The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Nina Suggs alleges that the defendant, the District of Columbia, violated the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"), by failing to arrange for certain assessments of her child, A.S., and thereby depriving him of the special education to which he is entitled under the Act. The matter was referred to Magistrate Judge Alan Kay for a Report and Recommendation on the disposition of the parties' cross-motions for summary judgment pursuant to Rule 72(b) of the Federal Rules of Civil Procedure. Judge Kay filed his Report on May 11, 2009, and the plaintiff filed objections.
A party "may serve and file specific written objections to the proposed findings and recommendations" of a magistrate judge. FED. R. CIV. P. 72(b)(2). When a party files written objections to any part of the magistrate judge's recommendation, the Court considers de novo those portions of the recommendation to which objections have been made, and "may accept, reject, or modify the recommended decision[.]" Id. In this case, Judge Kay recommended that the District of Columbia's motion for summary judgment be granted in its entirety and that Ms. Suggs' cross-motion be denied. Ms. Suggs then objected to those recommendations and to each ground upon which they were based. Since Ms. Suggs challenged the Report in its entirety, the Court conducted a de novo review of both motions for summary judgment.
After considering all of the relevant papers, the administrative record, Judge Kay's Report, and the entire record in this case, the Court issued an Order on September 30, 2009, in which it (1) accepted in part and rejected in part the reasoning contained in Judge Kay's Report, (2) denied both motions for summary judgment without prejudice, (3) vacated the administrative ruling, and (4) remanded the case for further proceedings at the administrative level.*fn1 The Court explains its reasoning below and identifies the issues that should be considered by the Hearing Officer on remand.
Nina Suggs is the parent of A.S., a resident of the District of Columbia who was ten years old at the time of the administrative hearing in this case. AR at 11; Pl.'s Mot. at 5. Classified by the District of Columbia Public Schools ("DCPS") as learning disabled with "speech and language deficits," A.S. is entitled to receive special education and related services under the IDEA. Until the summer of 2008, A.S. attended High Road Primary School, a private school in the District of Columbia that provides a "special education program for students with academic and behavioral problems." AR at 11-12.
In April 2007, Ms. Suggs filed an administrative complaint with the Student Hearing Office, a division of the D.C. Office of the State Superintendent of Education ("OSSE") that processes complaints concerning the school district's provision of special education services and assigns each complaint to a "hearing officer," a neutral adjudicator employed by OSSE, not by DCPS. See AR at 12. Ms. Suggs alleged that DCPS had wrongfully failed to perform a "neuropsychological" assessment of A.S. Id. Agreeing with Ms. Suggs, the Hearing Officer who reviewed her complaint ordered DCPS to fund an "independent" evaluation - i.e., an evaluation performed by an examiner who is chosen by the parent and is not an employee or agent of DCPS. Id.
A.S. subsequently underwent a neurological assessment arranged by Ms. Suggs' attorney and performed by Keita Vanterpool, a "senior consultant" with a Doctor of Chiropractic degree. See AR at 125. In a written report, Dr. Vanterpool noted that A.S. had sustained two potentially significant head injuries as a child, summarized the results of a variety of tests she had performed on A.S., and concluded that while A.S.'s "cerebellar function is within normal limits," his "[c]erebral function is delayed in the cognitive areas." Id. at 127-28. She recommended a range of special education services and also suggested that A.S. should undergo a "psychiatric evaluation . . . to assess [his] emotional and psychological state" and an "EEG/MRI to determine if there is residual/visible brain damage as a result of the 2 falls in early childhood." Id. at 128.
A multidisciplinary team ("MDT") - consisting of the director of High Road Primary School, one of the school's special education teachers, and an educational advocate acting on behalf of A.S. - met on December 11, 2007 to review Dr. Vanterpool's report and discuss its relevance to A.S.' educational program. See AR at 13, 130-31. The team members also decided that A.S. should undergo the psychiatric examination, electroencephalogram ("EEG") and magnetic resonance imaging ("MRI") suggested by Dr. Vanterpool so that his educational program could be further tailored, if necessary, in light of the results of those tests. Id. Those recommendations for further testing were transmitted by facsimile to DCPS immediately after the team's meeting. Id. at 130-34.
When DCPS had not conducted the recommended psychiatric, EEG or MRI exams by the end of January 2008, Ms. Suggs filed another complaint with the Student Hearing Office. She alleged that DCPS had violated federal law by failing to conduct the recommended examinations and requested that DCPS be ordered to fund independent testing. See AR at 119-20. Lawyers for Ms. Suggs and DCPS presented evidence and arguments to the assigned Hearing Officer in February 2008, and less than a week later, the Hearing Officer issued a Hearing Officer Decision ("HOD") denying Ms. Suggs' claim for relief. See id. at 14. Ms. Suggs then filed a complaint in this Court, seeking review and reversal of the HOD.
The Individuals with Disabilities Education Act requires all states and the District of Columbia to provide resident children with disabilities a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1412(a)(1). A FAPE consists of "special education and related services" that, among other things, "include an appropriate . . . education" and "are provided in conformity with the individualized education program required" by the statute. 20 U.S.C. §§ 1401(9)(C)-(D)
The IDEA attempts to guarantee children with disabilities a FAPE by requiring states and the District of Columbia to institute a variety of detailed procedures. "'[T]he primary vehicle for implementing'" the goals of the statute "'is the individualized education program, which the [IDEA] mandates for each child.'" Harris v. District of Columbia, 561 F. Supp. 2d 63, 65 (D.D.C. 2008) (citing Honig v. Doe, 484 U.S. 305, 311-12 (1988)). The individualized education program, or IEP, is a written document that describes the impact of the child's disabilities, annual "academic and functional" goals for the child, and the forms of individualized education and support that will be provided to the child in view of his disabilities and in order to aid his developmental and academic progress. See 20 U.S.C. § 1414(d)(1)(A). Because the IEP must be "tailored to the unique needs" of each child, Bd. of Educ. v. Rowley, 458 U.S. 176, 181 (1982), it must be regularly revised in response to new information regarding the child's performance, behavior, and disabilities. See 20 U.S.C. §§ 1414(b)-(c). Furthermore, the school district must take care to generate that new ...