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LYONS v. SMITH

July 28, 1993

MICHAEL LYONS, by his parents and next friends, Anita Alexander and Julius Lyons, and ANITA ALEXANDER and JULIUS LYONS, Plaintiffs,
v.
FRANKLIN L. SMITH, Superintendent of the District of Columbia Public Schools, and THE DISTRICT OF COLUMBIA, Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 The Court declines to reverse the first hearing officer's conclusion that Michael is not "other health impaired." As to plaintiffs' other claim, the Court finds that a hearing officer may order special education for a child who is determined to be handicapped under § 504, but only when denying the child special education would be discriminatory. *fn1" The Court remands this case to the second hearing officer for a determination of the appropriate placement for Michael. *fn2" Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its analysis. See Fed. R. Civ. P. 52(a).

 Background

 Michael Lyons is an eight-year-old student in the District of Columbia school system who has been diagnosed as having Attention Deficit and Hyperactivity Disorder ("ADHD") which causes him to have behavioral problems at home and school. In 1991, Michael was evaluated by a multidisciplinary team of the District of Columbia Public Schools ("DCPS") which determined that he was ineligible for special education under both the IDEA and § 504.

 Michael's parents, plaintiffs Anita Alexander and Julius Lyons, challenged that determination at a due process hearing in 1992. The hearing officer found that Michael "scored in the average to superior range on almost all tests administered to him[,]" but his "social adjustment had been adversely affected by his ADHD." (First Hearing Determination, Administrative Record ("A.R.") at 6-7.) She determined that Michael was not eligible for special education under the IDEA because he was not "other health impaired" as defined in that statute. This hearing officer nonetheless found that Michael did meet the definition of a qualified handicapped individual under § 504. Consequently, she ordered that DCPS provide Michael with an individualized education program ("IEP") accommodating him with a class size of 10-15 students, a highly structured, therapeutic classroom, a lot of one-to-one attention, academically challenging work, a behavior management plan, counseling, regular consultation with his physician regarding medication, staff experienced with children who have ADHD, and coordination with parents over behavioral interventions. *fn3" (First Hearing Determination, A.R. at 8-9.) *fn4"

 DCPS completed an IEP for Michael and proposed Garrison Elementary School as an appropriate placement for him. Plaintiffs opposed Michael's placement at that school in a second due process hearing in which they sought to have Michael placed and funded at the Lab School of Washington, a special education facility. The second hearing officer affirmed the first hearing officer's conclusion that Michael did not qualify for special education under the IDEA. The second hearing officer also found that DCPS had failed to meet its burden of proving that Garrison was an appropriate placement that would provide Michael with the accommodations mandated by the first hearing officer. The second hearing officer, however, questioned his authority to order DCPS to provide special education to a child found to be "qualified handicapped" under § 504 but not eligible for special education under the IDEA. As a result, he declined to place Michael at the Lab School or to order any placement at all.

 Plaintiffs appeal these determinations by the second hearing officer. DCPS subsequently has proposed two other special education placements for Michael: the Behavior Management Program at Tyler Elementary School and Prospect Learning Center. Plaintiffs have rejected both of these proposals as inappropriate. On December 15, 1992, the Court denied plaintiffs' motion for a preliminary injunction, which requested that the Court order DCPS to fund Michael's attendance at Kingsbury Day School. Michael has remained at Brent Elementary School of the DCPS system for the duration of these proceedings.

 Discussion

 Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348, 1356 (1986).

 The IDEA

 Plaintiffs contend that, as a matter of law, the Court should reverse the first hearing officer's determination that Michael was not "other health impaired" and thus was not eligible for special education under the IDEA. Defendants move for summary judgment, requesting the Court to uphold the determination. The burden is on the party challenging a hearing officer's determination to persuade the Court that the hearing officer was incorrect. Angevine v. Smith, 294 U.S. App. D.C. 346, 959 F.2d 292, 295 (D.C. Cir. 1992); Kerkam v. McKenzie, 274 U.S. App. D.C. 139, 862 F.2d 884, 887 (D.C. Cir. 1988).

 The IDEA provides federal funds to state and local agencies which "have in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). A "free appropriate education" under the IDEA is defined as "special education and related services which . . . are provided in conformity with an individualized education program." 34 C.F.R. § 300.4. *fn5" Because the DCPS system receives these funds, it must develop for each eligible, handicapped child, an IEP describing the specific educational services which DCPS will provide to meet his unique needs. See 20 U.S.C. §§ 1412(4), 1414(a)(5), and 1401(a)(19). In addition, DCPS must provide these children and their parents or guardians with certain procedural safeguards enabling them to challenge the evaluation or educational placement of a child in an impartial due process hearing. 20 U.S.C. § 1415(b)(1) and (2).

 The IDEA permits "any party aggrieved by the findings and decision" of the state administrative hearings to "bring a civil action" in state or federal court without regard to the amount in controversy. 20 U.S.C.A. § 1415(e)(2). The standard of review on appeal under the IDEA is set forth in the statute. "The court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of the party, and basing its decision on the ...


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