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M.O. v. District of Columbia

United States District Court, D. Columbia

September 30, 2013

M.O., et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant

Page 32

For M.O., a minor, by her parents and next friends, ELIZABETH SEYMOUR, ROBERT OURLIAN, Plaintiffs: Michael J. Eig, LEAD ATTORNEY, Paula Amy Rosenstock, MICHAEL J. EIG & ASSOCIATES, PC, Chevy Chase, MD.

For DISTRICT OF COLUMBIA, Defendant: Laura George, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC.

Page 33

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The plaintiffs in this civil case, M.O., through her parents, Elizabeth Seymour and Robert Ourlian, allege that the defendant, the District of Columbia (" District" ), failed to provide M.O. with the free appropriate public education (" FAPE" ) to which she is entitled under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400 (2006). Complaint (" Compl." ) ¶ ¶ 74-80. The parties filed cross motions for summary judgment, and United States Magistrate Judge John Facciola issued a Report and Recommendation recommending that both motions be denied and that the matter be remanded to the hearing officer. Report and Recommendation (" R& R" ) at 26. Currently before the Court are the parties' objections to Magistrate Judge Facciola's Report and Recommendation. After careful consideration of the parties' arguments and the administrative record, [1] the Court concludes for the reasons that follow that it must accept the Report and Recommendation, deny both motions for summary judgment without prejudice, vacate the hearing officer's determination, and remand the matter to the hearing officer for further evaluation of the evidence.

I. BACKGROUND

The full factual background of this action has already been laid out in great detail in Magistrate Judge Facciola's Report and Recommendation, see R& R ¶ ¶ 1-134, and the parties have not objected to the findings of fact contained therein, see generally, Pls.' Obj.; Def.'s Opp'n; Def.'s Obj.; Pls.' Opp'n; Def.'s Reply, and thus this Court will not repeat all of those facts again here. The following facts are relevant to the parties' objections.

Page 34

M.O. began receiving speech therapy when she was two and a half years old, and continued that therapy as well as occupational therapy while attending preschool at the Franklin Montessori School. R& R ¶ ¶ 5-8. At the recommendation of M.O.'s speech therapist, she subsequently attended the Maddux School because of its small class sizes, id. ¶ ¶ 9-10, which consisted of twelve children and at least three staff teachers, id. ¶ 11.

Over several months in late 2009 and early 2010, several professionals conducted evaluations of M.O.:

o Dr. Paula Elitov conducted a psycho-educational evaluation of M.O. on October 29, 2009, November 9, 2009, and November 16, 2009, in which she diagnosed M.O. with a learning disability, not otherwise specified (NOS), and attention deficit disorder, primarily the inattentive type. Id. ¶ 15. Among other educational supports, Dr. Elitov recommended a " small group setting" for M.O. Id. ¶ 15.
o Dr. Larry Silver conducted a psychiatric evaluation of M.O. on February 8, 2010, id. ¶ 16, and recommended that " [b]ased on the recommendations of the full faculty at the Maddox [sic] School, [M.O.] should continue next year in an intensive special education program that can address her learning, language, and motor disabilities." Id. ¶ 17.
o Beth Ciangiulli-Levy, a Speech-Language Pathologist, issued a speech and language re-assessment summary for M.O. on March 2, 2010, which recommended that M.O. continue with weekly speech and language therapy. Id. ¶ 18.
o Allison Misttrett of Leaps and Bounds Pediatric Occupational Therapy evaluated M.O. on March 29, 2010, and April 1, 2010, and recommended that M.O. receive " 'individual occupational therapy services 1-2 times per week for 1 hour'" and that the therapist should be " 'trained and certified in sensory integration therapy.'" Id. ¶ 19 (citation omitted).

The Lab School, a private, special education school, Compl. ¶ 20, also conducted an Intermediate Speech and Language Assessment of M.O. on June 10 and 11, 2010, and proposed an Individualized Education Program (" IEP" ) for the 2010-2011 school year. R& R ¶ 21. The assessment was conducted by Kathryn Riverso, a Speech-Language Pathologist. Id. ¶ ¶ 21-22. She concluded that M.O. would do best in a classroom with " 'a small teacher-student ratio, specialized teachers and instruction methods (e.g., hands-on, kinesthetic learning), and speech-language therapy and other related services in a pull-out format and integration of these services within the classroom.'" Id. ¶ 22 (citation omitted).

The plaintiffs completed the District's Private-Religious Student Referral for Special Education Services form on June 16, 2010, id. ¶ 23, and subsequently notified Dr. Shellie Wood, the Special Education Coordinator at Janney Elementary School (" Janney Elementary" ), the public elementary school in their area, that they wanted to convene a multidisciplinary team to address M.O.'s educational disability and her need for special education, id. ¶ 24. On July 15, 2010, before a multidisciplinary team was convened, the plaintiffs informed Dr. Wood that M.O. would not be attending Janney Elementary for the 2010-2011 school year, but would instead attend the Lab School. Id. ΒΆ 26. At Dr. Wood's request, the plaintiffs permitted members ...


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