Opinion
Case No. 1:21-cv-2662 (TNM)
2023-09-12
Bowen UHLENKAMP and Sadaf Lakhani, parents of the minor child A.U., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Alana Michelle Hecht, D.C. Disability Law Group, P.C., Washington, DC, for Plaintiffs. Veronica A. Porter, Office of the Attorney General for D.C., Washington, DC, for Defendant.
Alana Michelle Hecht, D.C. Disability Law Group, P.C., Washington, DC, for Plaintiffs. Veronica A. Porter, Office of the Attorney General for D.C., Washington, DC, for Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION TREVOR N. MCFADDEN, United States District Judge
Before the Court is the Report and Recommendation of Magistrate Judge Robin M. Meriweather, which was filed on August 28, 2023. Under Federal Rule of Civil Procedure 72(b)(2), parties may lodge written objections to such a Report and Recommendation within 14 days of being served. That time expired on September 11, 2023, without any objections.
Having carefully reviewed the findings and conclusions contained in Magistrate Judge Meriweather's Report and Recommendation, the Court will adopt in full the Report and Recommendation as the findings and conclusions of this Court.
Upon consideration of the Report and Recommendation, the absence of objections, and the entire record, it is hereby
ORDERED that the Report and Recommendation is adopted by the Court; it is further
ORDERED that Plaintiffs' [49] Motion for Summary Judgment is DENIED in PART insofar as that motion seeks reversal of the Hearing Officer's determination on the child find claim and IEP implementation claim. And it is
ORDERED that Defendant's [50] Cross-Motion for Summary Judgment is and GRANTED in PART on those same points. And it is
ORDERED that Plaintiffs' [49] Motion for Summary Judgment is GRANTED in PART insofar as that motion seeks to remand the Hearing Officer's decisions on whether the April, May, and December IEPs violated A.U.'s right to a FAPE and whether Plaintiffs were entitled to tuition reimbursement. And it is
ORDERED that Defendant's [50] Cross-Motion for Summary Judgment is DENIED in PART insofar as it seeks to affirm those decisions. And it is
ORDERED that this case is REMANDED for further administrative proceedings on those issues.
SO ORDERED.
This is a final, appealable Order. REPORT AND RECOMMENDATION ROBIN M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE
This case arises from administrative proceedings that Plaintiffs Bowen Uhlenkamp and Sadaf Lakhani ("Plaintiffs" or "Parents" or "Mr. Uhlenkamp" or "Ms. Lakhani") brought against the District of Columbia ("the District"), under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., to challenge the District of Columbia Public Schools' ("DCPS") provision of a free and appropriate public education ("FAPE") for Plaintiffs' minor child A.U. ("A.U." or "the Student"). See generally Compl., ECF No. 1. Specifically, Plaintiffs challenge certain findings made in a July 19, 2021 Hearing Officer Determination ("HOD") issued by the District of Columbia's Office of the State Superintendent of Education and ask the Court to reverse the HOD and remand for further proceedings. District Judge Trevor N. McFadden referred the matter to the undersigned for a report and recommendation. See Oct. 18, 2021 Min. Order.
In the Parents' pending Motion for Summary Judgment, filed on behalf of their child A.U., they allege that the Impartial Hearing Officer ("Hearing Officer") erred in the following ways: (1) by inappropriately applying the burden on the Plaintiffs; (2) by failing to find that DCPS denied A.U. a FAPE by not concluding A.U. was eligible for special education services at least as far back as January 2019; (3) by failing to find that the (i) April 10, 2019, (ii) May 30, 2019, and (iii) December 17, 2019 individualized educational plans ("IEPs") were inappropriate; (4) by failing to find that the Parents were entitled to tuition reimbursement for the unilateral placement of A.U. in a private school; and (5) by failing to find that DCPS denied A.U. a FAPE by failing to implement the IEPs from May and December of 2019. See Pls.' Am. Mem. in Supp. of Mot. for Summ J., ECF No. 55-1 ("Pls.' Mem."); Pls.' Mot. Summ. J., ECF No. 49 ("Pls.' Mot."). The District has cross moved for summary judgment and contends that the HOD should be affirmed because the applicable law and the record developed during the administrative proceedings support the Hearing Officer's rulings. See Def.'s Opp'n to Pls.' Mot. for Summ. J. & Cross Mot. for Summ. J. ("Def.'s Mot."), ECF No. 50.
At the request of the undersigned, Plaintiffs filed an amended memorandum in support of their motion for summary judgment, which, unlike their original submission, included a statement of facts and margins compliant with Judge McFadden's standing order. See Jan. 23, 2023 Min. Order; see Pls.' Mem. in Supp. Mot. Summ. J., ECF No. 49-1. This recommendation therefore cites Plaintiffs' amended memorandum instead of the original submission.
Having considered the relevant filings, the administrative record, and the applicable law, and for the reasons set forth below, the undersigned recommends that the Court GRANT-IN-PART and DENY-IN-PART Plaintiffs' Motion for Summary Judgment, and GRANT-IN-PART and DENY-IN-PART Defendant's Cross-Motion for Summary Judgment.
The relevant briefs are: Pls.' Mot. for Summ. J., ECF No. 49 ("Pls.' Mot."); Pls.' Am. Mem. in Supp. of Mot. for Summ. J., ECF No. 55-1 ("Pls.' Mem."); Def.'s Opp'n to Pls.' Mot. for Summ. J. & Cross Mot. for Summ. J., ECF No. 50 ("Def.'s Mot."); Def.'s Mem. in Supp. of Def.'s Cross Mot. for Summ. J., ECF No. 51 ("Def.'s Mem."); Pls.' Reply to Def.'s Opp'n and Pls.' Opp'n to Def.'s Cross Mot. for Summ. J., ECF No. 52 ("Pls.' Reply") (duplicate filed as ECF No. 53); and Def.'s Reply to Pls.' Opp'n, ECF No. 54 ("Def.'s Reply"). Throughout this Report and Recommendation, page citations to documents in the record other than the AR refer to the document's original pagination, unless the page is designated with an asterisk (e.g., *1), in which case the reference is to the pagination assigned by PACER/ECF.
Citations to the administrative record, see Administrative Record ("AR"), ECF Nos. 10-39, refer to the running pagination at the lower center margin.
BACKGROUND
I. Statutory Framework
Congress enacted the IDEA to ensure that children with disabilities receive a free appropriate public education that emphasizes special education and related services tailored to each child's unique needs, and to ensure that the rights of such children and their parents are protected. See 20 U.S.C. § 1400(d)(1)(A); B.D. v. D.C., 817 F.3d 792, 794 (D.C. Cir. 2016). Under the IDEA, children with disabilities who reside in the school district are "identified, located, and evaluated." 20 U.S.C. § 1412(a)(3)(A). Once a child with disabilities is identified, the child's parents, teachers, school officials, and other professionals work together to develop an IEP to meet the child's needs. See id. §§ 1412(a)(4), 1414(d)(1)(B). A FAPE includes:
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 [a child's] individualized education program.Id. § 1401(9).
If a parent of a student disagrees with or is dissatisfied with the "identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," the IDEA authorizes the parent to file a complaint and request an "impartial due process hearing." Id. §§ 1415(b)(6), 1415(f). At that hearing, the parties present evidence and expert testimony about the child's educational and functional needs to an independent hearing officer. See id. §§ 1415(f), (h). The independent hearing officer then issues a HOD, in which the hearing officer determines whether DCPS denied the student a FAPE and, if so, orders an appropriate remedy. See id. § 1415(f)(3)(E); see also B.D., 817 F.3d at 798. Any party aggrieved by the findings and decisions made by the hearing officer may bring a civil action in state or federal court. See id. § 1415(i)(2).
II. Factual Background
The events most pertinent to this case occurred during the 2018-2019 and 2019-2020 school years. During the 2018-2019 school year, A.U. became eligible for special education services based on an IDEA classification of multiple disabilities ("MD"), specific learning disability ("SLD"), and other health impairment ("OHI"). See AR 176.
A. A.U.'s Earlier Years: 2017-2018 School Year
A.U. was enrolled in fourth grade during the 2017-2018 school year at Janney Elementary School ("Janney"), a public school in the District of Columbia. See AR 99. A.U.'s report card from this school year reflected that he was "proficient" or "advanced" in all classes but one for each of the four terms. See id. Despite this positive performance, A.U. received a response to intervention ("RTI") due to difficulties he faced in participation and focus. See AR 1876. At the request of A.U.'s parents, in March 2018, Dr. Danielle Short, a school psychologist, conducted a social-emotional/behavior functioning screening in which A.U.'s parents and teachers completed various assessments that addressed A.U.'s behavior (BASC-3; Conners-3; and BRIEF02). See AR 93, 2168. In a meeting between DCPS and the Plaintiffs shortly after the assessments concluded, DCPS informed Plaintiffs that they could get A.U. diagnosed by a private provider or receive an RTI. See AR 2163-66. The parties met again to discuss Dr. Short's findings in June 2018; Dr. Short found that A.U. "would benefit from guidance counseling support and/or cognitive behavioral therapy to address . . . areas of concern" such as A.U.'s "attention, anxiety, depression, social engagement, and executive functioning" as well as his difficulty "following multiple-step directions, initiating independent tasks, organizing his materials, and maintaining work stamina." AR 93. Dr. Wood, the support coordinator at Janney, suggested to the Parents that A.U. could receive outside therapy and undergo additional outside testing. See AR 2106-07, 2162.
B. A.U.'s April and May IEPs: 2018-2019 School Year
During the 2018-2019 school year, A.U. was enrolled in fifth grade at Janney. In a mid-term progress report from October 2018, teachers informed the Parents that A.U. was "presenting some academic difficulty" in reading. AR 103. Despite this, A.U.'s first term report card showed that he achieved "basic" marks in reading, he was "proficient" in all other subjects, and he needed "limited" or "no" prompting in work habits, personal skills, and social skills. AR 106. Consistent with his report card, a teacher commented that he was "reading on grade level." AR 104. However, in November 2018, teachers raised concerns regarding A.U.'s struggles focusing in class. See AR 299-300. In December 2018, A.U. presented additional struggles. A.U.'s teachers informed Plaintiffs that A.U. was performing below grade expectations in writing and reading. See AR 111-12. Indeed, A.U.'s second term report card revealed that he was "proficient" in all subjects except for reading and writing & language, where he received "basic" marks. AR 116. Unlike the previous report card, this time teachers noted that A.U. needed frequent prompting in following directions. See id. On December 14, 2018, DCPS alerted the Parents to concerns about the quality of A.U.'s focus and written classwork. See AR 301-02, 2171-72.
In response to A.U.'s teachers' concerns, the Plaintiffs had A.U. undergo an independent comprehensive psychological evaluation, conducted by Dr. Ann Schlegelmilch. See AR 129-155. The report was finalized in March 2019 and concluded that A.U. had General Anxiety Disorder and Other Specified Depressive Disorder, and a SLD with impairment in reading. See AR 151, 153. On April 10, 2019, after reviewing the referral for an initial evaluation of A.U., DCPS found A.U. eligible for special education services as a student with MD, SLD, and OHI. See AR 176.
A.U.'s first IEP, developed on April 10, 2019 ("April IEP"), included two goals in reading, as well as two goals in emotional, social, and behavioral development. See AR 200-03. This IEP specifically included forty-five minutes per week of special education in reading inside the general education setting, and sixty minutes per month of behavioral support services ("BSS") outside the general education setting. See AR 204.
On May 26, 2019, an occupational therapy ("OT") evaluation, paid for by and completed at the request of A.U.'s Parents, revealed that A.U. exhibited difficulties in visual-motor integration and visual-motor coordination. See AR 278. The evaluator, Dr. Kathy Pyne, recommended weekly OT therapy for eight weeks to strengthen various skills, such as visual-motor and postural endurance, visual-motor coordination, directionality, visualization skills, hand function, planning and sequencing, written communication strategies, and self-regulation. See AR 280.
Following an IEP team meeting, A.U.'s second IEP was developed on May 30, 2019 ("May IEP"). See AR 286. The May IEP modified the April IEP in two respects: first, it added two written expression goals and sixty minutes per week of special education services in written expression. See AR 289, 292. Second, it modified the time for BSS from sixty minutes per month outside the general education setting to thirty minutes per month outside the general education setting and thirty minutes per month inside the general education setting. See AR 292.
The May IEP contained forty-five minutes per week of specialized instruction in reading inside general education and kept the same two reading goals that existed in the April IEP. See AR 286-292.
A.U.'s third and fourth term report cards for the 2018-2019 school years showed a slight decline in academic performance, work habits, and personal and social skills as compared to his report card for the first two terms; he received a grade of "basic" or "proficient" for all classes. See AR 259, 379. The third term report card showed that A.U. received a "basic" grade in four classes: reading; writing & language; speaking & listening; and math. See AR 259. The fourth term report card revealed that A.U. required "frequent prompting" to follow directions, work well with others, return homework, make an effort, follow classroom rules, and practice self-control. See AR 379.
C. A.U.'s December IEP: 2019-2020 School Year
For the 2019-2020 school year, A.U. transitioned to middle school. He was enrolled in sixth grade at Alice Deal Middle School ("Deal"), a D.C. public school. See AR 482. A.U. received A's and B's in his first term report card. See id. Following the switch to Deal, A.U. began exhibiting a stutter and felt overwhelmed by the larger size of the school. See AR 1982, 2208.
On December 17, 2019, A.U.'s IEP was again revised ("December IEP"). This IEP included more goals and more hours of instruction than the previous two IEPs. See AR 499. It had three goals in reading, three goals in academic-written expression, one goal in adaptive/daily living skills, and three goals in emotional, social, and behavioral development. See AR 502-08. In addition, the December IEP implemented two hours per week of special education inside the general education setting for reading and written expression; four hours per week of special education services outside the general education setting in reading; two hours per month of BSS outside the general education setting; and thirty minutes per month of BSS inside the general education setting. See AR 509. Leading up to the implementation of the December IEP, the Plaintiffs and their privately hired consultant, Amy Mounce ("Ms. Mounce"), expressed concerns about the goals and supports included in the revised IEP; the parents and Ms. Mounce outlined their grievances in an email to DCPS on October 27, 2019. See AR 1962-63. Ms. Mounce marked up a draft of the IEP, which was discussed at the December IEP meeting. See AR 399-402. She ultimately contributed to the development of the December IEP. See AR 325, 548-662, 674-78, 2035. Shortly after this meeting, in early 2020, Plaintiffs informed the school that they were looking into other schools for A.U. See AR 2147. In April 2020, Deal transitioned to distance learning due to the COVID-19 pandemic. See 2208-09.
On August 13, 2020, Plaintiffs' counsel informed DCPS that the Parents were unilaterally placing A.U. at the Siena School ("Siena"), a private school in Maryland. See AR 1021-22. DCPS responded to Plaintiffs on August 19, 2020, sharing that their position was that they already provided a FAPE to A.U. at Deal and they would not agree to front the cost of private placement. See AR 825.
A.U. began the entirely virtual 2020-2021 school year at Siena for seventh grade. See AR 1818, 2062. Siena is a special education school where all students have a specific learning disability. See AR 7. A.U. continued to struggle academically and socially/emotionally. See AR 1825-33. During the first term, A.U. received C grades in English, Math, and Science; he received A's, a B, and a Pass in his other classes. See AR 1818. In the second term, A.U. received one D, three C's, one B, one A, and one Pass. See AR 1826.
III. Procedural Background
A. Administrative Proceedings
Plaintiffs filed an administrative due process complaint on January 27, 2021. See AR 1163-1205. In the complaint, Plaintiffs alleged that DCPS denied A.U. a FAPE by: (1) failing to find A.U. eligible for special education services prior to January 2019 ("child find" obligations); (2-4) failing to provide an appropriate IEP on April 10, 2019; May 30, 2019; and December 17, 2019 because the IEPs: (a) provided insufficient specialized instruction hours, (b) did not contain appropriate goals and related baselines based on the nature and extent of the disability known at the time and the present levels of performance, (c) did not include occupational therapy, (d) failed to provide an appropriate educational placement, (e) failed to provide appropriate modifications, accommodations, and interventions including an appropriate reading program to address his needs; (5) failing to offer an appropriate IEP and placement prior to the 2020-2021 school year, justifying the unilateral placement of A.U. at Siena; and (6) failing to implement A.U.'s May and December IEPs. See AR 1203-04. For relief, the Parents sought: (1) a favorable decision for Plaintiffs on all issues; (2) reimbursement for the costs of services such as OT, tutoring, mental health therapy, and/or assessments paid out of pocket by Plaintiffs; (3) an order requiring that DCPS fund Plaintiffs' compensatory education plan or fashion an appropriate compensatory education plan; (4) an order requiring that DCPS reimburse Plaintiffs for tuition and related services provided to A.U. at Siena during the 2020-2021 school year; (5) an order requiring that DCPS fund A.U.'s tuition at Siena through the 2020-2021 school year so that A.U. may remain there and/or until a FAPE is offered; and (6) all other relief deemed appropriate. See AR 1202-03. The District filed its Response to the Complaint on February 9, 2021. See AR 5.
The parties appeared before Hearing Officer Terry Michael Banks ("Hearing Officer Banks") on February 12, 2021 for a resolution meeting; a settlement was not reached. See id. The parties again appeared before Hearing Officer Banks on March 24, 2021 for a pre-hearing conference. See id. The parties, each represented by Counsel, convened for Due Process Hearings on May 18, May 19, May 20, and June 9, 2021. See AR 1913, 2090, 2247, 2410. At those hearings, the Hearing Officer heard testimony and adjudicated the issues listed in Plaintiffs' complaint. See AR 1203-04.
The Hearing Officer issued his decision, or HOD, on July 19, 2021. Hearing Officer Banks first presented his findings of fact. See AR 7-27. When considering whether DCPS denied A.U. a FAPE by failing its "child find" obligations—in other words, in failing to find that A.U. was eligible for special education services as of January 2019—the Hearing Officer observed that until the first term of 2018-2019, A.U. performed above average or average in his classes, continued to read at grade level, and his teachers took unilateral action to address A.U.'s off-task behavior. See AR 30. Thus the Hearing Officer concluded that "DCPS was [not] derelict in failing to suspect a disability due to [A.U.'s] fall-off of performance in Reading and Writing & Language . . . [I]t was not unreasonable for the staff to believe that the diminished performance in the fall of 2018 in ELA alone was due to a lack of focus that could be addressed with classroom accommodations." Id.
Turning next to the issue of whether DCPS denied A.U. a FAPE by failing to provide appropriate IEPs in April, May, and December of 2019, Hearing Officer Banks concluded that all three IEPs were appropriate. See AR 31-38. The Hearing Officer reasoned that the April IEP "was reasonably calculated to help [A.U.] achieve passing marks and advance from grade to grade" in light of A.U.'s "grade level performance in core subjects" and test results. AR 34. Hearing Officer Banks found that the May IEP was appropriate because there "was no meaningful change in [A.U.'s] circumstances between April 10th and May 30th," and the OT evaluation was not provided to DCPS until June 5th. AR 34-35. Finally, Hearing Officer Banks considered teacher remarks regarding A.U.'s reading abilities, A.U.'s grades, achievement testing, among other evidence, to conclude that OT services were not necessary "to access the general education services," and that the December IEP was appropriate. See AR 35-38.
Hearing Officer Banks quickly rejected Plaintiffs' claim seeking tuition reimbursement for their placement of A.U. at Siena school for the 2020-2021 school year. He reasoned that the December IEP was "reasonably calculated to enable [A.U.] to make academic progress" so A.U. had an "appropriate IEP to begin the 2020-2021 school years, with an annual IEP not due until December 17, 2020." AR 38. Finally, Hearing Officer Banks found that the May and December IEPs were properly implemented, because Plaintiffs did not provide persuasive evidence of DCPS failing to implement the IEPs, and in any event, the executive functioning deficit allegations were "exaggerated." AR 38-39. The Hearing Officer ultimately dismissed the Parents' complaint, awarding none of the relief requested. See AR 39.
B. The Instant Action
On October 12, 2021, Plaintiffs filed this action challenging the HOD. See generally Compl. The District filed an Answer to the Complaint on December 15, 2021. See generally Answer, ECF No. 8; see also Nov. 4, 2021 Min. Order (granting motion for extension to file Answer). On April 7, 2022, the District filed the Administrative Record. See Administrative Record, ECF Nos. 10-39. Shortly thereafter, the parties cross-moved for summary judgment. See Pls.' Mot.; Def.'s Mot. Upon request of the undersigned, the Parents filed an amended memorandum in support of their motion, to which the District did not seek leave to respond. See Jan. 23, 2023 Min. Order; Pls.' Mem.; Def.'s Notice, ECF No. 56. The parties' motions are now ripe for this Court's review.
LEGAL STANDARD
Although styled as motions for summary judgment, the cross-motions before the Court more accurately seek review of Hearing Officer Banks' administrative due process decision. See S.B. v. D.C., 783 F. Supp. 2d 44, 50 (D.D.C. 2011). When neither party puts forth additional evidence, a motion for summary judgment "operates as a motion for judgment based on the evidence comprising the record." Jenkins v. D.C., No. 02-cv-1055, 2005 WL 3371048, at *1 (D.D.C. 2005). The Court must afford the administrative decision "due weight" and consider its factual findings "prima facie correct." Id.; Roark ex rel. Roark v. D.C., 460 F. Supp. 2d 32, 38 (D.D.C. 2006). This Court's review is nevertheless "less deferential than is conventional in administrative proceedings." B.D., 817 F.3d at 797 (quoting Reid ex rel. Reid v. D.C., 401 F.3d 516, 521 (D.C. Cir. 2005)). A hearing decision that lacks "reasoned and specific findings deserves little deference." Kerkam v. Superintendent of D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991). In that case, a court may review the plaintiff's IDEA claims de novo. Hill v. D.C., No. 14-CV-1893, 2016 WL 4506972, at *15 (D.D.C. Aug. 26, 2016) (citations omitted).
Portions of the administrative decision focused on statutory interpretation are "pure question[s] of law that courts review de novo." Reid, 401 F.3d at 521. Compensatory education awards are similarly afforded "little deference." Id. at 525. The party challenging the administrative determination has "the burden of persuading the court that the hearing officer was wrong." S.B., 783 F. Supp. 2d at 50 (quotation omitted); see also B.D., 817 F.3d at 797 (same). A "district court may determine that the 'appropriate' relief is a remand to the hearing officer for further proceedings." Malloy v. D.C., No. 20-CV-03219, 2022 WL 971208, at *4 (D.D.C. Mar. 30, 2022) (internal citations omitted).
DISCUSSION
Six issues are in dispute in the pending cross-motions for summary judgment: (1) whether the Hearing Officer applied the appropriate burden of persuasion in the HOD; (2) whether the Hearing Officer erred on the "child find" claim; (3) whether the Hearing Officer erred in failing to find that DCPS denied A.U. a FAPE by not providing adequate IEPs for (i) April 2019; (ii) May 2019; and (iii) December 2019; (4) whether the Hearing Officer erred in finding that DCPS implemented A.U.'s May and December IEPs; and (5) whether the Hearing Officer erred in denying reimbursement for A.U.'s private placement. See generally Pls.' Mem. The analysis below addresses each issue in turn.
I. Whether the Hearing Officer Properly Applied the Burdens of Production and Persuasion.
The parties dispute whether Hearing Officer Banks applied the appropriate burden in the administrative proceedings. In IDEA administrative hearings, "the party who filed for the due process hearing shall bear the burden of production and the burden of persuasion." D.C. Code § 38-2571.03(6)(A). But if the plaintiffs meet their burden of production and establish a prima facie case, the "burden of persuasion falls on the public agency" to establish "the appropriateness of the existing or proposed program or placement[.]" W.S. v. D.C., 502 F. Supp. 3d 102, 120 (D.D.C. 2020) (citing D.C. Code § 38-2571.03(6)(A)(i)). Courts in this Circuit have found that plaintiffs' burden of production "for a prima facie case is low." Id. "In determining the sufficiency of a prima facie case, however, a hearing officer must determine whether, after considering all of a plaintiff's evidence, a reasonable trier of fact could find in favor of the plaintiff." Id. at 121.
As described by the Hearing Officer, the contested issues involved "child find, the appropriateness of the [April, May, and December] IEPs[,] placement, and the implementation of IEPs." AR 28. The Hearing Officer found that the Plaintiffs bore the burden of persuasion and production as to the child find issue, the implementation of the IEPs, and the propriety of a unilateral placement; DCPS bore the burden of production—once Plaintiffs established a prima facie case—as to the appropriateness of the IEPs and placements it provided. See AR 28 (citing D.C. Code Sec. 38-2571.03(6)(A)(i)). Plaintiffs argue that the Hearing Officer did not properly apply those burdens and that they "presented enough evidence for a reasonable trier of fact to find in their favor" whereas DCPS presented insufficient evidence to meet its burden. Pls.' Mem. at 1, 10. The District counters that the Hearing Officer correctly applied the applicable burdens. See Def.'s Mem. at 21-22.
The HOD states the correct assignment of the burdens of production and persuasion. Whether the burden was properly applied, however, is unique to each of the issues raised. The undersigned therefore addresses whether the proper burden was applied and whether the parties met their respective burdens in the subsequent sections of this opinion that discuss each issue.
II. Whether the Hearing Officer Erred in Concluding that the District Did Not Violate the "Child Find" Provision of the IDEA.
Plaintiffs challenge the Hearing Officer's resolution of the "Child Find" claim—specifically, his conclusion that the District did not deny A.U. a FAPE "by failing to identify, comprehensively evaluate in all areas of suspected disability, and find eligible for special education services at least as far back as January 2019." Pls.' Mem. at 20. 20 U.S.C. § 1412(a)(3) and its implementing regulations require states to enact policies and procedures to ensure that children "who are in need of special education and related services, are identified, located, and evaluated." 34 C.F.R. § 300.111(a)(1)(i); see also 20 U.S.C. § 1412(a)(3)(A). Commonly referred to as "Child Find," this is among the most important obligations that the IDEA imposes upon school districts. See D.L. v. D.C., 860 F.3d 713, 717 (D.C. Cir. 2017). Child Find places "an affirmative obligation [on] every public school system to identify students who might be disabled and evaluate those students to determine whether they are indeed eligible." N.G. v. D.C., 556 F. Supp. 2d 11, 16 (D.D.C. 2008) (emphasis added); see also D.C. Code § 38-2561.02(a)(2). "As soon as a child is identified as a potential candidate for services, DCPS has the duty to locate that child and complete the evaluation process." Long v. D.C., 780 F. Supp. 2d 49, 56 (D.D.C. 2011). A "[f]ailure to locate and evaluate a potentially disabled child constitutes a denial of [a free appropriate public education]." Id. (quoting N.G., 556 F. Supp. 2d at 16). The school bears the "burden of identifying and evaluating children who might have disabilities" as well as the "burden of proving that it has met this obligation." N.G., 556 F. Supp. 2d at 30.
Plaintiffs maintain that DCPS should have comprehensively evaluated A.U. "at least as far back as June 2018" because "they had sufficient information by June 2018 (and from then on) that A.U. potentially could qualify as a student with a disability." Pls.' Mem. at 29, 31. Plaintiffs fault the Hearing Officer's characterization and interpretation of the evidence, and contend that he "failed to adequately consider any data or assessment scores that showed A.U. was not on grade level." Id. at 30. Plaintiffs contend that A.U. had "a long history of issues with writing and executive functioning dating back to third grade." Id. at 31 (citing various reports). The District challenges the timeliness of Plaintiffs' arguments and alternatively argues that the Hearing Officer correctly concluded that no Child Find violation occurred here. See Def.'s Mem. at 25-26.
The District bases its timeliness argument on 20 U.S.C. § 1415(f)(3)(C), which provides that "[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). The District argues that Plaintiffs' claims are time-barred because Plaintiffs contend that the District began overlooking signs of potential disabilities in 2018 and thus base their claim on evidence that dates back to more than two years before the administrative complaint was filed on January 27, 2021. See Def.'s Mem. at 25. In response, Plaintiffs state that although "the child-find obligation was triggered in June 2018," it "continued from that point forward." Pls.' Reply at 24. Thus Plaintiffs seek to invoke the continuing violation doctrine to extend the deadline for raising a Child Find claim. Under that doctrine, if a statute "imposes a continuing obligation to act," a party's failure to act constitutes a violation that continues "until that obligation is satisfied, and the statute of limitations will not begin to run until it does." Earle v. District of Columbia, 707 F.3d 299, 307 (D.C. Cir. 2012) (quoting AKM LLC dba Volks Constructors v. Sec'y of Labor, 675 F.3d 752, 763 (D.C. Cir. 2012) (Garland, J., concurring)).
This Court has not had occasion to decide whether the Child Find requirement is the type of continuing duty to act to which the continuing violations doctrine applies. However, courts in other Circuits have found that school district's duty to identify and evaluate students who are potentially disabled is a continuing obligation. See, e.g., D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012) ("School districts have a continuing obligation under the IDEA and § 504—called 'Child Find'—to identify and evaluate all students who are reasonably suspected of having a disability under the statutes."); J.S. on behalf of B.S. v. Green Brook Twp. Pub. Sch. Dist., No. CV-1918691, 2020 WL 7028554, at *1 (D.N.J. Nov. 30, 2020) (citing D.K. for the same proposition); Demarcus L. v. Bd. of Educ. of the City of Chicago, No. 13-C-5331, 2014 WL 948883, at *5 (N.D. Ill. Mar. 11, 2014) (same); Reed v. Kerens Indep. Sch. Dist., No. 3:16-CV-1228, 2017 WL 2463275, at *14 (N.D. Tex. June 6, 2017) (same); Dubrow v. Cobb Cnty. Sch. Dist., No. 1:14-CV-00659, 2017 WL 5203047, at *12 (N.D. Ga. Feb. 28, 2017), aff'd sub nom. Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d 1182 (11th Cir. 2018) (stating that child find is a continuing obligation under the IDEA). Those cases are persuasive and consistent with the statutory text. Accordingly, the undersigned concludes that the statute of limitations for challenging DCPS's alleged failure to meet its Child Find obligations did not commence running until DCPS identified, evaluated, and found A.U. eligible for special education services in April 2019. Accordingly, this claim is timely, and the Hearing Officer properly considered evidence that predated January 2019.
The Hearing Officer summarized the evidence surrounding A.U.'s academic performance starting with the 2016-2017 school year, acknowledging A.U.'s good grades as well as a behavioral screening conducted in June 2018 that revealed "concerns in areas of attention, anxiety, depression, social engagement and executive functioning." AR 29. For the 2017-2018 school year, Hearing Officer Banks noted that A.U.'s grades remained good, but he exhibited some behavioral concerns and had difficulty with turning in homework. See id. He next considered A.U.'s performance in the 2018-2019 school year, which resulted in notices to A.U.'s parents regarding A.U.'s struggles in reading and writing. See id. Hearing Officer Banks pointed out that the notices "reassured Petitioners that [A.U.] continued to read at grade level." Id. at 30. He also observed that A.U. "had a history of Proficient and Advanced grades in every course" until "the first term of the 2018-2019 school year." Id. The Hearing Officer explained why he did not find certain evidence cited by the Plaintiffs persuasive, and ultimately concluded that A.U.'s history did not suggest that DCPS was "derelict in failing to suspect a disability." Id.
The Hearing Officer's decision is well reasoned and supported by the record, and thus warrants "due weight." Jenkins, 2005 WL 3371048, at *1. A.U. was not diagnosed with General Anxiety Disorder and Other Specified Depressive Disorder, and a SLD with impairment in reading until March 2019. See AR 151, 153. That distinguishes this case from situations where the school ignored a known diagnosis. See, e.g., N.G., 556 F. Supp. 2d at 27 (finding DCPS erred in its "child find" obligations in part because it knew about the student's formal diagnosis of ADHD and did not conduct an evaluation in response). Once the District was aware of these diagnoses, the District promptly set up a meeting to initiate A.U.'s first IEP in April 2019. In addition, A.U.'s academic record was not so concerning as to warrant intervention by the District prior to April 2019—A.U.'s grades were good, and his report cards reflected that he did not need much, if any, prompting in class. See AR 104, 106. The reports from teachers about A.U.'s reading and writing abilities were not alarming and persistent, and thus cannot reasonably be construed to put the school on notice of serious and pervasive behavior that needed to be addressed at once. See, e.g., Horne v. Potomac Preparatory P.C.S., 209 F. Supp. 3d 146, 159 (D.D.C. 2016) (finding that DCPS erred in their child find obligations when record evidence showed that the student had thirty-one documented incidents of behavioral problems at the school and a suicide attempt at school).
A.U.'s mid-term Progress Report from fifth grade showed that even though he was "presenting some academic difficult[y]," his teachers found that he was "a joyful contribution to the homeroom community," "gets along well with his classmates," was "a great addition to [the] math community," and had a "[g]ood start in 5th grade science!" AR 103-05. Even the more "negative" reports from his math and writing teachers noted that he was "reading on grade level." AR 104. Such reports were not concerning enough to "heighten the alarms" for the District. Davis v. D.C., 244 F. Supp. 3d 27, 51 (D.D.C. 2017) (noting that a student's grades plummeting to C's and a D was enough to "heighten the alarms" to the student's potential disability). Testimony from the District's witness, Ms. Barlow, also identified real concerns with "misidentifying" students as having disabilities—which can happen if the teaching methods are wrong or the interventions put in place are not a good fit—which supports the District's implementation of interventions in the form of RTIs prior to April 2019. AR 2258.
The evidence thus supports the Hearing Officer's conclusion that "the [Plaintiffs] failed to meet their burden of proving that DCPS failed to meet its child find obligations." AR 30. Consequently, the undersigned recommends that the Court affirm the Hearing Officer's decision on this issue. III. Whether the Hearing Officer Incorrectly Concluded that the April, May, and December IEPs Were Appropriate and that the May and December IEPs Were Implemented.
The IDEA "requires the school district to create and implement an [individualized education program]" for children with disabilities who are eligible for special education services. Lesesne ex rel. B.F. v. D.C., 447 F.3d 828, 830 (D.C. Cir. 2006). This IEP is "the means by which special education and related services are 'tailored to the unique needs' of a particular child." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 994, 197 L.Ed.2d 335 (2017) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)); see also Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (noting that Congress "envision[ed] the IEP as the centerpiece of the statute's education delivery system for disabled children"); Lesesne, 447 F.3d at 830; 20 U.S.C. § 1414(d)(2)(A). The IEP is "[p]repared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child." Honig, 484 U.S. at 311, 108 S.Ct. 592 (citing 20 U.S.C. § 1401(19) (1988)).
Under the IDEA, school districts must ensure that students are "assessed in all areas of suspected disability" and base the student's IEP on the most recent evaluation. Hill, 2016 WL 4506972, at *17 (citing 20 U.S.C. §§ 1414(b)(3)(B), (c)(1); 34 C.F.R. § 300.304(c)(4)). The final product "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Honig, 484 U.S. at 311, 108 S.Ct. 592.
The IEP must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew, 137 S. Ct. at 999. The IEP also must comply with the IDEA's requirement that students "be educated in the least restrictive environment possible." Leggett v. D.C., 793 F.3d 59, 74 (D.C. Cir. 2015). After the IEP is developed, the school district must provide the child with an appropriate educational placement that comports with the IEP. See 34 C.F.R. § 300.116(b)(2); Hinson ex rel. N.H. v. Merritt Educ. Ctr., 579 F. Supp. 2d 89, 99 (D.D.C. 2008). If the child's appropriate educational placement is in the regular classroom of a public education system, the IEP "should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204, 102 S.Ct. 3034.
Plaintiffs raise two challenges to the Hearing Officer's conclusions regarding the IEPs. First they contend that A.U. was denied a FAPE because the April, May, and December IEPs were inadequate, and that the Hearing Officer erred in concluding otherwise. Plaintiffs also argue that DCPS failed to properly implement the May and December IEPs, and that the Hearing Officer should have found a FAPE denial on that basis. Each of the three IEPs and the parties' respective arguments are addressed in turn below.
A. April IEP: IEP Adequacy
The parties dispute the adequacy of the April 2019 IEP. Plaintiffs contend that if Hearing Officer Banks had properly understood and considered relevant testimony and evidence, he would have found the April IEP inadequate. Specifically, Plaintiffs argue that the April 2019 IEP was inappropriate because (i) it did not address A.U.'s "deficits in orthographic processing;" (ii) the "specialized instruction hours were insufficient;" (iii) the "goals . . . were also inappropriate based on the nature and extent of the disability known at the time;" (iv) it "failed to provide appropriate modifications, accommodations, and interventions to address A.U.'s needs;" and (v) it "did not provide for any time out of [the] general education or specify that A.U. needed targeted reading intervention." Pls.' Mem. at 33, 36. The District counters that testimony from the District's witnesses showed that the IEP provided "an appropriate level of services for A.U. when it was developed." Def.'s Mem. at 31-32. The District also contends that Plaintiffs fail to show specifically how the HOD misapplied the evidence cited in Plaintiffs' motion. See id. at 30-32. According to the District, the HOD "set forth a reasoned, specific rationale for finding the April IEP to be appropriate.," and the Hearing Officer's conclusion regarding the lack of orthographic processing was "explained" by A.U.'s "grade-level performance in core subjects," among other evidence. Id. at 33.
The April IEP contained two reading goals and two behavioral development goals. See AR 202-03. It included forty-five minutes per week of special education services in reading and offered BSS for sixty minutes per month outside the general education setting. See AR 204. It did not include goals specific to A.U.'s orthographic processing deficits. See AR 2472.
The Hearing Officer's analysis of the April IEP discussed some of the issues the Parents raise here. Hearing Officer Banks relied on A.U.'s performance and testing results to conclude that A.U. was "in the average range" for a number of subjects and so the goals were appropriate to address A.U.'s needs. AR 32, 34. Indeed, the record revealed a combination of above average, average, and below average scores in the general area of reading and reading comprehension. See, e.g., AR 10 (teacher noting that A.U.'s reading was "on grade level" during the 2018-2019 school year); AR 10-11 (A.U. earned a "Basic" grade in Reading for the first three terms for the 2018-2019 school year and received Basic or Proficient grades for all other subjects for those three terms). Hearing Officer Banks also noted that the accommodations included in the April IEP addressed A.U.'s "inattentiveness and focus." AR 34. With regards to A.U.'s reading capabilities, the Hearing Officer relied on testimony and testing that suggested A.U.'s reading levels were "within normal limits" and claimed that the "record does not support that Student's reading deficiencies are as dire as asserted by Petitioners." AR 34. Although the Hearing Officer's reasoning on these issues is not particularly compelling, one can glean a basis for his decision from reading the HOD. As such, it warrants due deference. See Anderson v. D.C., 606 F. Supp. 2d 86, 90 n.1 (D.D.C. 2009) (quoting J.P. ex rel. Peterson v. County Sch. Bd., 516 F.3d 254, 261 (4th Cir. 2008)) ("[A]s long as the decision is 'sufficiently detailed to permit the district court to understand the basis for the hearing officer's resolution of the parents' claims,' the Court should afford it due deference.").
But the Hearing Officer did not offer reasoned and specific findings to support his conclusion that the IEP was adequate despite its failure to address A.U.'s orthographic processing deficits. Nor did he discuss the import of relevant evidence. Accordingly, his resolution of this issue "deserves little deference." Kerkam, 931 F.2d at 87.
Regarding orthographic processing, Hearing Officer Banks acknowledged that: "[t]he IEP addressed Student's orthographical processing in the Reading PLOP, but did not include a goal that specifically addressed it;" "the team did not specifically address orthographical processing;" and A.U. "has deficits in orthographical processing" and including "goals to address it would have been preferable." AR 33-34. But he concluded that the omission of those goals "would not impair [A.U.'s] ability to continue to make progress in reading," noting that A.U.'s "reading deficiencies are not as dire" as claimed by A.U.'s parents. AR 34. He offered no further explanation for his belief that omitting orthographical processing goals would not significantly reduce the effectiveness of the IEP or impair A.U.'s progress in reading. That is particularly perplexing given his earlier recognition that orthographic processing deficits "contribute to a slower and more effortful reading process that has the potential to negatively impact reading comprehension." AR 18; see also AR 2469 (a District witness testifying that "orthographic processing has become so much more important and it's now . . . an incredible part of . . . the literature when it comes to reading and reading disabilities").
The Hearing Officer also failed to address relevant evidence. This is not a situation where "plaintiffs alone testified in support of their position" that A.U. struggled with orthographic processing and that goals should have been included to address such deficits. M.O. v. D.C., 20 F. Supp. 3d 31, 40 (D.D.C. 2013) (citing Kerkam, 931 F.2d at 88). Instead, "several educational professionals provided support for the plaintiffs' position." Id. at 41. Ms. Mounce testified that the IEPs lacked goals addressing orthographic processing. See AR 2004, 2025. And, the District's own witnesses said that orthographic goals should have been on the IEP and admitted that tools to support orthographic processing were available at the school but not included on the IEP. See, e.g., AR 2472 (Dr. Mallory agreeing that A.U. "needed to have services that address t[he] orthographic processing deficit"); AR 2354 (Dr. Wood noting that Wilson and Seeing Stars were orthographic processing programs some students at Janney used). Not a single educational professional who testified at the Due Process Hearing challenged the position that A.U. had orthographical processing deficits. The April IEP itself noted A.U.'s "[d]eficits in orthographic processing." AR 202.
The Hearing Officer similarly failed to provide a reasoned analysis for why he believed the specialized instruction time included in the IEP was sufficient. He noted that "[a]lthough [Ms. Mounce] testified that 45 minutes per week of specialized instruction was insufficient to address [A.U.'s] reading and writing deficits, neither [Ms. Mounce nor one of the District's witness] made a recommendation as to the amount of specialized instruction or as to the academic setting." AR 34. The fact that two individuals, including Ms. Mounce, failed to recommend a specific amount of specialized instruction does not rebut or diminish Ms. Mounce's testimony that A.U. "needed more than 45 minutes" of specialized instruction. AR 2017. The Hearing Officer may not have found Ms. Mounce credible, but the Court cannot infer that or any other reasoning given the absence of a detailed explanation for the Hearing Officer's resolution of this issue.
The deficiencies in the Hearing Officer's discussion of the orthographic processing and specialized instruction issues warrant reversal. As both issues may involve educational policy concerns, the undersigned recommends that the Court remand this case to the Hearing Officer for further consideration of whether the April IEP was adequate, with instructions that he address whether the IEP's lack of orthographic processing goals made the April 2019 IEP inadequate and whether additional hours of specialized instruction are warranted. See, e.g., Iowa v. FCC, 218 F.3d 756, 760 (D.C. Cir. 2000) (remanding case for administrative judge's failure to address plaintiff's arguments); Shaw v. D.C., No. 17-cv-738, 2019 WL 498731, at *20 (D.D.C. Feb. 8, 2019) (finding remand to the Hearing Officer appropriate when "resolving [the] issue [was] likely to implicate educational policy concerns that fall within the Hearing Officer's expertise").
B. May IEP: IEP Adequacy
In May 2019, A.U.'s IEP was revised to add two written expression goals and sixty minutes per week of special education services in written expression. See AR 289, 292. It also modified BSS from sixty minutes per month outside the general education setting to thirty minutes per month outside the general education setting and thirty minutes per month inside the general education setting. See AR 292. The May IEP contained forty-five minutes per week of specialized instruction in reading inside the general education and kept the same two reading goals as the April IEP. See AR 286-92.
The parties dispute the adequacy of the May IEP. Plaintiffs argue that the May IEP was deficient because it "copied the common core standards instead of providing individualized goals, it did not include FAR testing results," it "painted the student as academically 'average,' " it "failed to provide sufficient hours of specialized instruction based on the data known at the time," and it did not "provide time for any kind of reading intervention." Pls.' Mem. at 40-41. Plaintiffs contend that the Hearing Officer should have required DCPS to "prove[ ]" that changing the IEP to reflect common core standards for sixth grade was appropriate. Id. at 42. The District counters that Plaintiffs fail to show why copying common core standards rendered the IEP inappropriate, and asserts that since the April IEP was adequate, the Hearing Officer did not err by approving an IEP that repeated its provisions and supplemented them with additional goals and services. See Def.'s Mem. at 36.
Hearing Officer Banks's analysis of the May IEP is sparse. He reasoned that "there was no meaningful change in [A.U.'s] circumstances between April 10 and May 30," and thus the May IEP "was reasonably calculated to enable the student to achieve passing marks and advance from grade to grade." AR 35. The only argument that the Hearing Officer discussed in any detail concerned Plaintiffs' assertion that the IEP failed to include OT services; he found that OT was not considered for the May IEP because the OT evaluation was not available to the District prior to the IEP meeting. See AR 34-35. The Hearing Officer failed to address the remainder of Plaintiffs' arguments outlined in the underlying administrative complaint and re-raised in the present Motion. For example, Hearing Officer Banks did not meaningfully explain or even address whether the May IEP "provided insufficient specialized education hours," "provided inappropriate IEP goals and baselines," "failed to provide appropriate placement," and "failed to provide appropriate modifications, accommodations, and interventions including an appropriate reading program." AR 34; Pls.' Mem. at 40-41. Nor did the HOD address Plaintiffs' related argument raised in the present Motion—and raised several times throughout the Hearing—that the IEP "copied the common core standards instead of providing individualized goals." Pls.' Mem. at 40-41.
The undersigned recognizes that little time passed between the creation of the April and May IEPs, which meant there was a limited amount of new data the IEP team, or the Hearing Officer, could have examined in crafting, or determining the adequacy of, the May IEP. But that does not eliminate the Hearing Officer's duty to analyze the evidence available to determine whether the IEP was "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204, 102 S.Ct. 3034.
The District defends the Hearing Officer's decision and cites Clark v. D.C. to support its assertion that the Hearing Officer appropriately relied on his decision and reasoning regarding the April IEP instead of rehashing that analysis for the May IEP. See Def.'s Mem. at 36; No. 21-cv-1541, 2023 WL 2733724 (D.D.C. Mar. 31, 2023) report and recommendation adopted, No. 21-cv-1541, ECF No. 36 (D.D.C. June 17, 2022). There, the court observed that "[i]t is 'not error to conclude' that because a student's previous IEPs had conferred meaningful educational benefits [a subsequent IEP] was reasonably calculated to do the same, having kept in place, and even supplemented, the services offered by the previous IEP." Clark, No. 21-cv-1541, ECF No. 36 at 31 (D.D.C. June 17, 2022) (quoting D.B. ex rel. Elizabeth v. Esposito, 675 F.3d 26, 38 (1st Cir. 2012)). The HOD at issue here is distinguishable from Clark; there, the court first concluded that the HOD contained a "reasoned, specific" rationale for its conclusion. Id. at 32. Here, Hearing Officer Banks provided only a conclusory assertion that the May IEP is adequate because the student's situation had not materially changed in one month. Further, the Hearing Officer's conclusion rests on the implicit assumption that the April IEP was comprehensive and appropriate. But as the adequacy of the April IEP is in question, as discussed above, that assumption does not carry the day. And he cannot simply point to the decision regarding the April IEP for support, since that decision was also flawed for reasons previously explained.
Plaintiffs have met their burden of demonstrating that the Hearing Officer erred in failing to analyze the relevant evidence and address all of Plaintiffs' arguments regarding the May IEP's adequacy. See Pls.' Mem. at 42. Accordingly, the undersigned recommends that the Court reverse the Hearing Officer's resolution of the challenge to the May IEP's adequacy, and remand this case for further proceedings. The undersigned finds remand appropriate because the Hearing Officer failed to engage with many of Plaintiffs' arguments, and because resolving such arguments may "implicate educational policy concerns that fall within the Hearing Officer's expertise." Shaw, 2019 WL 498731, at *20; see also Iowa, 218 F.3d at 760.
C. December IEP: IEP Adequacy
Plaintiffs also contend that the December IEP was inadequate. See Pls.' Mem. at 42. Leading up to the implementation of this IEP, Plaintiffs and their special education consultant Amy Mounce shared their concerns with the District about A.U.'s academic and social struggles in anticipation of a revised IEP. See AR 401-02. In the present motion, Plaintiffs reiterate some of these same concerns. Although Plaintiffs' arguments are scattered and difficult to follow, the main arguments appear to be as follows: the December IEP did not address orthographic processing deficits, see Pls.' Mem. at 42-43; it "contained an insufficient amount of specialized instruction and [A.U.] needed a reading program targeting his deficits in orthographic processing;" id. at 55; it "failed to reflect the ELA and Math inclusion support that A.U. received and heavily relied upon," id. at 43; it failed to include the hours of specialized instruction included in the proposed October IEP, id.; it failed to identify A.U.'s vision difficulties, id. at 44; it failed to include an increase in social, emotional, and behavior services outside the general education setting, id. at 44-45; it failed to include "supported classes in all academic areas," id. at 45; it failed to include a "list of additional classroom aids and services," id. The Plaintiffs argue that the Hearing Officer "fail[ed] to adequately consider that A.U. was regressing," improperly relied on A.U.'s "inflated grades," and ignored much of the expert testimony. Id. at 50, 53-54.
The District claims that it met its burden of showing the December IEP was appropriate. See Def.'s Mem. at 41. The District argues that because Plaintiffs' consultant assisted in crafting the December IEP, it actually hurts Plaintiffs' argument challenging this IEP since it was partially developed based on feedback from Ms. Mounce. See id. at 39. The District defends the implementation of the STARI reading program in the December IEP as a tool that would assist A.U.'s needs in decoding and reading fluency, despite not "mainly focus[ing] on orthographic processing." Id. at 40. The District further asserts that various tests and grades support the HOD on this IEP. See id. at 41.
The December IEP included three reading goals; three written expression goals; one adaptive/daily living skills goal; and three behavioral development goals. See AR 500-08. The IEP also included two hours per week of reading services inside the general education; two hours per week of written expression services inside the general education; and two hours per week of reading services outside the general education. See AR 509. The IEP also prescribed 120 minutes per month of BSS outside the general education setting and thirty minutes per month inside the general education setting. See id.
Hearing Officer Banks addressed several of the issues raised by Plaintiffs regarding their concerns with the December IEP. For example, regarding Plaintiffs' claim in the administrative complaint that OT services should have been included in the IEP, the Hearing Officer's conclusion was supported by the evidence on which he relied; he weighed the competing testimony from the Plaintiffs and the District's witnesses on whether OT services were necessary. See AR 35-36, 38. Hearing Officer Banks also reasoned that many of the Parents' concerns were addressed by the December IEP's inclusion of assistive technology in the form of access to a laptop, a written expression goal which required the use of a graphic organizer and addressed A.U.'s ability to write a competent essay, several hours of specialized instruction both in and outside general education, and an increase in classroom aids and services. See AR 35-36. He concluded that Dr. Wood, the school's special education coordinator at Janney elementary countered Plaintiffs' concerns by noting that A.U. "was already performing at grade level in a general education environment." AR 35. The Hearing Officer cited A.U.'s grades to support the appropriateness of A.U.'s reading program, as well as testimony from a District witness that claimed A.U. performed relatively average in reading. See AR 36-37. He cited cases to support his reliance on A.U.'s grades to conclude that the IEP was supported by case law and the evidence. See AR 38.
Although the Hearing Officer provided a more detailed analysis of this IEP than some of the earlier rulings, his decision on this issue deserves little deference for several reasons. First, the HOD glossed over key issues raised in the administrative complaint and contradictory testimony, such as A.U.'s orthographic processing deficits and the stutter that were addressed in testimony by both Plaintiffs' and the District's witnesses. Hearing Officer Banks failed to engage with the evidence in the record that showed A.U. was declining academically in several respects.
Regarding orthographic processing, Hearing Officer Banks once again did not weigh the competing testimony on whether the IEP addressed this issue or explain why he thought the IEP addressed such deficits. The HOD says that Plaintiffs' October 2019 emails "offer no support" for the contention that the student's reading programs were inappropriate because A.U.'s "reading level was Average in Broad Math in March 2019" and A.U. was also at grade level in Reading on the F&P assessment in the May IEP. AR 36-37. It is entirely unclear how the evidence cited—which includes test scores from March and May of 2019—supports the argument that A.U.'s orthographic processing deficits were accounted for while at Deal. Nor does he address testimony from the District's own witnesses about the IEP. Dr. Edge agreed that "the STARI program," which was implemented in the December IEP was "not a program to [only] address orthographic processing." AR 2316-17. And the District acknowledges that two assessments administered at the beginning of the 2019-2020 school year demonstrated A.U.'s weakness in orthographical processing. See Def.'s Mem. at 37; AR 501.
With regards to the stutter, Hearing Officer Banks noted that A.U. "was reported to have begun a stutter," citing an IEP progress report from January 2020. AR 37. But he failed to acknowledge the evidence of A.U.'s stutter prior to the implementation of the December IEP. In meeting notes from December 17, 2019, Ms. Mounce documented that A.U.'s reading teacher said "his stutter is getting significantly worse" and that A.U. "was at 87 [words per minute] [on October 25th] and increasing and [on December 17th] was at 67 [words per minute]" reading the same passage. AR 501, 514; see also AR 516. The District's witness Dr. Edge similarly testified that she recalled Ms. Wells raising the stutter issue. See AR 2315. Ms. Wells confirmed that A.U.'s stutter "worsened over the school year" in her presence and that Mr. Silberman conveyed to her that A.U.'s stutter was present in the classroom (outside of Ms. Wells' class) and getting worse. See AR 2572-73.
The HOD also misconstrues testimony of one of the District's witnesses in an attempt to undercut Plaintiffs' argument about A.U.'s progress and needs. Hearing Officer Banks cites Dr. Wood's testimony discussing the April IEP, in which Dr. Wood opined that A.U. was performing at grade level and the primary concern was his fluency. See AR 2342-49. Dr. Wood was a support coordinator at Janney elementary; A.U. was not even enrolled at Janney when the December IEP was created. Thus it was wrong for the Hearing Officer to rely on such testimony in concluding that this particular IEP was appropriate.
Finally, the HOD incorrectly summarizes the record evidence to draw conclusions unfairly favorable to the District. He did not address material crucial to evaluating the sufficiency of the IEP. See, e.g., McNeil v. D.C., 217 F. Supp. 3d 107, 115 (D.D.C. 2016) (remanding case for further consideration where Hearing Officer failed to consider the complete evidentiary record when deciding whether the IEP adequately addressed the student's needs). In concluding that "none of A.U.'s teacher[s] expressed any concerns about . . . [a] disability preventing [A.U.] from accessing the curriculum" the Hearing Officer completely disregarded the plethora of evidence from teachers outlining A.U.'s struggles with his stutter, reading, focus, attention in class, etc. in the 2019-2020 school year. AR 38. And he especially disregarded the IEP itself which stated that A.U.'s "executive functioning challenges . . . impact[ ] his ability to access the curriculum." AR 527 (emphasis added).
Because the Hearing Officer failed to engage with the record evidence demonstrating A.U.'s regression in reading and other areas, misconstrued testimony, and failed to address many of the Parents' arguments, the undersigned recommends that the Court reverse the Hearing Officer's resolution of the dispute regarding the adequacy of the December IEP and remand for further proceedings. The undersigned finds remand appropriate because the HOD failed to consider or discuss contradictory testimony and address several of Plaintiffs' arguments, and because the Court may not "substitute its own notions of sound educational policy for those of school authority." Turner v. D.C., 952 F. Supp. 2d 31, 35-36 (D.D.C. 2013); see also M.O., 20 F. Supp. 3d at 41 (remanding to Hearing Officer where he failed to consider arguments and evidence critical to the plaintiff's claims).
D. May and December IEPs: Implementation
A school district "must ensure that . . . special education and related services are made available to the child in accordance with the child's IEP." 34 C.F.R. § 300.323(c)(2). A "de minimis failure to implement all elements of [an] IEP" does not violate the IDEA. Wilson v. D.C., 770 F. Supp. 2d 270, 274 (D.D.C. 2011). "To meet its burden, the moving party 'must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.' " Middleton v. D.C., 312 F. Supp. 3d 113, 144 (D.D.C. 2018) (quoting Beckwith v. D.C., 208 F. Supp. 3d 34, 49) (D.D.C. 2016). In analyzing failure to implement claims, the inquiry "focuse[s] on (1) the proportion of services mandated to those actually provided, and (2) the goal and import (as articulated in the IEP) of the specific service that was withheld." Wilson, 770 F. Supp. 2d at 275.
Plaintiffs argue that DCPS failed to implement the May and December IEPs because "they did not provide executive functioning supports, behavior supports, accommodations, and, once DCPS implemented distanced learning, specialized instruction." Pls.' Mem. at 57; AR 1468. In support of their claim, the Parents cite a plethora of evidence to show that A.U. "was not being provided" various tools and services to which he was entitled under the IEP, such as a standing desk and movement breaks; a modified workload; the ability to "opt out of timed tests and/or did not have a familiar examiner"; multimodal instruction; technology/computer/laptop and access to tools like spellcheck, audio books, recorded texts, enlarged font; prompts to initiate and complete tasks or wear glasses; repetition and clarification of directions consistently; preferential seating; writing and reading assistance; support and check-ins; "social-emotional check-in[s]" with social workers; and supports during distanced-learning. Pls.' Mem. at 58-59. Plaintiffs argue that the Hearing Officer erred by "ignor[ing] the evidence" that "show[ed] a failure to provide A.U. with a number of accommodations and 'other class aids and services.' " Id. at 59.
The District, on the other hand, argues that DCPS "substantially implemented A.U.'s May and December IEPs and Plaintiffs did not prove otherwise." Def.'s Mem. at 41. The District cites IEP Progress Reports exhibiting A.U.'s progress in various subjects. See id. at 43-44. The District also supports its position with testimony from teachers who claimed that A.U. was receiving the various supports outlined in his IEPs. See id. The District also points out that the evidence Plaintiffs cite does not "support their case." Id. at 44.
The HOD dedicates one paragraph to this issue. First, Hearing Officer Banks opines that the May and December IEPs probably should have not included so many accommodations addressing A.U.'s executive functioning deficits because such "deficits [we]re exaggerated." AR 38. That is not relevant to whether the IEP was implemented. Next, Hearing Officer Banks incorrectly states that "Petitioners offered no evidence that DCPS failed to provide the services or accommodations other than undocumented assertions by [Ms. Mounce]." AR 38. The record includes, and Plaintiffs cite to, several emails sent on behalf of Plaintiffs, not Ms. Mounce, that outline the Parents' concerns with A.U. not receiving some accommodations. See, e.g., AR 308-311 (email from A.U.'s parents to the District noting that A.U. reported "that he is not being provided his acommoda[tions]"). Although the Hearing Officer may not have found such evidence persuasive, it was incorrect for him to assert that the only evidence for this claim came from Ms. Mounce. Finally, he concluded that the evidence offered for the school's failure to implement the IEP during virtual learning was not persuasive. See AR 38-39.
In light of the lack of reasoned analysis in the HOD on this issue, the undersigned affords it little deference. Kerkam, 931 F.2d at 87. Upon review of the evidence, however, the undersigned agrees that Plaintiffs have failed to show that the IEPs were not properly implemented. Plaintiffs argue that various accommodations were not provided, or were provided on an inconsistent basis, to A.U. However, it is the Plaintiffs' burden to show that the District displayed a "material failure" to implement the student's IEP. Middleton, 312 F. Supp. 3d at 144; see also Beckwith, 208 F. Supp. 3d at 50. Based on the totality of the evidence in the record, the undersigned finds that the Plaintiffs did not meet their burden.
Plaintiffs rely on a variety of evidence to support their arguments. Plaintiffs cite emails from the Parents to the District, emails between the Parents and Ms. Mounce, notes from meetings, and a chart created by the parents. Some emails cited by the parties predate implementation of the IEPs and thus are irrelevant to this claim. See, e.g., AR 296-97 (email exchange from June 2018 between A.U.'s father and teacher); AR 301 (email exchange from December 2018). Other emails and notes cited by Plaintiffs fail to demonstrate that A.U. was clearly not receiving a support, or not consistently receiving supports. See e.g., AR 270 (notes from September and October 2019 meetings between A.U.'s Parents and the school about A.U.'s various supports); 306-07 (discussing A.U.'s social emotion check-ins); AR 315 (email from A.U.'s father to Mr. Silberman in which A.U.'s father is concerned A.U. is not receiving supports, like check-ins on understanding and overall executive functioning); AR 334 (December 2019 email indicating that A.U. was having check ins); AR 337 (teacher comments noting A.U.'s use of fidgets, a rubix cube, in class); and AR 396 (discussion about A.U. potentially not getting check-ins).
There is record evidence, some of which is cited by the District, that suggests that A.U. was receiving his supports. Ms. Khuu, A.U.'s writing teacher at Janney, testified that she provided several of the interventions listed in the accommodations section of the May IEP. See AR 2392, 2394, 2396, 2399. Ms. Wells and Dr. Edge both testified that they had provided A.U. with supports. See AR 2556-59, 2265-66, 2277-78. Even Ms. Mounce testified that A.U. was at least occasionally receiving a lot more support than was actually provided for on his IEP—specifically, that Mr. Silberman would be in the classroom for "more [hours] than what's listed on th[e] IEP." See AR 1957-58.
The undersigned acknowledges that some evidence does suggest that A.U. was not consistently receiving supports. For example, in emails from A.U.'s parent to various teachers and administrators, the parent noted that A.U. claimed he was not getting access to a laptop or i-Reader or receiving untimed tests, movement breaks, or access to standing desks. See AR 310, 518. In an email from November 2019, one of A.U.'s teachers noted that she had not yet received his IEP. See AR 321. This suggests the IEP was not being implemented since the teacher was unaware of it. There is some additional evidence in the record, including notes prepared by A.U.'s parents or emails from A.U.'s parents, that suggests A.U. was not consistently receiving clarification of directions or access to enlarged font in one class. See AR 340, 408-09, 414-15, 518. The evidence also suggested that assignments were not being clearly discussed with A.U. and that A.U. felt like the teacher did not like when he asked questions. See AR 337. A spreadsheet outlining A.U.'s check-ins suggested that A.U. was "not allowed" to take breaks; that "[n]o teachers remind[ed] him" to use glasses except for Mr. Silberman; and that he "sometimes" worked in small groups, received repeated and clarified instructions from teachers, and received check ins from Mr. Silberman. AR 347-48. In early 2020, a parent-created chart suggested that A.U. was not receiving many of the supports his IEP was supposed to offer. See AR 354-55. An email from A.U.'s father from January 2020 noted that over the years A.U.'s requests have largely been ignored by teachers. See AR 337.
The Parents also raised concerns about the IEP's implementation during distance learning. When remote learning began, A.U.'s father reached out to the District about setting up meetings and ensuring A.U. was receiving proper supports. See AR 356. Mr. Silberman promptly responded to A.U.'s father that same day, outlining solutions to ensure A.U. was receiving support in remote learning. See AR 360. A.U.'s father noted in May that A.U. was receiving check-ins with Mr. Silberman to help guide A.U.'s reduced workload. See AR 366.
On balance, the evidence does not indicate that the District "failed to implement substantial or significant provisions of the IEP." Beckwith, 208 F. Supp. 3d at 49 (citations omitted). Relevant to the court's inquiry is the "(1) the proportion of services mandated to those actually provided, and (2) the goal and import (as articulated in the IEP) of the specific service that was withheld." Wilson, 770 F. Supp. 2d at 275. Both the May and December IEPs contained several goals in various subjects—such as reading, written expression, and behavioral support services—and multiple services and accommodations. See, e.g., AR 292 (May IEP special education and related services section and "other classroom aids and services" section); AR 510 (December IEP "other classroom aids and services" section).
A review of the IEPs shows that the support the IEPs were intended to provide consisted of several hours per week of support in reading, written expression, and behavioral support, and on a more daily basis, teachers were supposed to engage in a variety of services to aid in A.U.'s executive functioning; these supports would likely take less than several hours per week to implement. Thus, in analyzing the first prong, "the proportion of services mandated" appears to be made up of a majority of specialized instruction in reading, written expression, and behavioral supports. Wilson, 770 F. Supp. 2d at 275. Regarding what was "actually provided," the evidence shows that the District failed to implement some of A.U.'s executive functioning supports. Id. The evidence suggests that teachers occasionally failed to implement portions of the IEP, such as allowing A.U. to have movement breaks or providing clarification about assignments. But the record does not show that A.U. failed to receive the required hours of specialized instruction as listed in his IEP. Beckwith, 208 F. Supp. 3d at 49 (finding the IEPs were improperly implemented when school missed between "207.25 and 287.25 hours of required instruction during" a school year). Nor does the lack of providing some of the accommodations prescribed in the IEP suggest "more than a minor discrepancy between the services a school provides . . . and the services required by that child's IEP." James v. D.C., 194 F. Supp. 3d 131, 139 (D.D.C. 2016). Nor did the District admit to or suggest that they were unable to implement the IEP. Rather, it was A.U.'s Parents who raised concerns about the IEP's implementation, not the District. See AR 2205; James, 194 F. Supp. 3d at 141 (evidence suggesting that school staff voiced their concerns that they could not implement the child's IEPs led to a finding that the IEPs were not implemented).
Next, courts examine "the goal and import (as articulated in the IEP) of the specific service that was withheld." Wilson, 770 F. Supp. 2d at 275. The specific services that were occasionally withheld varied, but generally fell into the category of executive functioning accommodations. The executive functioning supports in the May and December IEPs were aimed at addressing a wide range of A.U.'s difficulties in the classroom. See, e.g., AR 287-291; AR 499-513 (A.U.'s May and December IEP noting that A.U. "frequently becomes overwhelmed or appears frustrated with academic expectations;" "responds well to one-one clarification of assignments, directions, and expectations;" "should have use of a laptop computer as often as possible;" "struggles to begin classwork upon assignment and can grow frustrated quickly if he doesn't understand directions for the first time;" "struggles with independently following directions for an assignment;" "demonstrates executive functioning challenges and emotional difficulties that appear to be having an adverse effect on him at school [which] impact[s] his ability to access the curriculum"). Based on the information included in the IEPs, the goals of the various executive functioning supports were intended to help A.U. manage anxiety and stress, complete classwork and homework, and generally create an environment where both class material and instruction were more accessible for A.U. See AR 520-27, 530. Thus, the supports were important to A.U.'s learning development, and it was critical that the school was implementing these supports most of the time. And that is just what the evidence here shows. As explained in the preceding paragraphs, the evidence merely suggests that teachers occasionally withheld some of these services outlined in the IEP. For the most part, the evidence demonstrates that A.U. received most of the important executive-functioning-supporting accommodations outlined in his IEPs.
In sum, upon consideration of "the proportion of services mandated to those actually provided," and "the goal and import of the specific service[s] withheld," the undersigned finds that the Plaintiffs did not meet their burden and " 'demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.' " Middleton, 312 F. Supp. 3d at 144 (quoting Beckwith, 208 F. Supp. 3d at 49); Wilson, 770 F. Supp. 2d at 275. The undersigned therefore recommends affirming the HOD on this issue.
IV. Whether Plaintiffs Are Entitled to Tuition Reimbursement and Placement at Siena.
Finally, Plaintiffs argue that their unilateral placement of A.U. at Siena was justified. See Pls.' Mem. at 55. "If there is no public school which is suitable to be the educational placement of a child with an individualized education program, under IDEA, the school district must pay the cost of sending the child to an appropriate private school." 67B Am. Jur. 2d Schools § 381; see also Z.B. by & through Sanchez v. D.C., 382 F. Supp. 3d 32, 37 (D.D.C. 2019), aff'd sub nom. Sanchez v. D.C., 815 F. App'x 559 (D.C. Cir. 2020). Tuition reimbursement is appropriate for "parents who place children in private school rather than accept a deficient public school IEP." Reid, 401 F.3d at 522. "Parents may receive tuition reimbursement if the Court finds that (1) the public placement violated the IDEA, and (2) the private school placement was proper under the Act." Anderson, 606 F. Supp. 2d at 90. If the public school placement was appropriate, the parents are not entitled to reimbursement and the second factor need not be addressed. Id. "The appropriateness of the public school placement turns on two further sub-issues: (1) whether DCPS complied with IDEA's procedural requirements, and (2) whether the IEP was reasonably calculated to provide some educational benefit to [the student]." Id. If "DCPS has made available a free appropriate public education to [the] child, . . . DCPS cannot be required to pay for the education his parents would prefer." Id. at 93.
Plaintiffs assert that because the December IEP was inadequate, "the Hearing Officer should have also found the placement resulting from that IEP inappropriate." Pls.' Mem. at 55. Plaintiffs further argue that "the equities" weigh in their favor on this claim, since they "were very clear about their disagreements regarding the IEPs developed by DCPS" and they "g[ave] notice prior to the unilateral placement." Id. at 56, 60. Plaintiffs cite to testimony and reports from Siena to bolster their argument that A.U. needed more curriculum modifications than were afforded to him at Deal. See id. at 56-57. Plaintiffs' argument on this claim requires a finding that the December IEP was inappropriate—they do not offer any other arguments for the placement. See id. at 57. Instead, they just state that the Hearing Officer "should have concluded that Siena was 'appropriate under the Act' and awarded reimbursement for the 20-21 school year." Id.
The District disputes the premise underlying the Parents' argument—that the December IEP was inappropriate. See Def.'s Mem. at 45-46. The District contends that the December IEP was appropriate "because it enabled A.U. to make progress in light of his circumstances" and that Deal was an "appropriate setting" for A.U. Id. at 45.
The HOD contains only a brief discussion of this issue. Hearing Officer Banks concluded that Plaintiffs were not entitled to reimbursement for the placement of A.U. at Siena because the December IEP was "reasonably calculated to enable [A.U.] to make academic progress." AR 38. Because of that, "DCPS provided [A.U.] an appropriate IEP to begin the 2020-2021 school year." Id.
The Court must first determine whether "public placement violated the IDEA." Anderson, 606 F. Supp. 2d at 90. But resolving that issue turns on whether the December IEP and corresponding placement at Deal were inappropriate and therefore denied A.U. a FAPE. As noted in the preceding sections, the undersigned recommends that the Court reverse the Hearing Officer's ruling regarding whether the December IEP was appropriate and remand to the Hearing Officer for further proceedings. Accordingly, the undersigned also recommends reversing and remanding the issue of whether Plaintiffs are entitled to tuition reimbursement to the Hearing Officer for further proceedings.
RECOMMENDATION
For the preceding reasons, the undersigned recommends that this Court DENY-IN-PART the Parents' Motion for Summary Judgment, ECF No. 49, insofar as that motion seeks reversal of the Hearing Officer's determination on the child find claim and IEP implementation claim; and GRANT-IN-PART the District's Cross-Motion for Summary Judgment, ECF No. 50, seeking affirmation on those same points. The undersigned further recommends that this Court GRANT-IN-PART the Parents' Motion for Summary Judgment, ECF No. 49, insofar as that motion seeks remand of the Hearing Officer's decisions on whether the April, May, and December IEPs violated A.U.'s right to a FAPE, and whether the Parents were entitled to tuition reimbursement; and DENY-IN-PART the District's Cross-Motion for Summary Judgment, ECF No. 50, insofar as it seeks affirmation of those decisions; and REMAND those issues for further administrative proceedings.
REVIEW BY THE DISTRICT COURT
The parties are 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 a Report and Recommendation must file a written objection with the Clerk of this Court within fourteen days of the party's receipt of the Report and Recommendation. The written objections must specifically identify the portion of the report or recommendation to which objection is made and the basis for such objection. The parties are further advised the failure to file timely objections to the findings and recommendations set forth in this report may waive that party's 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).