UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) GWENDOLYN WHITE, ) ) Plaintiff, ) ) v. ) Case No. 20-cv-3821 (APM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Gwendolyn White brings this action under the Individuals with Disabilities

Education Act (“IDEA”). She seeks review of a Hearing Officer’s Determination that she believes

did not fully redress Defendant District of Columbia’s alleged violations of her son’s right to a

free appropriate public education (“FAPE”). The Hearing Officer found in favor of Plaintiff as to

some claims and granted compensatory education as relief, but rejected other alleged violations.

Now before the court are the parties’ cross-motions for summary judgment on all claims.

For the reasons that follow, the court grants in part and denies in part both the District’s motion

and Plaintiff’s cross-motion and remands the case to the Hearing Officer for further proceedings

consistent with this memorandum opinion. II. BACKGROUND

A. Factual Background

1. K.W.’s Individualized Education Programs

Plaintiff’s son K.W. was (at the time of filing in this court) a 15-year-old resident of the

District of Columbia who attended District of Columbia Public Schools (“DCPS”) from 2017 to

2020. Pl.’s Cross-Mot. for Summ. J. & Opp’n to Def.’s Mot. for Summ. J., ECF No. 34

[hereinafter Pl.’s Cross-Mot.], ¶¶ 1–2; Def.’s Mot. for Summ. J., ECF No. 31 [hereinafter Def.’s

Mot.], at 4. 1

The first individualized education program (“IEP”) meeting for K.W. at issue here took

place on October 20, 2017. Def.’s Mot. at 2. His IEP for that year recommended that K.W. receive

“five hours of specialized instruction per week in reading and . . . mathematics,” each “delivered

outside general education,” along with “120 minutes per month of occupational therapy.” Id.

Plaintiff asserts that, in addition to the October 2017 IEP meeting, the District also completed a

routine reevaluation of K.W. in accordance with the IDEA’s “triennial re-evaluation requirement”

in December 2017. Pl.’s Cross-Mot ¶ 4. Plaintiff alleges, however, that the District did not

conduct, as part of this reevaluation, (1) “a speech and language assessment”; (2) “a cognitive

assessment” (as part of the standard psychological assessment); (3) “a vocational II assessment”;

or (4) “a fine motor assessment” (as part of the standard occupational-therapy evaluation). Id.

¶¶ 5–8.

K.W. had his next IEP meeting on October 16, 2018. Id. ¶ 13; Def.’s Mot. at 2. K.W.’s

additional instruction in reading and math remained the same, but the new IEP added “preferential

1 Plaintiff and Defendant both filed their cross-motion, statements of material fact, and memorandum of law within a single PDF. The court will refer to the internal pagination for each of those documents except for facts contained in the fact section of Plaintiff’s memorandum, to which the court will refer by paragraph number. 2 seating, [classroom] location with minimal distractions, and extended time, among other

accommodations.” Def.’s Mot. at 2. However, the occupational-therapy allotment was reduced

by 50% to 60 minutes per month. Id.; Pl.’s Cross-Mot. ¶ 13. Plaintiff asserts that of this allotted

time, the District failed to provide 345 minutes of occupational therapy between April 2019 and

October 2019. Pl.’s Cross-Mot. ¶ 14. Over eleven months, Plaintiff alleges that K.W. was

deprived of over half of his IEP benefit. Id. ¶¶ 15–16. Further, she contends that the District did

not conduct any of the assessments missed in December 2017 during the 2018–2019 school year.

Id. ¶¶ 9–12.

K.W.’s next IEP meeting was held on October 15, 2019. Def.’s Mot. at 2; Pl.’s Cross-Mot.

¶ 21; Admin. Record [hereinafter A.R.], ECF No. 24-1, at 456. 2 Following this meeting, DCPS

reduced K.W.’s occupational-therapy allotment to a half-hour per month. Def.’s Mot. at 3; Pl.’s

Cross-Mot. ¶ 21. The 2019 IEP listed occupational therapy as a “Consultation Service[],” as

opposed to a “Related Service[]” “[o]utside General Education” as in prior years. Compare A.R.

464 (October 2019 IEP) with A.R. 436 (October 2018 IEP), 406 (October 2017 IEP). Further, the

District directed his specialized instruction in math and reading to be delivered inside a general

education setting. A.R. 464. Plaintiff alleges that her son was again provided only about half of

his occupational-therapy allotment through May 2020. Pl.’s Cross-Mot. ¶ 23.

The District, in the wake of the COVID-19 global pandemic, began providing online virtual

learning to all students in March 2020. Id. ¶¶ 24–25. K.W. did not have computer or internet

access for the remainder of the school year, so he could not receive both his standard and

2 The Administrative Record for the proceeding below can be found at ECF Nos. 19 through 30, including as exhibits. The court will cite all references to the Administrative Record as “A.R. at [page],” except for the Hearing Officer Determination (HOD), ECF No. 19-2, which the court will cite as “HOD at [page],” reflecting the internal pagination of the document. 3 individualized education for April and May 2020. Id. ¶¶ 27–29. K.W. had an off-cycle IEP

meeting on May 26, 2020, to address concerns about his access to education during the pandemic

and to address his program, generally. A.R. 479; HOD at 13. His new IEP increased K.W.’s

access to specialized instruction in reading and math, providing 10 hours of instruction in each

subject to be delivered both inside and outside of general education. A.R. 490. It also continued

the October 2019 IEP’s allotment of thirty minutes per month of occupational therapy as a

“Consultation Service[].” Id. This IEP made no other changes and did not address the underlying

access problem.

2. Administrative Proceedings

Plaintiff filed an administrative due process complaint with DCPS in July 2020. HOD at

1, 15. The complaint advanced various challenges to the formation and implementation of K.W.’s

IEPs. Id. at 3–4. As part of the proceedings, on September 1, 2020, the assigned Hearing Officer

ordered the District to disclose all relevant documents relating to K.W.’s education in advance of

an administrative hearing later that month. Pl.’s Cross-Mot. ¶ 30. Plaintiff claims to have received

only some of the documents in advance of the hearing. Id. ¶¶ 31–34. The District attributes this

shortfall to continued remote work by DCPS officials and limited on-site access due to the global

pandemic. Id. ¶ 34 (citing Pl.’s Cross-Mot., Ex. 12, ECF No. 34-1 [hereinafter Pl.’s Exs.], at 95).

The hearing was held on September 15 and 16, 2020. Def.’s Mot. at 3.

The Hearing Officer issued his Determination on September 29, 2020. As to claims

concerning the 2017 IEP, the Hearing Officer found those claims time-barred by the IDEA’s two-

year limitations period. HOD at 15–16. As to the 2018, 2019, and 2020 IEPs, the Hearing Officer

found that DCPS had denied K.W. a FAPE in part. Id. at 17–26. As a remedy, the Hearing Officer

ordered a “compensatory education evaluation” for K.W. Id. at 34. That evaluation resulted in

4 tutoring services of 462 hours. Pl.’s Ex. 15 at 101. Since that time, Plaintiff contends that

Defendant has “steadfastly refused to issue an authorization letter that complies with the

September 29, 2020 HOD.” Pl.’s Cross-Mot. ¶ 56.

B. Procedural Background

Plaintiff filed this action on December 27, 2020, against the District. See Compl. for Inj.

& Decl. Relief, ECF No. 1. Plaintiff eventually moved for leave to file an Amended Complaint

on March 29, 2021. See Pl.’s Cross-Mot. for Leave to File Am. Compl. & Consent Mot. to Extend

Deadline to File Scheduled Joint Status Report, ECF No. 5; see also Am. Compl. for Inj. & Decl.

Relief, ECF No. 7 [hereinafter Am. Compl.]. The Amended Complaint added two DCPS officials

as Defendants: Alecia Abrams and Kerri Larkin. Am. Compl. at 3. The court accepted the

Amended Complaint as the operative pleading. See Order, ECF No. 6.

On April 28, 2021, the District filed an Answer to all claims except the breach-of-contract

claim. As to that claim, the District moved to dismiss on behalf of all Defendants, including

Abrams and Larkin. Def. District of Columbia’s Answer to Am. Compl., ECF No. 10; Defs.’ Mot.

to Dismiss Am. Compl., ECF No. 11 [hereinafter Defs.’ MTD]. The court granted the motion with

respect to the individual defendants but denied the motion with respect to the District, leaving it

as the only Defendant remaining. White v. District of Columbia, No. 20-cv-3821,

, at *2 (D.D.C. Dec. 23, 2021).

As the Amended Complaint now stands, Plaintiff asserts three violations of the IDEA:

(1) a failure to comprehensively evaluate her son in 2017 (Count One); (2) a failure to implement

his IEP for the 2017–2018, 2018–2019, and 2019–2020 school years (Count Two); and (3) a failure

to develop an appropriate IEP for the 2017–2018, 2018–2019, and 2019–2020 school years (Count

Three). Plaintiff also invokes

to remedy the District’s failure to produce K.W.’s

5 educational records as ordered by the Hearing Officer, as well as its alleged failure to comply with

the Hearing Officer’s order for compensatory education services (Count Four). Finally, she asserts

a breach-of-contract claim premised on the District’s alleged failure to honor an authorization it

issued for certain independent evaluations of K.W. (Count Five).

After filing the administrative record for the case, the District moved for summary

judgment on all claims. Def.’s Mot. Plaintiff responded with an opposition and her own motion

for summary judgment. Pl.’s Cross-Mot.

III. LEGAL STANDARD

A parent dissatisfied with the outcome of an IDEA due process hearing may appeal that

decision to a federal district court.

(i)(2)(A). The reviewing court “(i) shall

receive the records of the administrative proceedings; (ii) shall hear additional evidence at the

request of a party; and, (iii) basing its decision on the preponderance of the evidence, shall grant

such relief as the court determines is appropriate.”

§ 1415(i)(2)(C). The party challenging the

hearing officer’s ruling bears the burden of “persuading the court that the hearing officer was

wrong.” Kerkam v. McKenzie,

(D.C. Cir. 1988). Although the court owes some

deference to the hearing officer’s decision, “a hearing decision without reasoned and specific

findings deserves little deference.” Reid ex rel. Reid v. District of Columbia,

(D.C. Cir. 2005) (internal quotation marks omitted). When neither party presents additional

evidence to the district court, “a motion for summary judgment operates as a motion for judgment

based on the evidence comprising the record.” S.S. ex rel. Shank v. Howard Rd. Acad.,

(D.D.C. 2008) (internal quotation marks omitted). If the administrative record

lacks “pertinent findings” and neither party enters additional evidence, then the “court may

6 determine that the appropriate relief is a remand to the hearing officer for further proceedings.”

Reid,

(internal quotation marks omitted).

IV. DISCUSSION

A. Claim Relating to the 2017 Triennial Reevaluation

In her administrative due process complaint, Plaintiff challenged the adequacy of DCPS’s

triennial reevaluation of K.W. conducted in November and December 2017. A.R. at 81; Pl.’s

Cross-Mot. at 4. Plaintiff asserted that DCPS should have conducted a more thorough and

comprehensive set of diagnostic assessments than it did. Pl.’s Cross-Mot. at 4, 14–15. The

Hearing Officer found that claim to be time-barred under the IDEA’s two-year limitations period.

HOD at 26–27;

(f)(3)(C) (stating that a parent “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”). Plaintiff concedes that “the District’s

obligation to evaluate K.W. started outside of the two-year [statute] of limitations.” Pl.’s Cross-

Mot. at 11. She nevertheless contends that, because “the IDEA conferred upon the District an

ongoing obligation to evaluate K.W. in all areas of suspected disability,” under the “continuing

violations doctrine” “the District’s obligation to evaluate continued into the limitations period and

all the way to the date of the administrative due process hearing.”

Her challenge to the 2017

reevaluation, she insists, is therefore timely.

The court disagrees.

The continuing-violations doctrine is an exception to a statute’s general rule of accrual.

See Earle v. District of Columbia,

(D.C. Cir. 2012). The D.C. Circuit has

recognized that the doctrine might apply in two circumstances. The first is when the conduct is

such that its character as a violation does not become apparent until it is repeated within the

limitations period. See

In other words, the doctrine applies “if the fact of the violation becomes

7 apparent only by dint of the cumulative effect of repeated conduct.”

The classic example of

this circumstance is a Title VII hostile work environment claim. See

(citing Nat’l R.R.

Passenger Corp. v. Morgan,

, 115–16 (2002)). Plaintiff does not contend that the

cumulative-effect theory applies to her IDEA claim. She relies instead on the second application

of the continuing-violations doctrine: “if the text of the pertinent law imposes a continuing

obligation to act or refrain from acting.” Id. at 307. In that circumstance, “a party can continue to

violate [a continuing obligation to act] until the obligation is satisfied and the statute of limitations

will not begin to run until it does.” Id. (internal quotation marks and citation omitted). “Whether

the obligation is continuing is a question of statutory construction.” Id.

Plaintiff has cited no case, from this Circuit or anywhere else, holding that the IDEA

imposes a continuing obligation to reevaluate students in all areas of suspected disability. That is

likely because the statutory text does not support such a continuing obligation. The IDEA provides

that a relevant state agency is required to conduct a “full and individual initial evaluation” of a

student at the request of the parent or the relevant state agency before providing special education.

See

(a)(1)(A)–(B). Such initial evaluation shall consist of procedures to

determine “whether a child is a child with a disability” and “the educational needs of such child.”

§ 1414(a)(1)(C)(i)(I)–(II). If special education is deemed warranted, the IDEA imposes an

obligation to conduct “reevaluations.” Id. § 1414(a)(2). Such reevaluations shall be conducted “if

the local education agency determines that the educational or related services needs, including

improved academic achievement and functional performance, of the child warrant a revaluation,”

or “if the child’s parents or teacher requests a reevaluation.” Id. §§ 1414(a)(2)(A)(i)–(ii). The

IDEA further provides that a reevaluation shall occur no more than once annually but must

minimally be conducted every three years. Id. § 1414(a)(2)(B)(i)–(ii). (The parent and local

8 educational agency (“LEA”) can stipulate to reevaluations either more or less frequently than the

statute requires. Id. § 1414(a)(2)(B)(i)–(ii)). Thus, the IDEA establishes a timetable for

reevaluations that is pegged to the initial evaluation and the needs of the child. It does not impose

an ongoing obligation to ensure that already-performed reevaluations were adequate. Nor does it

impose an obligation to initiate a reevaluation any more often than annually, absent an agreement

with the parent. The IDEA’s text therefore does not support applying the continuing-violations

doctrine to a claim challenging the adequacy of a reevaluation.

Plaintiff cites as support for her position a recent decision from the Eighth Circuit,

Independent School District No. 283 v. E.M.D.H.,

, 1083–84 (8th Cir. 2020), but

that case is inapposite. Pl.’s Cross-Mot. at 13. In that case, the Eighth Circuit held that the

plaintiff’s claim that the school district had violated its “child-find” obligation was not time-barred,

even if the claim began to accrue outside the two-year statutory window. Indep. Sch. Dist. No.

283, 906 F.3d at 1083. Under what is known as the “child-find” obligation, the IDEA requires

LEAs to “identif[y], locate[], and evaluate[]” “children with disabilities . . . who are in need of

special education and related services.”

(a)(3)(A). The court reasoned that

violation of the child-find obligation “was not a single event like a decision to suspend or expel a

student; instead the violation was repeated well into the limitations period.” Indep. Sch. Dist. No.

283, 906 F.3d at 1083. “Any claim of a breach falling outside of the IDEA’s two-year statute of

limitations would be untimely,” the court held, but “because of the District’s continued violation

of its child-find duty, at least some of the Student’s claims of breach of that duty accrued within

the applicable period of limitation.” Id. at 1083–84.

The reevaluation requirement at issue in this case is different, however. As the Eighth

Circuit noted, the child-find obligation is not tied to any event or bounded by any time guideline.

9 See

(a)(3)(A). A reevaluation, by contrast, is a “single event,” whose timing is

defined by the IDEA. The statute imposes no ongoing obligation to continually assess the

sufficiency of a reevaluation. The continuing-obligation doctrine therefore does not apply here,

and Plaintiff’s challenge to the 2017 reevaluation process is untimely. The court therefore will

enter judgment in favor of the District as to Count One.

B. Plaintiff’s Failure-to-Implement Claims

With respect to Count Two, Plaintiff contests the Hearing Officer’s judgment with respect

to DCPS’s implementation of the IEPs for the 2018–2019 and 2019–2020 school years. 3

1. 2018–2019 School Year

The IEP prepared in October 2018 called for K.W. to receive one hour of occupational

therapy per month. Pl.’s Cross-Mot. ¶ 16; see also HOD at 28 (“[T]he Student should have

received 120 minutes of occupational therapy in September, 2018, then sixty minutes per month

of occupational therapy for the remainder of the school year.”). Plaintiff contends that, for the

2018-2019 IEP period, the District failed to provide K.W. with any occupational therapy for the

months of April 2019, June 2019, August 2019, September 2019, and October 2019, for a total of

approximately 5 hours and 45 minutes of missed occupational therapy. Pl.’s Cross-Mot. at 23.

The Hearing Officer found otherwise. He concluded, based on K.W.’s service tracker, that K.W.

“was offered his/her mandate of occupational therapy services during every month of the school

year except in November 2018 (when s/he did not receive fifteen minutes of services).” HOD at

28. To the extent Plaintiff had argued that K.W. “missed services because of absences and that

3 Count Two also appears to bring a failure-to-implement claim as to the IEP for the 2017–2018 school year. See Am. Compl. ¶¶ 32–33. Plaintiff, however, makes no argument in support of such claim in her cross-motion. See Pl.’s Cross-Mot. at 22–30 (advancing arguments for failure to implement only the 2018–2019 and 2019–2020 IEPs). The court therefore does not address it. But even if Plaintiff had advanced such a claim, for the reasons already discussed, it would be time barred. 10 such services should have been made up,” the Hearing Officer faulted Plaintiff for not “point[ing]

to any authority to support that position.”

at 28–29.

The court cannot agree with the Hearing Officer’s rationale. “An IEP is not a form

document. It is constructed only after careful consideration of the child’s present levels of

achievement, disability, and potential for growth.” Endrew F. ex rel. Joseph F. v. Douglas Cnty.

Sch. Dist. RE-1,

(2017). Once a student’s IEP is developed, the school district

“must ensure that . . . special education and related services are made available to the child in

accordance with the child’s IEP.”

(c)(2). Thus, it is not enough merely to

“offer” the services provided by an IEP; the school district must “ensure” the child actually

receives them. Here, the service tracker shows that K.W. received no occupational therapy for

five months, not because K.W. was absent from school, but because DCPS simply dropped the

ball. K.W. received no services in April 2019, because on his scheduled occupational-therapy day,

April 23, 2019, he was completing a standardized test. A.R. at 449. Similarly, in June 2019, K.W.

received no occupational-therapy services because the day on which the therapy was scheduled,

June 12, 2019, he was “unavailable due to being on a fieldtrip.” Id. at 451. In August 2019, the

therapist had “difficulty locating [K.W.],” and indicated they would “confirm his schedule and

make up this time.” Id. at 452. And, in September and October 2019, K.W. apparently received

no services for no reason at all, even though the applicable IEP did not expire until October 15,

2019. Id. at 453–54. This is not a record of “ensuring” that K.W. received the occupational-

therapy hours to which he was entitled; nor is it a “de minimis” failure to implement an IEP. See

Wilson v. District of Columbia,

(D.D.C. 2011). Accordingly, the court

will enter judgment in favor of Plaintiff as to this aspect of her failure-to-implement claim.

11 2. 2019–2020 School Year

The IEP prepared in October 2019 reduced K.W.’s occupational-therapy hours to

30 minutes per month. A.R. at 464. Plaintiff contends that, during this IEP period, the District

failed to provide K.W. with any occupational therapy for the months of January 2020, February

2020, April 2020, and May 2020, for a total of approximately two hours of missed occupational

therapy. Pl.’s Cross-Mot. at 23–24. The Hearing Officer found no violation.

Based on K.W.’s

service tracker, he concluded that K.W. did not receive 90 minutes of “occupational therapy

consultation” and, because “the ‘goal and import’ of the occupational ‘consultation’ service is not

entirely clear from the record,” the Hearing Officer held that Plaintiff had not substantiated this

aspect of her failure-to-implement claim. HOD at 29.

Again, the court does not follow the Hearing Officer’s thinking. First, although true that

the October 2019 IEP changed occupational therapy from a “Related Service[]” to a

“Consultation[] Service,” the IEP does not indicate that the provision of such consultation was

optional. A.R. at 464. The October 2019 IEP indicates that K.W. would be moved to occupational

therapy “consult” “as [he] has the motor skills necessary to produce small, neat, legible

handwriting. Therapist will continue to monitor his ability to complete his written work for his

classes.” A.R. 463. Such “monitoring” apparently involved direct work with a therapist. For

example, in March 2020, K.W. participated in 60 minutes of “copying activity” with the therapist.

A.R. 477. That was the only month K.W. received occupational services of any kind during the

first six months of 2020. Second, in calculating the total hours provided, the Hearing Officer

credited 30 minutes that K.W. received in August 2019, even though that time was under the prior

year’s IEP. All told, K.W. received 120 of the 210 minutes (57%) of occupational therapy services

he was supposed to receive under the October 2019 IEP.

at 473–76. This failure to deliver

12 was not de minimis. See Beckwith v. District of Columbia,

(D.D.C. 2016)

(concluding that shortfall in IEP services that was less than “the 33% gap that was held to be

material” in an earlier Fourth Circuit case was not minimal) (citing Sumter Cnty. Sch. Dist. 17 v.

Heffernan,

(4th Cir. 2011))).

Plaintiff raises an additional failure-to-implement challenge for the 2019–2020 school

year. She asserts that DCPS failed to provide K.W. with specialized instruction in April and May

2019. Pl.’s Cross-Mot. at 24. These months required remote learning due to school closures

resulting from the COVID-19 pandemic. The Hearing Officer found that K.W. could not access

the specialized instruction during these months because he “could not access a computer or a ‘hot

spot’ in order to access the services that were offered.” HOD at 29. He found no denial of FAPE

during those months because “Petitioner did not point to any authority suggesting that a school

district has a legal obligation to provide students with laptops or hotspots during the COVID-19

pandemic.”

The court disagrees. The goal of the IDEA is to provide a “free appropriate public

education to all children with disabilities.”

(a)(1)(A) (emphasis added). An

appropriate “free public education” means special education and related services “provided at

public expense” and “without charge” to the child’s parent. Bd. of Educ. of Henrick Hudson Cent.

Sch. Dist. v. Rowley,

(1982). The IDEA contemplates that “special education”

services may need to be provided “at no cost to parents,” including “in the home.”

(29)(A). The IDEA contains no exception that would allow suspending special education

services because a global pandemic forced schools online. The court is well aware that DCPS

made computers and other technology available to at least some children who needed it during the

13 pandemic. K.W.’s specialized instruction should not have been suspended because his family did

not have the means to acquire the requisite technology.

Accordingly, the court enters judgment in favor of Plaintiff with respect to his failure-to-

implement claim as to the 2019–2020 school year.

C. Plaintiff’s Failure-to-Develop Claims

Next, in Count Three, Plaintiff challenges the sufficiency of the IEPs that DCPS developed

for K.W. on October 16, 2018, October 15, 2019, and May 26, 2020. As to each of the IEPs, the

Hearing Officer found partially in favor of Plaintiff. For instance, the Hearing Officer found that

the October 2018 and October 2019 IEPs failed to provide K.W. with adequate specialized

instruction. HOD at 18, 21–22, 24. He also held that the October 2019 and May 2020 IEPs were

insufficient because they did not provide K.W. with extended-school-year services for the summer

of 2020. Id. at 24, 26. But the Hearing Officer found against Plaintiff as to other aspects of this

claim. For instance, as to all three IEPs, the Hearing Officer rejected the contention that the IEPs

failed to establish sufficient and measurable baselines and goals for K.W. Id. at 18–19, 22–23,

25–26. He also declined to find that the IEPs’ occupational-therapy hours were inadequate for

both school years. Id. at 19–20, 23–24.

Plaintiff’s challenges to these conclusions is odd. She does not squarely address the

Hearing Officer’s stated rationale for the actual rulings he made. Instead, she says three times,

once for each contested IEP, that Ms. Coleman, Plaintiff’s expert in special education, “provide[d]

uncontroverted expert testimony that the goals and baselines prescribed for reading, math, and

written expression were insufficient and/or immeasurable, and that K.W. should have been

prescribed goals and services for” either extended-school-year services or transition services. Pl.’s

Cross-Mot. at 31–32. She does the same with respect to occupational therapy hours. She repeats

14 three times that her expert “testified that the goals, baselines and service hours for occupational

therapy were insufficient and/or immeasurable.” Id.

The court does not know what to make of these statements. First, it is not clear whether

Plaintiff is challenging the failure to consider the expert testimony or an unfounded rejection of

her experts’ opinions. Second, the Hearing Officer rejected Plaintiff’s expert’s underlying

contention that IEPs require baseline setting, as well as her opinion that K.W.’s IEPs lacked

measurable goals. HOD at 18 (“However, there is no requirement for IEP goals to contain

‘baselines’ in the IDEA.”); id. at 19 (“While courts do require that IEP goals be measurable, a

review of the goals in this case reveals that they were in fact measurable.”); id. at 22 (holding that

the October 2018 and 2019 IEPs contained “measurable” goals); id. at 23 (finding that the October

2019 IEP’s transition goals were appropriate); id. at 25 (stating again that “there is no requirement

for goals to have ‘baselines’”). Plaintiff’s cross-motion addresses none of these legal

determinations or factual findings. And, third, as to occupational therapy, the Hearing Officer

found another witness more convincing than Plaintiff’s expert. Id. at 20, 24 (crediting the

testimony of “Witness F” over Plaintiff’s occupational therapy expert). Plaintiff’s cross-motion

nowhere tells the court why that weighing of the evidence was incorrect.

In short, the court finds Plaintiff’s arguments with respect to her failure-to-develop claim

lacking in particulars. The court is not required to guess at what errors Plaintiff ascribes to the

Hearing Officer’s determinations. Accordingly, the court will enter summary judgment in favor

of Defendant as to Plaintiff’s failure-to-develop claim.

C. Failure to Implement/Comply with Administrative Orders

In Count Four, Plaintiff invokes § 1983 to enforce two administrative orders. First, the

Hearing Officer ordered DCPS to disclose K.W.’s education records in advance of the

15 administrative hearing, but Plaintiff asserts not all records were produced. Second, the Hearing

Officer ordered DCPS to fund a compensatory-education evaluation; that evaluation resulted in

DCPS authorizing K.W. to receive 462 total hours of independent tutoring services. DCPS placed

an expiration date on the use of those hours (December 31, 2024), see Pl.’s Cross-Mot., Ex. 15 at

101. Plaintiff asserts that DCPS’s imposition of an expiration date is inconsistent with the Hearing

Officer’s order for a compensatory-education evaluation, which placed no time limit on K.W.’s

use of any compensatory education. Pl.’s Cross-Mot. at 35. Defendant responds that § 1983 is an

improper vehicle to enforce compliance with the IDEA and that, in any event, it has not violated

any administrative order. Def.’s Opp’n to Pl.’s Cross-Mot. & Reply, ECF No. 37, at 10–12.

Whether § 1983 can be used to enforce a favorable IDEA administrative decision remains

an open question in this Circuit. See B.D. v. District of Columbia,

(D.C. Cir.

2016). The majority of circuit courts have rejected this theory. See Def.’s Mot. at 12 (collecting

cases). And this court rejected its use when dismissing the individual defendants from this action.

White,

, at *1 (holding, in the alternative, that Plaintiff had failed to state a

viable § 1983 action because the statute cannot be used to compel compliance with the IDEA).

The court need not reach a firm conclusion on this thorny legal question at this stage. As

discussed below, the court will remand this matter to the Hearing Officer to tailor an appropriate

order for compensatory education. On remand, the Hearing Officer can determine whether to

enforce his prior records-production order. And he can clarify whether or not he intended for there

to be an expiration date on K.W.’s use of compensatory-education benefits.

D. Breach-of-Contract Claim

Finally, Plaintiff brings a breach-of-contract claim. As framed in the complaint, that claim

avers that DCPS “failed to honor the authorization letter it issued on September 4, 2020,” which

16 approved various independent evaluations of K.W. Am. Compl. ¶ 78. In Plaintiff’s cross-motion,

however, the claim has morphed. She now seeks to compel DCPS to pay an expert, Dr. Natasha

Nelson, who performed K.W.’s comprehensive psychological evaluation. Pl.’s Cross-Mot. at 37–

38. Plaintiff asks the court to “order Defendants to pay the invoiced amount for the independent

comprehensive psychological evaluation within 10 days, plus interest.” Id. at 38. The court treats

the breach-of-contract claim as Plaintiff characterizes it.

Plaintiff lacks standing to bring that claim, however. Plaintiff has not shown any injury

due to DCPS’s failure to pay Dr. Nelson. See Lujan v. Defenders of Wildlife,

, 560–

61 (1992). She claims that she is “responsible for the authorized amount,”

but the authorization

letter expressly states, “you do not need to pay your selected provider for the evaluation.” Pl.’s

Exs. at 87. Nor has Plaintiff shown that Dr. Nelson has sought payment from her or withheld any

examination results pending receipt of payment from DCPS. Accordingly, having failed to

demonstrate injury, Plaintiff lacks standing to assert her breach-of-contract claim. See Spokeo,

Inc. v. Robins,

(2016).

E. Remedy

The court remands this matter to the Hearing Officer to fashion a compensatory education

award for DCPS’s failure to implement the 2018–2019 and 2019–2020 IEPs, as described above.

See Reid ex rel. Reid v. District of Columbia,

(D.C. Cir. 2005). Such a remand

is warranted because developments since the administrative hearing, including the independent

evaluations of K.W. and the authorization of tutoring for K.W., put the Hearing Officer in a better

position than this court to craft an appropriate compensatory remedy.

17 V. CONCLUSION AND ORDER

With respect to Counts One and Three, the judgment of the Hearing Officer is affirmed

and the District’s Motion for Summary Judgment, ECF No. 31, is granted and Plaintiff’s Cross-

Motion for Summary Judgment, ECF No. 34, is denied.

With respect to Count Two, the court grants Plaintiff’s motion and denies the District’s

motion. The court remands the judgment on this claim to the Hearing Officer for further

proceedings consistent with this opinion and to fashion an appropriate compensatory education

award.

As to Count Four, the court leaves it to the Hearing Officer on remand to determine whether

any relief is appropriate.

Finally, as to Count Five, the District’s motion is granted, and Plaintiff’s motion is denied.

This is a final order.

Dated: March 31, 2022 Amit P. Mehta United States District Court Judge

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