The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Integrated Design and Electronics Academy Public Charter School ("IDEA PCS") seeks judicial review of a hearing officer determination ("HOD") finding in favor of the student and parent Defendants. The parties have filed cross motions for summary judgment and the Court has reviewed the administrative record. For the reasons articulated herein, the Court concludes that Plaintiff has not met its burden of "persuading the court that the hearing officer was wrong." See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989) ("Kerkam I"). Accordingly, Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED.
A. The Individuals with Disabilities Education Improvement Act ("IDEIA")
The IDEIA, 20 U.S.C. § 1400 et seq., sets forth requirements to ensure schools provide a free, appropriate, public education ("FAPE") to children with disabilities affecting their educational progress. Under the "Child find" mandate of the IDEIA, an LEA must ensure:
All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
20 U.S.C. § 1412(a)(3)(A); N.G. v. District of Columbia, 556 F. Supp. 2d 11, 16 (D.D.C. 2008); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 519, (D.C. Cir. 2005). District of Columbia Public Schools ("DCPS") and other LEAs have an affirmative duty to identify, locate and evaluate a potentially disabled child. The failure to do so constitutes a denial of FAPE. See Hawkins ex rel. D.C. v. District of Columbia, 593 F. Supp. 2d 108, 113-14 (D.D.C. 2008); see also District of Columbia v. Abramson, 493 F. Supp. 2d 80, 85 (D.D.C. 2007).
After the student is identified as potentially disabled, the LEA "must conduct a full and individual initial evaluation" within the District of Columbia's established time frame of 120 days. 34 C.F.R. § 300.301; D.C. Stat. § 38-2501 (§ 141 Pub. L. 106-113). Before proceeding with the evaluation, the LEA is required to provide notice to and obtain consent from the parent of the child. 34 C.F.R. §§ 300.301, 300.304.
If the student is classified as eligible for special education then the child should be placed in "an appropriate program of special education services" within that 120 day period. 34 C.F.R. § 300.301; D.C. Stat. § 38-2501 (§ 141 Pub. L. 106-113). The LEA is relieved of its duty to complete this process within the prescribed time frame where:
(1) The parent of a child repeatedly fails or refuses to produce the child for evaluation; or
(2) A child enrolls in a school of another public agency after the relevant time frame . has begun, and prior to a determination by the child's previous agency as to whether the child is a child with a disability.
34 C.F.R. § 300.301. The second exception is only triggered when the "subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent public agency agree to a specific time when the evaluation will be completed." 34 C.F.R § 300.301.
In conducting the evaluation, the LEA is required to use: a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining -- (i) Whether the child is a child with a disability under § 300.8; and (ii) The content of the child's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum.
34 C.F.R. § 300.304(b)(1). The public agency must "[n]ot use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child." 34 C.F.R. § 300.304(b)(2).
As part of an initial evaluation (if appropriate) . the IEP and other qualified professionals, as appropriate, must (1) review existing evaluation data on the child, including -- "(i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based, local, or State assessments, and classroom-based observations; and (iii) Observations by teachers and related services providers".
34 C.F.R. § 300.305(a)(1); 5 D.C. A.D.A. § 3005.4. "On the basis of that review, and input from the child's parents," the public agency must, identify what additional data, if any, are needed to determine - (i)(A) Whether the child is a child with a disability, as defined in § 300.8, and the educational needs of the child; . (ii) The present levels of academic achievement and related developmental needs of the child; (iii)(A) Whether the child needs special education and related services; . (iv) Whether any additions or modifications to the special education and related services are needed to ...