefined instruction which [was] not research-based." ECF No. 29-1 at 27. Their ensuing discussion, however, does not reflect those seven contentions. It raises some of those subjects and ignores others—for example, there is no analysis of how the decrease in occupational therapy services or the alleged lack of "present educational levels" denied Edward a FAPE.²⁴ "Functional academics" is mentioned twice without any discussion of the hearing officer's ruling on the issue or support for Plaintiffs' assertion that the IEPs' prescriptions as to functional academics were insufficient. ECF No. 29-1 at 31; ECF No. 39 at 10-11. More, their briefs broach several additional subjects, some similarly raised and dropped without analysis,²⁵ others never presented to the

24 Indeed, Plaintiffs' discussion of the IEPs establishes that they did include present educational levels. See, e.g., ECF No. 29-1 at 35 (noting the present educational levels in adaptive/living skills in the 2018 IEP), 40-41 (noting the present educational levels in reading, math, writing, activities of daily living, and communication in the 2019 IEP).

25 Here is a case in point. In the middle of their discussion about the 2018 IEP, Plaintiffs include a paragraph stating that Ms. Mahaney testified that Edward's class at Hardy Middle School comprised approximately eight to nine students, Ms. Mengistu testified that his class at Deal Middle School was about six students, and Mr. Walker testified that Edward's class at Hardy Middle School was smaller than his class at Deal Middle School. ECF No. 29-1 at 38. Leaving aside that their characterization of this testimony is not entirely accurate—Ms. Mahaney explicitly stated that she did not know the precise number of students in Edward's classroom at Hardy Middle School during the 2019-2020 school year (ECF No. 21-4 at 41)—Plaintiffs fail to explain the import of this alleged discrepancy, how it indicates that Edward was denied a FAPE, or how it shows that the hearing officer—who did not address the issue of class size because It was not before him—was wrong.

hearing officer. To avoid similar pitfalls, the undersigned here outlines the remainder of this analysis, which includes each of the arguments actually developed in the briefing before the Court:

(1) Unexhausted claims,

(2) Claims related to research-based instruction and the Communication and Education Support Program,

(3) Claims related to repeated goals and decreased services,

(4) Claims related to allegedly non-measurable goals, and

(5) Claims related to self-advocacy skills.

1. Unexhausted Claims

"The administrative process set forth by IDEA is not 'just an optional stop on the way to court.'" B.R. ex rel. Rempson v. District of Columbia, 802 F. Supp. 2d 153, 162 (D.D.C. 2011) (quoting Andersen ex rel. Andersen v. District of Columbia, 877 F.2d 1018, 1025 (D.C. Cir. 1989)). And so, "absent a showing that exhaustion would be futile or inadequate, a party must pursue all administrative avenues of redress under the [IDEA] before seeking judicial review under the Act." Cox v. Jenkins, 878 F.2d 414, 419 (D.C. Cir. 1989); see also Adams v. District of Columbia, 285 F. Supp. 3d 381, 394 (D.D.C. 2018) ("The law is clear that the scope of an IDEA hearing extends only to those issues raised in the Due Process Complaint, and that matters not presented to the Hearing Officer are not administratively exhausted."). Thus, "'an allegation not presented to the independent hearing officer at a due process hearing may not be raised for the first time in this Court.'" Holdzclaw v. District of Columbia, 524 F. Supp. 2d 43, 47 (D.D.C. 2007) (quoting Shabazz v. Williams, 2004 WL 3571946, at * 2 (D.D.C. March 1, 2004)). However, because "the IDEA's exhaustion requirement is not a jurisdictional bar," DCPS "[bears] the burden of asserting Plaintiff[s'] failure to exhaust as an affirmative defense." Brown v. District of Columbia, 324 F. Supp. 3d 154, 163-64 (D.D.C. 2018).

Here, DCPS correctly notes that several issues raised in Plaintiffs' briefing before this Court were not presented to the hearing officer. See ECF No. 35 at 36. Plaintiffs fault DCPS for failing to conduct "a functional behavioral assessment, any testing of emotional/behavioral/executive functioning, or any update of cognitive testing" in connection with the formulation of the 2019 IEP. ECF No. 29-1 at 38-39. They complain that Edward was not observed in his special education classroom as part of his triennial reassessment at the beginning of the 2019-2020 school year. Id. at 39-40. And they insist that the 2019 IEP was flawed because "no general education teacher attended the [IEP] meeting." Id. at 40. None of those issues were raised in Plaintiffs' due process complaint, none is included in the hearing officer's pre-hearing order, and none is addressed in the hearing officer's decision. They are therefore not exhausted. See, e.g., Adams v. District of Columbia, 285 F. Supp. 3d 381, 394 (D.D.C. 2018) (finding that an issue not explicitly presented as a dispute to be determined by hearing officer not exhausted even if it was discussed at the due

process hearing); District of Columbia v. Pearson, 923 F. Supp. 2d 82, 88 (D.D.C. 2013) (finding that issues not "raised explicitly in the [due process] complaint" are not properly before the hearing officer or the reviewing court); Shaw v. District of Columbia, 238 F. Supp. 2d 127, 140 n.10 (D.D.C. 2002) (deeming issue unexhausted where it "was not addressed in the hearing officer's findings of fact or conclusions of law. Therefore, it appears from the administrative record before this Court that no evidence was presented to the hearing officer regarding this contention ...."). More, Plaintiffs' opposition to DCPS' motion/reply in further support of its own motion fails to address the contention that those issues are not properly before the Court. Thus, Plaintiffs have conceded the argument. See, e.g., Cannon v. Wells Fargo Bank, N.A., 952 F. Supp. 2d 1, 11 (D.D.C. 2013) (holding that where a plaintiff failed to respond to the defendants' arguments, the court would treat the arguments as conceded). The undersigned therefore finds that Plaintiffs have conceded that those claims are not exhausted and addresses them no further.

2. Research-Based Instruction and the Communication and Education Support Program

The IDEA and its implementing regulations require an IEP to include "a statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child ...." 20 U.S.C. § 1414(d)(1)(A)(IV); 34 C.F.R. § 300.320(a)(4) (same). Plaintiffs argue that Edward's IEPs "fail[ed] to provide for actual research-based instruction in any area of need and ... omit[ted] appropriate minimal descriptions of the actual instruction that [he] would receive." ECF No. 29-1 at 29. The hearing officer rejected that claim finding, first, that Plaintiffs failed to explain how the lack of language in the IEP asserting that Edward would receive "research-based instruction" caused educational harm and, second, that Edward did, as a factual matter, receive research-based instruction. ECF No. 15-1 at 28, 36. There was no error in the hearing officer's ruling on that issue.

Plaintiffs appear to argue that an IEP must identify the specific research-based instruction that the student will receive. See ECF No. 29-1 at 29 ("For an IEP to be appropriate, it must at least supply at least a minimal description of the research-based instruction that the student will be receiving."). Courts have rejected the argument that the IDEA imposes such a requirement. See, e.g., C.S. v. Yorktown Cent. Sch. Dist., No. 16-cv-9950, 2018 WL 1627262, at *16 (S.D.N.Y. Mar. 30, 2018) ("[T]he IEP need not identify a specific 'educational methodology' to satisfy the IDEA." (quoting K.L. ex rel. M.L. v. N.Y.C. Dep't of Educ., No. 11-cv-3733, 2012 WL 4017822, at *12 (S.D.N.Y. Aug. 23, 2012))); W.D. v. Watchung Hills Reg'l High Sch. Bd. of Educ., No. 13-cv-3423, 2014 WL 793459, at *4 (D.N.J. Feb. 26, 2014) (finding that the defendant's failure to provide information about specific instructional methodologies to be utilized did not "amount[] to a violation of any [of the IDEA's] specific provisions or safe-guards"), aff'd, 602 F. App'x 563 (3d Cir. 2015); K.L., 2012 WL 4017822, at *12 (stating that "[i]t is well established that once an IEP satisfies the requirements of the [IDEA], questions of educational methodology may be left to the state to resolve," and holding that an IEP "that recommends special education and related services and specifies 'behavior intervention' strategies in the [behavioral intervention plan]" is sufficient), aff'd, 530 F. App'x 81, 86 (2d Cir. 2013) ("The parents further argue that the IEP was substantively deficient

because it did not mention evaluative methods or a particular teaching methodology. We disagree, for substantially the same reasons stated in the District Court's well-reasoned opinion."); S.M. v. Hawaii Dep't of Educ., 808 F. Supp. 2d 1269, 1279 (D. Hawaii 2011) (affirming the agency's decision that an IEP need not specify the methodologies to be used).

But even assuming that the IDEA requires more specificity than can be found in Edward's IEPs, Plaintiffs' argument would still fail. The court in Damarcus S. addressed a very similar argument (made by the same attorney who represents Plaintiffs here). There, the court first noted the well-established rule that, even if a plaintiff establishes a procedural violation of the IDEA, he or she must still show some ensuing harm, such as a deprivation of educational benefit. Damarcus S., 190 F. Supp. 3d at 51; see also, e.g., J.T. v. District of Columbia, 496 F. Supp. 3d 190, 203 (D.D.C. 2020) (noting that for a procedural violation of the IDEA to constitute the denial of a FAPE, "the plaintiff must establish by a preponderance of the evidence that the procedural violations resulted in a loss of educational opportunity or 'seriously deprive[d]' plaintiff of her IDEA participation rights" (alteration in original) (quoting Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006))). It then held that, the plaintiffs' "bald[] assert[ion] that the failure to specify the type of research-based instruction [the student] would receive" resulted in inappropriate instruction and caused the student's lack of progress was insufficient to show that the student suffered educational harm. Damarcus S., 190 F. Supp. 3d at 51-52. Because there was evidence that the student in fact received research-based instruction, the court upheld the hearing officer's determination that the lack of specificity resulted in the denial of a FAPE. Id. at 52; see also id. ("[E]ven if a school district does not explicitly state that the student will receive 'research-based instruction,' it does not follow that the student will not actually receive that type of instruction."). So it is here. The hearing officer explicitly found that Edward in fact received research-based instruction, including instruction at Deal Middle School through the Edmark program and through the ABA methodology at both Deal Middle School and Hardy Middle School. ECF No. 15-1 at 28, 36. Plaintiffs do not explain how any failure to "specify the type of research-based instruction [Edward] would receive," Damarcus S., 190 F. Supp. 3d at 51, caused him educational harm when he actually received research-based instruction.

Perhaps recognizing the vulnerability of their argument in light of the hearing officer's factual finding that Edward received research-based instruction, Plaintiffs attempt to undermine that finding. They point, for example, to equivocal testimony from Ms. Mengistu about her training in and knowledge of ABA.²⁶ ECF No. 29-1 at 30. However, the hearing officer heard all the testimony at the due process hearing, weighed it, and credited the evidence in the record that "the entire CES program at DCPS" utilized "ABA-based instruction." ECF No. 15-1 at 26; see also id. at 9 (crediting the testimony of Mr. Matthew, school psychologist at Hardy Middle School, regarding ABA instruction), 17 (same, as to Ms. Alphonse, LEA representative at Deal Middle School), 18

26 As noted above in Section I.D.3.b.iii, when asked if she had "received any specific ABA training" Ms. Mengistu first replied that she had not, but then added, "Other than DCPS trainings." ECF No. 21-4 at 130. She also testified that she did not remember the details of the training or when it occurred. Id.

(same, as to Mr. Walker, specialist with DCPS' autism team), 33 (same, as to Mr. Walker), 35, 40 (same, as to Mr. Walker and Ms. Mahaney, school social worker at Hardy Middle School, see supra note 17). Making credibility determinations and weighing the evidence are both within the hearing officer's province and are owed "'particular deference'" by the Court "'where there is no supplementation of the record.'" B.B., 2022 WL 834146, at *5 (quoting McAllister v. District of Columbia, 45 F. Supp. 3d 72, 76-77 (D.D.C. 2014)); see also id. at *10 ("A hearing officer in an IDEA administrative proceeding is the trier of fact and responsible for determining how much weight to give the evidence, including witnesses."); J.T., 496 F. Supp. 3d at 206-07 ("[T]he hearing officer is best positioned to make credibility judgments as to testifying witnesses and resolve factual disputes that amount to inconsistent testimony."), aff'd, No. 20-7105, 2022 WL 126707 (D.C. Cir. Jan. 11, 2022); Garris v. District of Columbia, 210 F. Supp. 3d 187, 190 (D.D.C. 2016) ("At bottom, ... these objections are about how the Hearing Officer weighed the evidence .... That Plaintiffs draw a different conclusion from that evidence does not make the Hearing Officer's alternative conclusion improper."); A.I. ex rel. Iapalucci v. District of Columbia, 402 F. Supp. 2d 152, 170 (D.D.C. 2005) (explaining the hearing officer "was the trier of fact at the due process hearing. As such, it was his responsibility to determine how much weight to give the evidence"). More, Plaintiffs do not explain how their contention that Ms. Mengistu's testimony that she did not remember the details of the training, such as when it was, establishes that "ABA was not delivered with any fidelity to the research" (ECF No. 29-1 at 30 (emphasis added)) is relevant here, where the question is whether the IEPs were appropriate when offered, rather than how they were later implemented. See, e.g., Z.B., 888 F.3d at 524. Thus, Plaintiffs have not provided sufficient reason to undermine the deference due the hearing officer's treatment of the evidence on this point.²⁷

27 Plaintiffs argue that testimony from Ms. Laguerre, Ms. Haile, and Ms. Katz establishes that Edward did not receive research-based instruction in speech-language therapy or occupational therapy. ECF No. 29-1 at 31. Their interpretation of the evidence is problematic. For example, Ms. Laguerre, occupational therapist at Hardy Middle School, testified that she did not use a particular research-based methodology known as "Zones of Regulation" with Edward, but she also testified that in her sessions she "tr[ied] to overlap what is going on in the classroom," ECF No. 21-4 at 81-82, which the hearing officer found was ABA. Ms. Haile, occupational therapist at Deal Middle School, testified that she used a handwriting program that Plaintiffs appear to admit was research-based. See ECF No. 21-5 at 17; ECF No. 29-1 at 31. Deal Middle School social worker Ms. Katz testified that Edward received research-based programming in social skills. ECF No. 21-6 at 28. In any case, a child is not denied a FAPE merely because some of his instruction does not use research-based practices. See, e.g., Albright ex rel. Doe v. Mountain Home Sch. Dist., 926 F.3d 942, 949 (8th Cir. 2019) ("Alongside the 'extensive' use of peer-reviewed practices, the use of [allegedly non-peer-reviewed techniques] ... did not deny Child Doe a FAPE."); Joshua A. ex rel. Jorge A. v. Rocklin Unified Sch. Dist., 319 F. App'x 692, 695 (9th Cir. 2009) (finding an "eclectic approach, while not itself peer-reviewed," satisfied the regulation requiring educational services to be based on peer-reviewed research to the extent practicable); see also Damarcus S., 190 F. Supp. 3d at 56 ("[T]he IDEA does not invariably require research-based instruction.").

In a somewhat related argument, Plaintiffs assert that the Communication and Education Support program was not adequately defined in the IEPs and that, as a factual matter, the Communication and Education Support program at Deal Middle School differed from the same program

at Hardy Middle School. ECF No. 29-1 at 32-33. As evidence, they assert that Deal Middle School had a Board-Certified Behavioral Analyst, while Hardy Middle School did not;²⁸ that Edward received both direct and consultative services from personnel whom the IEPs directed to provide consultative services alone; that the IEPs did not specify which services were "push-in" and which were "pull-out"; and that the Deal Middle School program was "geared toward those students on the higher end of the Autism spectrum, while the Hardy program was ... for those on the mid-to-lower end of that spectrum." Id. It is not altogether clear how this hodgepodge relates to the question before the hearing officer (and the Court), which is whether the 2018 IEP and 2019 IEP were reasonably calculated at the time they were offered to enable Edward to make progress appropriate in light of his circumstances. Endrew F., 580 U.S. at 399-401, 137 S. Ct. at 999. More, Plaintiffs have failed to respond to DCPS' arguments that the IEPs sufficiently defined Edward's special education program. See ECF No. 35 at 32. Thus, Plaintiffs have conceded the argument. See, e.g., Cannon, 952 F. Supp. 2d at 11.

28 Plaintiffs insist that Edward's mother's testimony that she did not speak to such an analyst at either school "alone made out a prima facie case, as required, shifting the burden to DCPS to demonstrate that it had a BCBA in place." ECF No. 29-1 at 32. But the prima facie case that Plaintiffs were required to make out was that, at the time they were offered, Edward's IEPs were not reasonably calculated to enable him to make educational progress in light of his particular circumstances, not that Hardy Middle School or Deal Middle School did or did not have a BCBA. See Endrew F., 580 U.S. at 399-401, 137 S. Ct. at 999. More, the hearing officer alternatively found that, assuming Plaintiffs met their initial burden, DCPS had rebutted it. ECF No. 15-1 at 28, 36.

Assuming, however, that Plaintiffs have sufficiently raised a potential procedural violation of the IDEA, they have again failed to connect it to any educational harm suffered by Edward. To be sure, they assert that Mr. Walker—the DCPS autism team specialist—testified that consistency was "important for" Edward. ECF No. 29-1 at 33. However, they do not link the alleged inconsistencies between Deal Middle School's Communication and Education Support program and Hardy Middle School's Communication and Education Support program to educational harm suffered by Edward. And, indeed, some of these so-called inconsistencies led to Edward receiving additional services and enjoying in a program more appropriate to his level of functioning. See ECF No. 21-6 at 24, 27 (Ms. Katz testifying that, in addition to the consultative services included in Edward's IEP at Hardy Middle School, she provided direct services); ECF No. 21-7 at 39-40 (Mr. Walker testifying that the program at Hardy Middle School was better suited to provide a higher level of support to Edward). More, the consistency that Mr. Walker spoke about as "important" to Edward had to do with the structure and techniques of the student's instruction, including repetition and reinforcement of skills. ECF No. 21-7 at 52. None of the facts Plaintiffs cite indicate that Edward's day-to-day instruction was unstructured or failed to reinforce skills; that is, Plaintiffs do not point to evidence that the "consistency" in instruction that Edward needed was lacking.²⁹ For these reasons, the undersigned recommends denying Plaintiffs' challenge to the hearing officer's decision on this ground.

29 In something of a stray remark in their opening brief, Plaintiffs assert that the lack of specificity in the IEPs at issue failed to provide "meaningful notice" to the parents of the proposed programs. ECF No. 29-1 at 30. A procedural violation of the IDEA can give rise to a substantive violation of the statute if it "[s]ignificantly impede[s] the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child." Hart v. District of Columbia, 323 F. Supp. 3d 1, 4 (D.D.C. 2018) (alteration in original) (quoting McLean v. District of Columbia, 264 F. Supp. 3d 180, 184 (D.D.C. 2017)). Plaintiffs have not shown by a preponderance of the evidence that any lack of specificity "seriously deprive[d]" Edward's parents of their "IDEA participation rights." J.T., 496 F. Supp. 3d at 203 (alteration in original) (quoting Lesesne, 447 F.3d at 834). First, courts have refused to find a serious deprivation where a parent participated in the relevant IEP meetings, as was the case here. See id. at 203-04 (collecting cases). Second, it is similarly undisputed that Edward's mother was highly involved in her son's education. Indeed, such involvement was a basis for the hearing officer's decision that Plaintiffs knew or should have known of the alleged inadequacy of the relevant IEPs at the time that they were promulgated. See ECF No. 19-4 at 48-62 (outlining Edward's mother's involvement in his schooling, including by speaking to his educational advocate "every day"); see also ECF No. 21-3 at 60-61, 75 (Edward's mother's testimony about her involvement in her son's education). Thus, as DCPS argues, the evidence does not support Plaintiffs' allegation that any deficiency in the IEPs seriously deprived Edward's parents of their IDEA participation rights. ECF No. 35 at 32. In any case, Plaintiffs fail to respond to DCPS' argument on this issue. They have therefore conceded it. See, e.g., Cannon, 952 F. Supp. 2d at 11; see also supra note.

3. Repeated Goals and Decreased Services

It is undisputed that many of the goals in the 2018 IEP and the 2019 IEP were repeated from the prior year's IEP. See supra Section 1.B-C. Plaintiffs argue that fact shows that Edward was either not progressing or regressing, thereby establishing that the IEPs were not "reasonably calculated to enable [him] to make progress appropriate in light of [his] circumstances." Endrew F., 580 U.S. at 399, 137 S. Ct. at 999. But the question is not so simple. "Courts have consistently underscored that the 'appropriateness of an IEP is not a question of whether it will guarantee educational benefits, but rather whether it is reasonably calculated to do so.'" Moradnejad, 177 F. Supp. 3d at 275 (quoting K.S. v. District of Columbia, 962 F. Supp. 2d 216, 221 (D.D.C. 2013)). Therefore, as noted above, "'the measure and adequacy of an IEP can only be determined as of the time it is offered to the student .... Neither the statute nor reason countenance "Monday Morning Quarterbacking" in evaluating the appropriateness of a child's placement.'" Id. (alterations in original) (quoting Shank, 585 F. Supp. 2d at 66). Evidence that post-dates the creation of an IEP is relevant to that inquiry only to the extent that it elucidates whether the IEP was objectively reasonable at the time it was offered. See, e.g., Z.B., 888 F.3d at 524.

As a number of courts have noted, "limited academic progress does not ipso facto signal a violation of the IDEA any more so than does the existence of substantially similar IEPs year over year." J.B. ex rel. Belt v. District of Columbia, 325 F. Supp. 3d 1, 9 (D.D.C. 2018); see also Teters v. Peoria Unified Sch. Syst., No. 19-cv-5038, 2020 WL 5810061, at *6 (D. Ariz. Sept. 30, 2020) ("The fact that an IEP has only minor changes does not mean it does not provide a FAPE."); Jackson v. District of Columbia, No. 19-cv-197, 2020 WL 3318034, at *14 (D.D.C. June 2, 2020) (similar), report and recommendation adopted, 2020 WL 3298538 (D.D.C. June 18, 2020); Red Clay Consol. Sch. Dist. v. T.S., 893 F. Supp. 2d 643, 648 (D. Del. 2012) ("Parents' argument that J.S.'s failure to progress compels a finding that the IEPs were inappropriate is misplaced."). Here, the hearing officer acknowledged that "'the wholesale repetition' of goals and objectives" can "indicate[] an ongoing

failure to respond to [a student's] difficulties." ECF No. 15-1 at 30 (second alteration in original) (quoting Damarcus S., 190 F. Supp. 3d at 52-53). But he ultimately found that the repetition of some goals in the relevant IEPs failed to establish that they were not reasonably calculated to enable Edward to make educational progress considering his unique circumstances. Id. at 31, 39. Specifically, he pointed to unrebutted testimony from Edward's special education teachers that certain goals were repeated because, although he had failed to master them during the prior school year, he was making progress on them, and unrebutted testimony from Mr. Walker (specialist on DCPS' autism team) that Edward "has severe memory issues and forgets lessons previously learned, [and so] needs to be taught the same thing over and over to achieve mastery." Id. at 30-31, 38-39. That finding is well-supported in the record. See, e.g., ECF No. 21-7 at 41 (testimony of Mr. Walker); see also ECF No. 21-5 at 64-65, 81 (testimony of Mr. Matthew, Deal Middle School psychologist, that Edward may have reached his "ceiling" in certain subjects). It should therefore be accorded deference, see, e.g., Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003) ("[T]he sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers."), especially as Plaintiffs do not point to evidence that might undermine the hearing officer's finding. Instead, they focus on the fact of the repeated goals—a circumstance that the hearing officer explicitly addressed—and then combine it with complaints that an adaptive physical education evaluation requested at the November 27, 2018 IEP meeting was not completed and that Edward's June 2019 progress report "lack[ed] any specifics about [his] progress" and was not completed by his special education teacher, but rather by LEA representative Mr. Holcombe. See ECF No. 29-1 at 34-42. As Defendant points out, Plaintiffs fail to explain "how the lack of that evaluation equates to an inappropriate IEP"—especially as they have not identified an inappropriate motor skills/physical development goal—or how the lack of detail in the June 2019 progress report relates to the adequacy of the IEPs at issue. ECF No. 35 at 34; ECF No. 42 at 6. In short, Plaintiffs have not satisfied their burden of showing "that the hearing officer was wrong." Reid, 401 F.3d at 521.

Plaintiffs also argue that, considering Edward's lack of progress, "it [was] inappropriate for DCPS to decrease [his speech-language] services" from four hours per month to three hours per month in the 2018 IEP. ECF No. 29-1 at 36. The hearing officer rejected that argument, relying on, among other things, assertions in the 2018 IEP that Edward was showing improvement in a number of areas of concern, such as understanding figurative and non-literal language, and in the Prior Written Notice of the same date that he required less cueing, that it "did not seem beneficial for him[] to continue working on the same challenges," and that pulling him out of class for therapy was a detriment. ECF No. 15-1 at 26. The hearing officer also noted the testimony of Ms. Gibson, the Hardy Middle School speech-language therapist, that it was difficult for Edward to remain attentive during his sessions. Id. More, the hearing officer noted that Edward was also receiving services relevant to his communication needs in the Communication and Education Support classroom. Id. In response, Plaintiffs assert that DCPS' "explanation for the decrease [in speech-language services] was inconsistent," pointing to two statements in the November 27, 2018 Prior Written Notice. ECF No. 29-1 at 36. They assert that the

notation that it was not beneficial for Edward to "continue working on the same challenges" indicates a lack of progress and highlight a notation that there was some indication of "expressive and receptive regression and distractibility." Id. But the hearing officer had that document before him, weighed it, and found that it supported the decrease in speech-language therapy hours. See ECF No. 15-1 at 26 (citing the Prior Written Notice, and, specifically, the opinion included therein that it was not beneficial to continue to work on the same issues, as support for the conclusion that the speech-language hours in the 2018 IEP were sufficient). As noted, a court should defer to the hearing officer's determination of the weight to give the evidence. See, e.g., B.B., 2022 WL 834146, at *10 ("A hearing officer in an IDEA administrative proceeding is the trier of fact and responsible for determining how much weight to give the evidence[.]"); A.I., 402 F. Supp. 2d at 170 (the hearing officer "was the trier of fact at the due process hearing. As such, it was his responsibility to determine how much weight to give the evidence"). And, even "'where evidence of educational appropriateness is mixed,'" if "'a court bases its ruling on [the] same record [as was considered by] the hearing officer, the court should defer to the hearing officer.'" Moradnejad, 177 F. Supp. 3d at 278 (alterations in original) (quoting Schoenbach v. District of Columbia, 309 F. Supp. 2d 71, 82 (D.D.C. 2004)); see also Garris, 210 F. Supp. 3d at 190 ("At bottom, ... these objections are about how the Hearing Officer weighed the evidence .... That Plaintiffs draw a different conclusion from that evidence does not make the Hearing Officer's alternative conclusion improper.").

Plaintiffs make a similar charge as to the 2019 IEP, where the speech-language therapy hours were decreased from three per month to two. ECF No. 29-1 at 41. The hearing officer again rejected the claim, asserting that the 2019 speech-language assessment, while indicating that Edward regressed in certain areas, showed that his language skills were increasing overall, a conclusion bolstered by the testimony of Hardy Middle School speech-language therapist Ms. Gibson, who asserted that Edward "could do more than what the test showed." ECF No. 15-1 at 34. Plaintiffs point only to Ms. Gibson's testimony that she mistakenly thought that the hours had not been decreased. ECF No. 29-1 at 41. However, as the hearing officer emphasized, Ms. Gibson stopped short of testifying that two hours per month of speech-language therapy was inadequate to serve Edward's needs. ECF No. 15-1 at 34. Again, Plaintiffs have not persuaded the undersigned either that deference to the hearing officer's determination is inappropriate or that the hearing officer's determination on this issue was wrong.³⁰ See Reid, 401 F.3d at 521; Moradnejad, 177 F. Supp. 3d at 278.

30 Again, Plaintiffs do not respond to DCPS' arguments that the speech-language therapy hours in both IEPs were sufficient. See ECF No. 35 at 34, 36. They have conceded those arguments. See, e.g., Cannon, 952 F. Supp. 2d at 11; see also supra note.

4. Non-Measurable Goals

Plaintiffs argue that three goals—one in the 2018 IEP and two in the 2019 IEP—were improper because they are not measurable. They object to the 2018 IEP's goal in social, emotional, and behavioral development that Edward "will increase his communication skills, including properly orienting his body towards the speaker and engaging in eye contact with peers and adults, in 4 out of 5 observable opportunities." They also fault the 2019 IEP's social, emotional, and behavioral goal that he would "reduce picking behavior by identifying

alternatives and using alternatives in [five out of seven] opportunities while bored" and that same IEP's adaptive/daily living skills goal that he would "communicate his needs and interest inside the classroom and outside the classroom." See ECF No. 29-1 at 35, 41-42; ECF No. 89 at 14-15; see also ECF No. 16-4 at 68; ECF No. 17-2 at 29, 34.

As to the body orientation/eye contact goal, Plaintiffs assert that merely "stating that Edward is going to 'increase' a skill in four out of five opportunities is not measurable; it is unclear what Edward would need to do to demonstrate mastery of this goal. If he made any progress, he would have 'increased' his skill[.]" ECF No. 29-1 at 35. Plaintiffs appear to ignore the fact that the goal is more than a general statement that Edward will "increase" his skill. Rather, it focuses on two specific behaviors—orienting his body to the speaker and making eye contact. It also includes a way to measure progress—he will engage in the conduct in four out of five observable opportunities. The hearing officer found that the goal was indeed measurable: "a special education teacher should be able to test [Edward's] ability to properly orient his[] body to the speaker and engage in eye contact during conversation in five observable opportunities." ECF No. 15-1 at 32. Courts have found that "the numerical nature" of a goal (or even of short-term objectives in service of a goal)—for example, requiring that a requirement be satisfied in a sufficient percentage of attempts—satisfies the requirement of an IEP to provide measurable goals. D.A.B. v. New York City Dep't of Educ., 973 F. Supp. 2d 344, 360-61 (S.D.N.Y. 2013); see also O.O. ex rel. Pabo v. District of Columbia, 573 F. Supp. 2d 41, 50-51 (D.D.C. 2008) (finding that an IEP had measurable goals where it required that "80% of the enumerated objectives should be mastered"). The 2018 IEP also states that the evaluation procedure would be teacher observation. ECF No. 16-4 at 68. That has been held to be a sufficient evaluation procedure. See M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 249 (2d Cir. 2012).

The same is true of the social, emotional, and behavioral goal in the 2019 IEP, that Edward would "reduce picking behavior by identifying alternatives and using alternatives in [five out of seven] opportunities while bored," also evaluated by teacher observation. ECF No. 17-2 at 34. Plaintiffs point out that Hardy Middle School occupational therapist Ms. Laguerre testified that Edward would continue picking behavior while his teacher was not looking, "render[ing] the goal virtually impossible to accurately measure." ECF No. 29-1 at 42; see also ECF No. 21-4 at 83: However, "[e]ven if a goal ... cannot be measured with mathematical precision, the IDEA does not require perfection." Colonial Sch. Dist. v. G.K. by & through A.K., 763 F. App'x 192, 197 (3d Cir. 2019). The adaptive/daily living goal is, admittedly, vaguer, requiring Edward to communicate his needs and interests inside and outside the classroom, again based on observation. ECF No. 17-2 at 29. But courts have recognized that "goals for social skills ... are inherently more difficult to quantify" than for academic skills, so that some leeway should be granted when assessing their adequacy. G.K., 763 F. App'x at 197. Here, the hearing officer found that there was a lack of evidence in the record that "a trained special education teacher or service provider would have difficulty managing" such a goal. ECF No. 15-1 at 32. Again, courts should defer to a hearing officer's weighing of the evidence and "[t]he sufficiency of goals and strategies in an IEP is quintessentially the type of issue on which deference to the expertise of

administrative officers is appropriate." J.L. v. City Sch. Dist. of City of New York, No. 12-cv-1516, 2013 WL 625064, at *13 (S.D.N.Y. Feb. 20, 2013).

However, assuming that any or all of those goals were insufficient under the IDEA, Plaintiffs still would not prevail on this issue. It is a procedural violation for an IEP to lack measurable goals. See, e.g., G.K., 763 F. App'x at 197; Robert J. v. Keller Indep. Sch. Dist., 328 F.3d 804, 811-12 (5th Cir. 2003). Plaintiffs have not established by a preponderance of the evidence that the lack of a measurable goal in one area of concern in the 2018 IEP or in two areas of concern in the 2019 IEP "resulted in a loss of educational opportunity [for Edward] or 'seriously deprive[d]' [his parents] of [their] IDEA participation rights." J.T., 496 F. Supp. 3d at 203 (second alteration in original) (quoting Lesesne, 447 F.3d at 834); see B.K. v. N.Y.C. Dep't of Educ., 12 F. Supp. 3d 343, 362 n.11 (E.D.N.Y. 2014) (recognizing the importance of complying with the procedural requirements of the IDEA, but stating that "to invalidate an otherwise appropriate IEP" because two goals lacked evaluative criteria "would elevate form over substance to an inappropriate degree"); J.L., 2013 WL 625064, at *13 (finding that the rights of neither the student nor the student's parents were "prejudiced" where "not every goal was accompanied by specifics about how progress would be measured"). Indeed, they do not seriously attempt to do so, instead indicating that they disagree that such errors are procedural. See ECF No. ECF No. 29-1 at 46 (arguing that "[t]he Hearing Officer ... erred in excusing deficiencies in the IEP as ... 'procedural'"); see also ECF No. ECF No. 39 at 14-15 (stating, in Plaintiffs' reply in further support of their motion and opposition to Defendant's motion, merely that "[t]he adaptive/daily living goal ('will communicate his needs and interest inside the classroom and outside of the classroom') was not measurable in violation of IDEA"). While they do assert that his scores on the social-emotional severity index rose from 2016 to 2018, indicating a decline in social skills, ECF No. 29-1 at 44-45, it is their burden to show that a procedural violation caused harm. Plaintiffs make no attempt to show how that decline was caused by a lack of measurable goals in the social, emotional, and behavioral goal in the November 27, 2018—nor could they, as the relevant questionnaire was administered prior to the development of that IEP, see ECF No. 16-4 at 67 (noting that the questionnaire was administered in October 2018).

Plaintiffs' motion should be denied on this ground.

5. Self-Advocacy Skills

Finally, Plaintiffs contend that Edward was denied a FAPE because the IEPs at issue did not contain self-advocacy goals.³¹ ECF No. 29-1 at 37. They assert that the inappropriate touching incident reported in January 2019, which precipitated his transfer to Hardy Middle School, establishes why self-advocacy skills were "critically important" for Edward, Id. They also note that, after Edward transferred to Hardy Middle School, "he came home one day with bruises all over his legs, highlighting

31 The undersigned notes that the 2019 IEP contained a goal that could be considered one of self-advocacy. His adaptive/daily living goal was to "independently communicate his needs and interest" both inside 'and outside the classroom. ECF No. 17-2 at 29, However, neither the parties nor the hearing officer addresses that goal as a potential self-advocacy goal, so the undersigned will assume that there were no self-advocacy goals in the 2019 IEP.

the importance of having a consistent team focus on ... self-advocacy." Id. at 38.

The hearing officer's analysis of the adequacy of the 2018 IEP focused on the incident with the bruises. He found that there was no evidence (1) that they "were a function of [Edward's] lack of self-advocacy skills," (2) that [Edward] needed self-advocacy help in November 2018, or (3) that Plaintiffs raised the issue of self-advocacy at the 2018 IEP meeting. ECF No. 15-1 at 28-29. Regarding the 2019 IEP, the hearing officer found (1) that there was no evidence that self-advocacy would have addressed the inappropriate touching incident reported in January 2019, (2) that there was no credible evidence that Plaintiffs sought such services at the 2019 IEP meeting, (3) that Plaintiffs did not call a witness or "clearly explain why [Edward] needed services in this area," and (4) that testimony showed that Plaintiffs declined direct behavioral support services, which could have addressed Edward's needs in this area. ECF No. 15-1 at 37.

As has been repeated many times in this Report and Recommendation, the hearing officer (and the Court) must evaluate the adequacy of an IEP as of the time it was offered. See, e.g., Z.B., 888 F.3d at 524. The only evidence Plaintiffs proffer to suggest that Edward's IEP team should have known that he required services or goals in self advocacy are two incidents about which the IEP team could not have known at the time the 2018 IEP was offered, because they had not yet occurred. Plaintiffs cite no evidence and make no representation that any member of the IEP team—including either of Edward's parents—was aware of the inappropriate touching incident before January 2019. As reflected in treatment notes from Edward's psychiatrist dated May 14, 2019, the bruising incident occurred even later, at the end of the 2018-2019 school year. See ECF No. 17-1 at 39. And, as the hearing officer found (and Plaintiffs do not contest), there is no evidence that Plaintiffs raised the issue of self-advocacy at the 2018 IEP meeting. Thus, no basis has been established to disturb the hearing officer's finding that the IEP team at that meeting had no reason to believe that Edward required services in self-advocacy.

Nor does Plaintiffs' showing undermine the hearing officer's similar finding as to the 2019 IEP. To be sure, by that time, the IEP team knew about the inappropriate touching incident and about the bruising. But, as the hearing officer found, record evidence did not sufficiently link either incident to deficiencies in self-advocacy. Ms. Laguerre—occupational therapist at Hardy Middle School—testified that "sometimes [Edward] doesn't advocate for himself' at recess—but there is no indication that at the time of the 2019 IEP meeting, she or any other member of the IEP Team believed that self-advocacy goals or services were indicated. The occupational therapy re-assessment she performed approximately one week prior to that meeting did not recommend such services. See ECF No. 17-1 at 73-74. The hearing officer found no "credible evidence" that Edward's mother sought self-advocacy services at the IEP meeting but did credit Ms. Mahaney's testimony that Edward's mother declined direct behavioral support services at that meeting. ECF No. 15-1 at 21; ECF No. 21-4 at 49; see also supra note 16. Again, Plaintiffs have not provided sufficient reason to question these factual findings, which support the hearing officer's ultimate conclusion that the lack of self-advocacy support in the 2019 IEP did not deny Edward a FAPE. The undersigned thus finds that Plaintiffs have not carried their "burden of persuading the court that the hearing officer was wrong," Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887), on this issue. CONCLUSION

For the foregoing reasons, the undersigned RECOMMENDS that Plaintiffs' motion for judgment on the administrative record (ECF No. 29) be DENIED and Defendant's motion for summary judgment (ECF No. 35) be GRANTED.

* * * * *

The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

Date: June 7, 2022