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T.H. v. District of Columbia

June 1, 2009


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


I. Prior Proceedings

Currently pending and ready for resolution is the only outstanding issue in this case, whether, in light of the Hearing Officer's determination ("HOD") of November 26, 2008, this case, brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. § 1400 et seq.,*fn1 should be dismissed. The 2008 HOD was issued in response to this Court's determination that a previous HOD, issued January 16, 2007, failed to consider the significance of the student's academic regression.

A detailed recitation of the facts appears in the Court's September 17, 2008 Memorandum Opinion, reported as Hunter v. District of Columbia, No. 07-CV-695, 2008 WL 4307492 (D.D.C., Sept. 17, 2008). Suffice it to say here that the Individualized Education Plan ("IEP") for the 2006-2007 academic year for the student, T.H., did not differ significantly from the IEP for the 2004-2005 academic year. Id. at *10. Nevertheless, and unfortunately, T.H. regressed academically in the same period of time. The first hearing officer, however, did not consider the significance of that regression, and I therefore remanded the case to the hearing officer to do so. Specifically, I stated:

Since the 2004 and 2006 IEP's were all but identical, the failure of the DCPS to answer and the hearing officer to even consider the claimed dramatic regression of T.H. from 2004 to 2006 means that the most crucial criterion by which to judge the efficacy of the 2006 IEP was ignored. It is impossible for an IEP to be considered sufficient when the only evidence presented is of its insufficiency and that evidence is not rebutted by the DCPS or explained by the hearing officer. It is a central principle of administrative law that the agency must base its decision on the record; ignorance of one party's central contention robs that decision of being described as a principled review of what the record revealed. Martin v. Apfel, 118 F.Supp.2d 9, 13 (D.D.C.2000); N.G. v. District of Columbia, 556 F.Supp.2d at 34. This record must therefore be remanded to the hearing officer to consider the significance of the argument that T.H. had regressed substantially and that therefore the 2006 IEP, which merely repeated the requirements of the 2004 IEP, could not possibly provide T.H. with FAPE*fn2 . See Brown v. District of Columbia, No. 07-CV-368, --- F.Supp.2d ----, 2008 WL 2951979, at *9 (D.D.C.2008) (remanding case to hearing officer when undisputed evidence showed decline in test scores over two year period).


II. Proceedings on Remand

On remand, the hearing officer considered T.H.'s regression but concluded that T.H.'s failure to make any progress did not mean that the IEPs at issue were inadequate. The hearing officer stated:

It does not necessarily follow that because Petitioner's goals and objectives did not materially change from 2004 to 2006, the 2006 IEP was necessarily inappropriate. If Petitioner had not made satisfactory progress on his 2004 goals and objectives, the 2006 goals and objectives would not change. There may be many reasons for the lack of progress: perhaps the delivery of services was inadequate, perhaps Petitioner did not put forth an adequate effort, perhaps Petitioner was excessively absent, perhaps Johnson [Junior High School] did not implement the IEP, or perhaps Johnson was not capable of meeting Petitioner's needs. Thus, an IEP reasonably calculated to impart educational benefit might fall short of that goal for reasons other than its inadequacy.

Status Report, Exhibit A at 9 [#23].

III. The Parties' Contentions

According to plaintiffs, this conclusion was based on conjecture rather than substantive grounds. Memoranda of Points and Authorities in Support of Plaintiffs' Request that the Court Vacate the November 26, 2008 Hearing Officer's Determination at 4.

Plaintiffs also quarrel with the Hearing Officer's comparison of the student's situation to those cases which stand for the proposition that a "lack of progress and regression are not valid reasons to determine that the IEP was inappropriate." Id. According to plaintiffs, the issue is not whether the IEP provides for a particular modality or whether it provides the student with the most benefit, but simply whether the IEP is adequate. Id. at 5. Plaintiffs conclude that because the student's testing scores show that he regressed in all subjects and because he didn't receive any educational benefit from his most recent IEP, he was therefore denied a FAPE. Id. at 8.

Finally, plaintiffs argue that the student's placement in a public school was inappropriate, and that defendants violated the June 19, 2006 HOD by failing to convene a meeting within ten days of the completion of ...

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