UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) ) DONIELLE LONG, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2130 (GK) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiffs are D.L., a minor, and his mother, Donielle Long.

On November 13, 2009, Plaintiffs brought suit under

(i)(2)(A) of the Individuals with Disabilities Education Act

(“IDEA”) against Defendants District of Columbia, Mayor Vincent

Gray, Acting Attorney General Irvin Nathan, and Acting Chancellor

of the Public Schools Kaya Henderson.1 This matter is before the

Court on Plaintiffs’ Motion for Summary Judgment [Dkt. No. 12] and

Defendants’ Cross Motion for Summary Judgment [Dkt. No. 13]. Upon

consideration of the Motions, Oppositions, Replies, and the entire

record herein, and for the reasons stated below, Plaintiffs’ Motion

for Summary Judgment is granted in part and denied in part, and

1 Pursuant to Fed. R. Civ. P. 25(d), Defendants Gray, Nathan, and Henderson are automatically substituted for their predecessors Adrian Fenty, Peter Nickles, and Michelle Rhee. Defendants’ Motion for Summary Judgment is granted in part and

denied in part.

I. Factual and Procedural Background

D.L. is a thirteen year old student currently living in the

District of Columbia. See Administrative Record (“AR”) at 268. D.L.

began attending Brightwood Elementary School (“Brightwood”) in

kindergarten, transferred to Roots Public Charter School (“Roots

PCS”) for the second through fifth grades, and subsequently re-

enrolled at Brightwood for the 2008-2009 school year.

.

The District of Columbia Public Schools (“DCPS”) acts as the local

educational agency (“LEA”) for Roots PCS.

.

In the fall of 2006, a Multi-Disciplinary Team (“MDT”) at

Roots PCS referred D.L. to Dr. Keisha Mack due to concerns about

his academic performance.

. On October 10, 2006, Dr. Mack

completed a psycho-educational evaluation of D.L. and diagnosed him

with a learning disorder, a developmental coordination disorder,

and a possible language disorder.

. Dr. Mack

recommended that D.L. receive specialized education services to

address his weaknesses in reading and writing.

. She also

recommended that an MDT at Roots PCS further assess D.L. with a

speech-language evaluation, an occupational therapy (“OT”)

evaluation, a clinical evaluation, and a behavior intervention plan

2 (“BIP”).

DCPS did not complete the recommended tests or provide

special education services to D.L.

.

On January 22, 2009, D.L.’s mother, concerned about D.L.’s

lack of academic progress at Brightwood, requested DCPS to

reevaluate him for special education eligibility.

. She

asked DCPS to perform psycho-educational, clinical psychological,

speech and language, social history, and OT evaluations, as well as

a medical assessment.

On March 20, 2009, Brightwood convened an MDT meeting,

including D.L.’s mother and educational advocate, to determine

D.L.’s eligibility for special education services.

.

Over the advocate’s objection, the MDT did not find the 2006

psycho-educational evaluation performed by Dr. Mack conclusive as

to D.L.’s current eligibility for special education services and

decided to withhold an eligibility determination until re-

evaluations were completed.

. The MDT stated that D.L.

would be awarded compensatory education services dating back to

October 2006 if he was determined to be eligible for special

education after testing.

. The MDT developed a student

evaluation plan (“SEP”), which included comprehensive

psychological, social history, and speech and language evaluations.

. The MDT meeting notes reflected that D.L.’s mother no

3 longer desired that D.L. receive an OT evaluation.

. On

April 7, 2009, however, Ms. Long’s counsel sent a letter to DCPS,

stating that the parent’s position on the OT evaluation had been

misstated and that she wanted D.L. to receive the evaluation.

.

On April 9, 2009, Plaintiffs filed a Due Process Complaint.

Plaintiffs alleged that DCPS had (1) violated Child Find procedures

by failing to identify D.L. as a student with a specific learning

disability, develop an Individualized Educational Program (“IEP”),

and/or make special education services available to the student;

and (2) failed to conduct the re-evaluations requested by the

parent and/or failed to conduct re-evaluations in a timely manner

and reconvene an MDT to review evaluation results.

.

On April 22, 2009, DCPS completed the speech and language

evaluation of D.L. and determined that the results were not

consistent with a diagnosis of speech and language impairment.

. On April 30, 2009, DCPS completed the social history

report, which indicated that D.L. continued to experience academic

difficulties and behavior problems.

. On May 12, 2009,

DCPS completed the comprehensive psychological evaluation of D.L.,

and the results indicated that D.L. met the DCPS criteria for

special education intervention.

.

4 On May 18, 2009, DCPS convened a second MDT meeting to review

the 2009 evaluations.

. The MDT determined that D.L. was

eligible for special education services as a learning disabled

student.

. Accordingly, DCPS developed an IEP consisting

of fifteen hours per week of individualized instruction in and out

of the general education setting, thirty minutes per week of

behavioral support services, and one hour per month of speech and

language consultation services.2

. The MDT meeting

notes indicate that the MDT thought that Brightwood would be unable

to implement the IEP.

. At the same May MDT meeting, DCPS

refused to provide D.L. with compensatory education services from

2006.

. DCPS also failed to complete additional

testing that Plaintiffs had requested (e.g. an OT evaluation) or

that Dr. Mack had recommended in her 2006 evaluation of D.L. (e.g.

a BIP).

.

D.L.’s mother and his educational advocate disagreed with the

proposed IEP and sought a compensatory education plan including one

hour per week of counseling, two hours per week of individualized

tutoring in reading and math, one hour per week of independently

2 The record reveals that page 5 of the IEP, which noted the 30 minutes per week of behavioral support services, was missing from the parent’s copy of the IEP. Over Plaintiffs’ objection, the Hearing Officer permitted Defendants to submit page 5 of the IEP into evidence at the administrative hearing. See AR at 12.

5 provided speech-language therapy, summer camp to address social and

emotional behavior deficits, and a Lindamood Bell assessment.

. The parent and advocate also requested a BIP, which would

have required completion of a functional behavioral assessment

(“FBA”), and an OT evaluation.

. The MDT declined to

implement the suggested additions to the IEP.

.

On June 4, 2009, Plaintiffs filed an Amended Due Process

Complaint. Plaintiffs supplemented their initial Complaint with

allegations that DCPS failed to (1) develop an appropriate IEP;

(2)provide an appropriate placement for D.L.; (3) complete an OT

evaluation; (4) conduct a BIP/FBA; and (5) provide D.L. with

compensatory education services.

.

On August 5, 2009, an administrative hearing was held.

. Upon consideration of the evidence and testimony presented,

the Hearing Officer issued a decision and order on August 15, 2009

dismissing Plaintiffs’ Amended Complaint with prejudice.

.

The Hearing Officer determined that Plaintiffs had failed to show

that Defendants violated the IDEA.

Subsequently, on November 13, 2009, Plaintiffs brought a civil

action in this Court challenging the Hearing Officer’s decision

pursuant to

(i)(2)(A). On March 4, 2010, Plaintiffs

filed a Motion for Summary Judgment [Dkt. No. 12]. On April 2,

6 2010, Defendants filed a combined Cross-Motion for Summary Judgment

and Opposition to Plaintiffs’ Motion [Dkt No. 13]. On April 24,

2010, Plaintiffs filed a combined Reply to Defendant’s Opposition

and Opposition to Defendant’s Cross-Motion [Dkt. No. 16]. On May

17, 2010, Defendants filed a Reply to Plaintiffs’ Opposition [Dkt.

No. 17].

II. Standard of Review

Summary judgment will be granted when the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits or declarations, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

A fact is “material” if it might affect the outcome of the action

under the governing law. Anderson v. Liberty Lobby, Inc.

,

,

(1986).

The party seeking summary judgment bears the initial burden of

demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett,

,

,

(1986). The nonmoving party then must “go beyond the

pleadings and by [its] own affidavits, or by depositions, answers

to interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.”

(internal quotations omitted). See Laningham v. U.S. Navy,

(D.C. Cir. 1987) (nonmoving party has affirmative duty

“to provide evidence that would permit a reasonable jury to find”

in its favor).

In deciding a motion for summary judgment, “the court must

draw all reasonable inferences in favor of the nonmoving party, and

it may not make credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plumbing Prods., Inc.,

,

,

(2000). Ultimately, the court must

determine “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Liberty Lobby,

.

III. Analysis

A. IDEA Framework

Congress enacted the IDEA to ensure that children with

disabilities have access to “a free appropriate public education

that emphasizes special education and related services designed to

meet their unique needs and prepare them for employment and

independent living.”

(d)(1)(A) (2005). School

districts must ensure that “all children with disabilities residing

in the State . . . who are in need of special education and related

services” are identified. Branham v. Gov’t of the District of

8 Columbia,

(D.C. Cir. 2005) (quoting

(a)(3)(A)). Once such children are identified, a “‘team’

including the child’s parents and select teachers, as well as a

representative of the local educational agency with knowledge about

the school's resources and curriculum, develops an ‘individualized

education program,’ or ‘IEP,’ for the child.” Branham,

. “[T]he IEP must, at a minimum, ‘provid[e] personalized

instruction with sufficient support services to permit the child to

benefit educationally from that instruction.’”

(citing Bd. of

Educ. Hendrick Hudson Cent. Sch. Dist. v. Rowley,

,

,

(1982)).

State educational agencies and LEAs receiving federal

assistance under the IDEA must institute procedural safeguards,

including providing parents of a disabled child “an opportunity to

present complaints with respect to any matter relating to the

identification, evaluation, or educational placement” of their

child.

(a), (b)(6). After parents make such a

complaint, they are entitled to “an impartial due process hearing”

conducted by the agency.

§ 1415(f).

During a due process hearing held pursuant to the IDEA, “DCPS

bears the burden of proof, based solely upon the evidence and

testimony presented at the hearing, that the action or proposed

9 placement is adequate to meet the education needs of the student.”

D.C. Mun. Reg. § 3030.3; see also Scorah v. District of Columbia,

(D.D.C. 2004).

Any party aggrieved by the findings or decision of a hearing

officer may bring a civil action in state or federal district court

to obtain appropriate relief.

(i)(2)(A). The party

challenging a hearing officer’s decision in federal court carries

the burden of proof by a preponderance of the evidence.

(i)(2)(C); Angevine v. Smith,

(D.C. Cir.

1992); Kerkam v. McKenzie,

(D.C. Cir. 1988).

While the court may make an independent determination, “it

must also give ‘due weight’ to the administrative proceeding and

afford some deference to the expertise of the hearing officer and

school officials responsible for the child’s education.” Lyons v.

Smith,

(D.D.C. 1993). When neither party has

requested the court to hear additional evidence, the “motion for

summary judgment is simply the procedural vehicle for asking the

judge to decide the case on the basis of the administrative

record.” Heather S. v. Wisconsin,

(7th Cir.

1997).

Although the courts should not “substitute their own notions

of sound educational policy for those of the school authorities

10 which they review,” Rowley,

, “given the district

court's authority to ‘hear additional evidence at the request of a

party’ and ‘bas[e] its decision on the preponderance of the

evidence,’ IDEA ‘plainly suggest[s] less deference than is

conventional’ in administrative proceedings.” Reid v. District of

Columbia,

(D.C. Cir. 2005)(internal citations

omitted).

The role of a reviewing court under the IDEA is two-fold.

First, it must determine whether DCPS has complied with the

procedural requirements of the IDEA. Rowley,

.

Second, it must determine whether the “individualized educational

program developed through the Act’s procedures [is] reasonably

calculated to enable the child to receive educational benefits.”

.

In this case, Plaintiffs challenge the Hearing Officer’s

decision that DCPS provided D.L. with a Free Appropriate Public

Education (“FAPE”) on five grounds. Plaintiffs argue that (1) DCPS

violated its Child Find obligations by failing to timely identify

D.L. as a child with a learning disability; (2) DCPS failed to

develop an appropriate IEP; (3) DCPS failed to provide an

appropriate placement; (4) DCPS failed to evaluate D.L. in all

suspected areas of disability, including failure to conduct an OT

evaluation and a BIP/FBA; and 5) DCPS failed to provide D.L. with

11 necessary compensatory education. See generally Pls.’ Mot. Each of

these claims will be addressed in turn.

B. DCPS’ Compliance With Its Child Find Obligations

Plaintiffs allege that DCPS failed to comply with its “Child

Find” obligations. Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”) 6. The

IDEA requires LEAs to have a comprehensive Child Find system to

ensure that all children who are in need of early intervention or

special education services are located, identified, and referred

appropriately. See

(a)(3). Child Find is DCPS’

affirmative obligation under the IDEA: “As soon as a child is

identified as a potential candidate for services, DCPS has the duty

to locate that child and complete the evaluation process. Failure

to locate and evaluate a potentially disabled child constitutes a

denial of FAPE.” N.G. v. District of Columbia,

(D.D.C. 2008). DCPS must conduct initial evaluations to

determine a child’s eligibility for special education services

“within 120 days from the date that the student was referred [to

DCPS] for an evaluation or assessment.”

(a).

The parties disagree as to when DCPS learned of the October

2006 evaluation that diagnosed D.L. with learning disabilities and

recommended that he receive special education services. Plaintiffs

argue that DCPS had notice of the evaluation prior to the MDT

12 meeting of March 20, 2009. Pls.’ Mot. 6-7. In support of this

argument, Plaintiffs note that D.L. was referred for the October

2006 evaluation by the MDT at Roots PCS and that DCPS was the LEA

for Roots PCS.

. Plaintiffs also point out that DCPS

promised them at the March 20, 2009, MDT meeting that D.L. would

receive compensatory education from October 2006 if he was found

eligible for special education, indicating that DCPS was aware of

the October 2006 evaluation prior to the 2009 meeting.

; AR

at 61. In addition, Plaintiffs point out that Evan Murray, an LEA

Representative and DCPS Placement Specialist, apologized for DCPS’

delay in following through on the referral process, stating at the

March 2009 MDT meeting that “DCPS will work diligently” to complete

the process initiated in October 2006. Pls.’ Mot. 7; AR at 60.

In response, Defendants assert that Plaintiffs did not inform

DCPS of D.L.’s suspected learning disability until the March 20,

2009 MDT meeting. Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) 12. At

that time, Defendants state that their Child Find obligations were

triggered and that DCPS conducted the evaluation process in a

timely manner.

. Defendants further argue that, even if

Plaintiffs can show that DCPS had notice of the 2006 evaluation

prior to the March 2009 MDT meeting, Plaintiffs are not entitled to

relief because they did not demonstrate any harm resulting to D.L.

from DCPS’ failure to timely follow up on the 2006 evaluation.

13 at 12. Defendants contend that Plaintiffs cannot demonstrate any

harm to D.L. because the MDT took the October 2006 evaluation into

consideration in March 2009 and May 2009 when it developed D.L.’s

SEP and IEP.

.

The Hearing Officer agreed with Defendants, concluding that

Plaintiffs only put DCPS on notice of the October 2006 evaluation

at the March 20, 2009 MDT meeting. AR at 10. The Hearing Officer

then found that DCPS completed and reviewed all evaluations deemed

necessary by May 18, 2009, within the 120-day statutory deadline.

The Hearing Officer further concluded that the MDT which met in

May 2009 found D.L. eligible for special education and developed an

IEP for the student, in accordance with the IDEA’s requirements.

Although the Court must give “due weight” to a Hearing

Officer’s decision, “a decision without reasoned and specific

findings deserves little deference.” Kerkam v. Superintendent, D.C.

Pub. Schs.,

(D.C. Cir. 1991) (internal

quotations omitted). Here, the Hearing Officer found that

“[p]etitioner offered no evidence that DCPS was put on notice of

Dr. Mack’s evaluation prior to the MDT meeting on March 20, 2009.”

AR at 10 (emphasis added). This is plainly untrue.

14 The record discloses that DCPS was the LEA for Roots PCS when

the school referred D.L. for a psycho-educational evaluation in

2006.

; 268. In addition, the March 2009 MDT meeting

notes contain an apology from DCPS to D.L.’s mother for “not

following through on the referral process,” indicating that DCPS

was well aware of D.L.’s suspected learning disability prior to

that meeting. Id. at 60. In fact, at that meeting, DCPS conceded

that “this process began back in 2006.” Id. at 61. Lastly, DCPS

promised compensatory education services for D.L. from 2006 if D.L.

was found to be eligible for special education services, indicating

DCPS’ acknowledgment that the referral process was initiated at the

time of Dr. Mack’s evaluation. Id. The Hearing Officer’s decision

references none of this evidence and fails to explain why the 2006

referral for evaluation did not trigger DCPS’ Child Find

obligations.

Defendants admit that, “the evidence might be argued to

suggest that the finding by the Hearing Officer that DCPS was not

on notice was incorrect,” but argue that “such an arguable error

was inconsequential because Plaintiff failed to demonstrate any

resulting substantive harm to D.L.” Defs.’ Mot. 12. Defendants’

position is unpersuasive. When DCPS finally followed through on its

Child Find obligations, the MDT ordered special education services

15 for D.L. See AR at 251. Meanwhile, D.L. lacked access to the

special education curriculum from 2006 until the MDT developed an

IEP in May 2009, well after the 120-day statutory time period for

carrying out Child Find obligations. See id. at 252-53. Surely,

one cannot seriously argue that deprivation of special education

services for a period of three years has not harmed a child.

Defendants also suggest that DCPS received notice of D.L.’s

suspected learning disability only when D.L.’s mother “physically

presented [DCPS] a copy of the 2006 evaluation” at the March 2009

MDT meeting. Defs.’ Mot. 14. However, DCPS’ Child Find obligations

are triggered “as soon as a child is identified as a potential

candidate for services,” and a parent does not need to request the

LEA to evaluate a child. See N.G.,

. D.L.

was located and identified as a potential special education

candidate in October 2006, triggering DCPS’ Child Find obligations

at that time. Thus, Plaintiffs have shown by a preponderance of the

evidence that the Hearing Officer’s decision was erroneous and that

DCPS denied D.L. a FAPE by delaying determination of D.L.’s special

education eligibility.

C. DCPS’ Development of an Appropriate IEP

Plaintiffs allege that D.L.’s IEP was inappropriate because it

contained (1) no social/emotional goals and objectives; and (2) an

insufficient amount of specialized instruction. Pls.’ Mot. 19.

16 Defendants contend that the IEP affords an appropriate amount and

type of special education services for D.L. Defs.’ Mot. 17.

Under the IDEA, LEAs must develop a detailed IEP for every

child with a disability.

(d)(2)(A). The Supreme

Court has explained that an IEP must be “reasonably calculated to

enable the child to receive educational benefits,” Rowley,

. The IEP must be tailored to enable the child “to achieve

passing marks and advance from grade to grade.”

.

The Hearing Officer found that the IEP was appropriate for

D.L. First, the Hearing Officer noted that Defendants’ copy of the

IEP contained a page missing from Plaintiffs’ copy. AR at 12. This

missing page included social/emotional goals and provided for 30

minutes of weekly instruction focusing on social/emotional

objectives. Id.3 Second, the Hearing Officer found that the amount

of specialized instruction proposed in the IEP (fifteen hours per

week) was appropriate because neither Dr. Mack, who conducted the

initial October 2006 evaluation, nor Mr. Terrence Beason, the

school psychologist, recommended full-time specialized instruction

for D.L.

3 As noted earlier, the Hearing Officer allowed Defendants to submit the missing page of the IEP into evidence over Plaintiffs’ objection. See supra p. 3, note 1.

17 While an IEP under the IDEA must be reasonably calculated to

furnish educational benefits to the child and must be developed

with parental involvement, it does not have to maximize the

potential of a disabled child or include all the wishes of a

child’s parents. See Rowley,

; Kerkam v.

McKenzie,

(D.C. Cir. 1988) (“[P]roof that loving

parents can craft a better program than a state offers does not,

alone, entitle them to prevail under the Act.”). Under the IDEA,

parental concerns are just one factor to be considered by the IEP

team when developing the IEP.

(d)(3)(A)(ii).

In this case, the MDT’s failure to include full-time

specialized instruction in the IEP does not amount to denial of a

FAPE. The record indicates that none of the educational specialists

who evaluated D.L. thought that his learning disabilities were

severe enough to warrant full-time specialized instruction. In the

October 2006 evaluation, Dr. Mack recommended that D.L. receive

specialized instruction only in reading and writing. AR at 274. Mr.

Beason also found that D.L. was facing his greatest academic

difficulty in reading.

. Accordingly, it was appropriate

for the Hearing Officer to conclude that fifteen hours per week of

specialized instruction were “reasonably calculated to enable

[D.L.] to receive educational benefits.” See Rowley,

. The record also supports the Hearing Officer’s conclusion that

18 the missing page of the IEP discussed social/emotional goals. AR

Tr. at 48-52. Thus, Plaintiffs have failed to meet their burden of

showing by a preponderance of the evidence that DCPS violated IDEA

by issuing an inappropriate IEP.

D. DCPS’ Selection of an Appropriate Placement

Plaintiffs assert that Brightwood was an inappropriate

placement for D.L. for two reasons: (1) Brightwood was unable to

implement the IEP; and (2) D.L.’s parent was not permitted to

participate in the MDT’s placement determination. Pls.’ Mot. 10.

Defendants reply that Brightwood can implement the IEP and that Ms.

Long and D.L.’s educational advocate participated in the placement

decision. Defs.’ Mot. 19-21.

The Hearing Officer found that Brightwood was an appropriate

placement. Barbara Looper, the special education coordinator for

DCPS, noted at the May 2009 MDT meeting that “[t]his team will have

to reconvene to discuss change of placement. School is unable to

implement IEP.” AR at 253. At the administrative hearing, however,

Ms. Looper testified that the school would in fact be able to

implement the IEP, and she could not explain why she had said

otherwise at the MDT meeting. AR Tr. at 94-96. The Hearing Officer

credited Ms. Looper’s hearing testimony and decided that Brightwood

was an appropriate placement.

19 Under the IDEA, LEAs must make proper placement decisions

involving parental participation to ensure that a disabled child

has access to a FAPE.

(b)(1). The parent must have

a full, meaningful opportunity to participate in the placement

decision. A.I. ex rel. Iapalucci v. District of Columbia,

(D.D.C. 2005). LEAs must provide a placement for

a disabled child that furnishes a “basic floor of opportunity” and

that allows him to “benefit from special education.” Rowley,

. This consists of “access to specialized

instruction and related services which are individually designed to

provide educational benefit to the handicapped child.”

The record supports the Hearing Officer’s decision. Plaintiffs

have not shown that the parent’s participation in the meetings was

restricted in any way. Ms. Long and the educational advocate

participated in the March 2009 and May 2009 MDT meetings, where

D.L.’s placement at Brightwood was discussed. AR at 45, 249.

Plaintiff’s claim that she was denied an opportunity to fully

participate in the placement decision has no factual support.

First of all, she and D.L.’s educational advocate attended every

MDT meeting for D.L. AR at 249. Second, Plaintiff never claimed

she was denied an opportunity to “participate” in the placement

decision in her due process complaint. AR at 110-111. Rather,

20 Plaintiff claimed that the placement itself was inappropriate.

This is the claim that was litigated below, not whether she was

denied an opportunity to participate. As such, Plaintiff cannot

now raise issues that were not litigated below.

(i)(2); Cox v. Jenkins,

(D.C. Cir. 1989);

Shaw v. District of Columbia,

(D.D.C. 2002)

(concluding that, under IDEA’s judicial review provisions, a

district court cannot address an issue that was not first presented

to the hearing officer).

In addition, the Hearing Officer considered testimony from

both parties and credited Ms. Looper’s testimony regarding

Brightwood’s capacity to implement the IEP. While the court is free

to consider additional evidence submitted by the parties, it must

give “‘due weight’ to the administrative proceedings and afford

some deference to the expertise of the hearing officer and school

officials responsible for the child's education.” Lyons,

(quoting Rowley,

); see also Shaw,

. Plaintiffs have voiced disagreement with the

Hearing Officer’s decision to credit Ms. Looper’s testimony, but

they have not shown by a preponderance of the evidence that

Brightwood is incapable of providing fifteen hours per week of

21 specialized instruction for D.L. and administering the other

services included in the IEP.4 See Pls.’ Mot. 10-11.

E. DCPS’ Evaluations of D.L.

Plaintiffs contend that DCPS failed to evaluate D.L. in all

suspected areas of disability, thereby depriving D.L. of his right

to receive a FAPE under the IDEA, since no FAPE can be provided

without the appropriate evaluations. Pls.’ Mot. 8. Specifically,

Plaintiffs argue that DCPS should have formulated a BIP, which

would have required completion of an FBA.5 Id. at 7.

4 The hearing transcript indicates that Brightwood has resource rooms and other features of an inclusion setting to implement the IEP. AR Tr. at 95. In addition, DCPS asserted at the hearing that “the level of staffing at Brightwood will be significantly increased for the 2009-2010 [school year] and that it will be able to meet Petitioner’s educational needs.” AR at 5. 5 Plaintiffs also argue that the Hearing Officer was incorrect in determining that DCPS’ failure to conduct an OT evaluation did not constitute a violation of the IDEA. Pls.’ Mot. 7. Defendants now state that Plaintiffs’ “request for an occupational therapy (OT) evaluation is moot because it was ordered by the MDT.” Defs.’ Reply 5.

If the OT evaluation has not been completed, it should be. Although the March 2009 MDT meeting notes reflect that D.L.’s mother initially agreed with DCPS that an OT evaluation was unnecessary, Ms. Long’s attorney sent a follow up letter to DCPS that put Defendants on notice that she in fact wanted D.L. to receive an OT evaluation. AR at 48, 228. Moreover, Plaintiffs have shown that an OT evaluation was necessary because of D.L.’s “below average” performance on the Beery Developmental Test of Visual Motor Integration (“Beery Test”). AR Tr. at 23. Dr. Mack’s 2006 evaluation references the Beery Test results and recommends an OT evaluation to assess D.L.’s visual-motor integration skills. AR at 268, 274. The more recent May 12, 2009 comprehensive psychological (continued...)

22 The Hearing Officer determined that the educational advocate,

Lori Rodriguez, did not request a BIP/FBA on Plaintiffs’ behalf and

that Plaintiffs had not presented evidence that behavioral problems

during the 2008-2009 school year had an adverse impact on D.L.’s

academic performance. AR at 11. However, Plaintiffs insist that Ms.

Rodriguez did request a BIP/FBA. Pls.’ Mot. 7. Indeed, Defendants

concede that a BIP/FBA was requested but claim that the request

came too late, after the May 2009 MDT meeting. Defs.’ Mot. 16;

Defs.’ Reply 5. Plaintiffs argue that a BIP/FBA was necessary

because the March 2009 and May 2009 MDT meeting notes reflect that

D.L.’s behavior problems were affecting his academic performance.

See Pls.’ Mot. 7; AR at 60. They further assert that DCPS knew of

D.L.’s behavioral issues because it had been providing D.L. thirty

minutes of weekly counseling to address anger management and coping

problems. AR at 46, 48.

Defendants claim that D.L.’s behavioral issues were discussed

at length during the MDT meetings before the BIP/FBA was rejected.

Id. at 17. Defendants further argue that it is only the personal

opinion of Plaintiffs and Ms. Rodriguez that the BIP/FBA should be

administered. Id.

(...continued) evaluation also mentions the Beery Test results. Id. at 70. Thus, Plaintiffs have shown by a preponderance of the evidence that the Hearing Officer was incorrect in concluding that there was no basis for an OT evaluation.

23 The IDEA does not require LEAs to administer every test

requested by a parent or educational advocate. Rather, to ensure

that a child with a disability receives a FAPE, an LEA must use “a

variety of assessment tools and strategies to gather relevant

functional, developmental, and academic information.” See

(b)(2)(A). In the case of a child whose behavior impedes his

or her learning or that of others, the IEP team must consider “when

appropriate, strategies, including positive behavioral

interventions, strategies, and supports to address that behavior.”

Thomas v. District of Columbia,

(D.D.C.

2005);

(d)(3)(B)(I).

The failure to complete all necessary evaluations results in

a substantive denial of FAPE which results in harm to the disabled

child. “[I]n the absence of necessary and appropriate evaluations

the district cannot develop a program that is tailored to the

student’s unique needs and reasonably calculated to enable him to

receive educational benefits. The evaluation information is needed

in order to fashion a legally compliant and educationally

beneficial program. Without this data the district court cannot

properly educate the student and the hearing officer cannot do

equity. As such, an evaluation’s primary role is to contribute to

the development of a sound IEP.” Sitka Borough Educational Agency,

44 IDELR 268 (July 2005).

24 Plaintiffs have met their burden of proof with regard to the

BIP/FBA. In her initial evaluation of D.L., Dr. Mack recommended a

BIP/FBA. AR at 274. As noted earlier, the record also discloses

that D.L.’s behavior problems seriously affected his academic

performance during the 2008-2009 school year. D.L.’s teacher, a

member of the MDT, commented at the March 2009 meeting that

“[D.L.’s] behavior impacts his function in the classroom.”

. Subsequently, at the May 2009 MDT meeting, various teachers

remarked that D.L.’s behavior “has declined” and that D.L. was

involved in several fights at school.

.

Finally, DCPS’ provision of counseling to D.L. before his

eligibility for special education services was determined indicates

that DCPS believed that D.L.’s behavioral issues were impeding his

learning ability. Indeed, Defendants appeared to concede at the

hearing that a BIP/FBA was warranted: “DCPS is more than willing to

. . . ensure that an FBA is put into place for the student.” AR Tr.

at 14. In light of D.L.’s obvious behavioral issues, it is

important to note that “the IDEA . . . recognizes that the quality

of a child's education is inextricably linked to that child's

behavior,” and “[an] FBA is essential to addressing a child's

behavioral difficulties, and, as such, it plays an integral role in

the development of an IEP.” Harris v. District of Columbia,

Supp. 2d 63, 68 (D.D.C. 2008). DCPS’ failure to complete a BIP/FBA

constitutes denial of a FAPE.

F. D.L.’s Entitlement to Compensatory Education

Plaintiffs contend that D.L. is entitled to receive

compensatory education services from October 2006, when D.L.’s

initial evaluation was completed, until May 2009, when his IEP was

developed. Pls.’ Mot. 11. Plaintiffs contend that D.L.’s IQ dropped

by four points during this three year period and, as discussed,

supra, that he experienced academic and behavioral difficulties due

to lack of a special education program. Id. at 12. Plaintiffs also

argue that DCPS promised them that D.L. would receive compensatory

education from 2006 at the March MDT meeting. Id. Defendants reply

that Plaintiffs have not shown what harm D.L. suffered from DCPS’

alleged failure to act in 2006 and have not shown what services are

necessary to compensate for any purported harm. Defs.’ Mot. 22.

Compensatory education is an equitable remedy for the denial

of a FAPE to a child with a learning disability. Reid,

. Under the theory of compensatory education, “courts and

hearing officers may award educational services . . . to be

provided prospectively to compensate for a past deficient program.”

. (internal quotations omitted). Designing a compensatory

education remedy requires “a fact-specific exercise of discretion

by either the district court or a hearing officer.” Reid,

; see also Henry v. District of Columbia, ---F. Supp. 2d---,

(D.D.C. Nov. 12, 2010). In either case, “the

inquiry must be fact-specific and, to accomplish IDEA's purposes,

the ultimate award must be reasonably calculated to provide the

educational benefits that likely would have accrued from special

education services the school district should have supplied in the

first place.” Reid,

. To aid the court or hearing

officer’s fact-specific inquiry, “the parties must have some

opportunity to present evidence regarding [the student’s] specific

educational deficits resulting from his loss of FAPE and the

specific compensatory measures needed to best correct those

deficits.”

. DCPS may be required to “offer proof that

the placement compensated for prior FAPE denials in addition to

providing some benefit going forward.”

.

This Court has determined that D.L. was denied a FAPE due to

DCPS’ failure to comply with Child Find obligations and conduct

necessary evaluations. Therefore, the Court will remand the case to

a Hearing Officer to craft an appropriate compensatory education

remedy. See Henry, ---F. Supp. 2d---,

.

IV. Conclusion

For the reasons set forth above, Plaintiffs’ Motion for

Summary Judgment is granted in part and denied in part and

Defendants’ Motion for Summary Judgment is granted in part and

27 denied in part. This case is remanded to the administrative hearing

officer to craft an appropriate compensatory education remedy and

order appropriate tests, including an FBA, for D.L. An Order shall

accompany this Memorandum Opinion.

/s/ March 23, 2011 Gladys Kessler United States District Judge

Copies to: Attorneys on record via ECF

28