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Damarcus S. v. District of Columbia

United States District Court, District of Columbia

May 23, 2016

DAMARCUS S., by and through his Parent, K.S., Plaintiffs,


          ELLEN SEGAL HUVELLE United States District Judge

         Plaintiff Damarcus S. is a sixteen year-old student in the District of Columbia Public Schools (“DCPS”) who has been diagnosed with an intellectual disability. (See Administrative Record (“AR”) at 443.) Damarcus and his mother K.S. bring this suit under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. They allege that the District of Columbia (“the District”) has failed repeatedly over many years to provide Damarcus with a Free Appropriate Public Education (“FAPE”), as required by the IDEA. After an administrative due process hearing, plaintiffs were awarded fifty hours of compensatory education for the District’s failure to provide an appropriate behavioral plan in 2013 and 2014. (See AR at 1-17.) Otherwise, the majority of their claims were dismissed as either time-barred or lacking in merit. (Id.) Plaintiffs challenge those rulings in the Hearing Officer’s Determination (“HOD”). (See Compl. [ECF No. 1].)

         Although the IDEA provides that the District Court “shall hear additional evidence at the request of a party, ” 20 U.S.C. § 1415(i)(2)(C), neither party has identified any deficiency in the record or moved for an evidentiary hearing. Instead, they have each filed cross-motions for summary judgment based on the existing administrative record. (See Pls.’ Mot. for Summ. J. [ECF No. 15]; Def.’s Cross-Mot. for Summ. J. [ECF No. 17].) For the reasons set forth below, the parties’ cross-motions are granted in part and denied in part, and the case will be remanded for further proceedings before the Hearing Officer.


         Damarcus entered DCPS as a first grader in the 2006-2007 school year. (See AR at 30.) The District gave him a comprehensive psychological evaluation in November 2006, which showed “severe cognitive problems, ” assessment scores in the Below Average to Lower Extreme range, overall thinking and reasoning abilities in the 1st percentile, and behavioral problems that had previously resulted in a diagnosis of Oppositional Defiant Disorder. (See Id. at 29-39.) The 2006 evaluation also noted that the previous year Damarcus had been found to have a Full Scale IQ (“FSIQ”) of 76. (See id. at 30.) The following year he was diagnosed by the District with an intellectual disability and placed full-time in the special education classroom. (See Id. at 6, 40.) Damarcus faces numerous other challenges, including Attention Deficit Hyperactivity Disorder (id. at 289) and periods of homelessness (see Id. at 432 (noting that Damarcus’s family “has been displaced twice without securing permanent housing”). Nevertheless, the record consistently reflects both his friendliness and his eagerness to learn. (See, e.g., id. at 6 (“a pleasant and engaging young man with many social strengths”); id. at 132-33 (a friendly student “who is eager to attend and puts forth effort to complete activities requested of him”).)

         Since entering DCPS, Damarcus has failed to make meaningful academic progress in key areas-as an eighth grader, Damarcus’s literacy and written expression skills were at a kindergarten grade level, while his mathematics skills ranged from kindergarten to second grade level. (See Id. at 243-48.) This lack of progress is illustrated starkly in Damarcus’s 2014 Individualized Education Program (“IEP”), [1] which indicated that his baseline in written expression had not changed in nearly three years. (See Id. at 248 (stating baseline “[a]s of 8/30/11”).) His goals and objectives, which also remained static across multiple IEPs, similarly indicate his lack of progress. (See, e.g., id. at 67-69, 154-55 (2012 IEP goals and objectives in mathematics, reading, and written expression all repeated word-for-word in 2013 IEP). Despite this, the level of individual services provided by DCPS steadily decreased throughout the relevant time period. In 2010 and 2011, as a student at Malcolm X Elementary School, Damarcus received four hours per month of speech-language pathology and four hours per month of behavioral support (id. at 45, 62); in 2012, his behavioral support at Langley Education Campus was cut in half to two hours per month (see Id. at 71); the following year, his speech-language hours were cut to two hours per month (see Id. at 159); and in 2014, having moved on to McKinley Middle School, Damarcus’s speech-language hours were cut to thirty minutes per month. (See Id. at 251.)

         The District re-evaluated Damarcus in February 2013. His Speech-Language Reevaluation found “severe receptive-expressive language and low receptive-expressive vocabulary, ” with results on the TOLD-I:4 assessment in the Very Poor range on every metric. (See Id. at 125, 127.) His Psychological Reevaluation showed scores on the KABC-II assessment in the Below Average to Lower Extreme range, with an FSIQ of 59. (See Id. at 139.) His scores were even lower on the WJ-III assessment, which measures academic achievement, thus suggesting that, despite his cognitive difficulties, Damarcus is capable of more than he has achieved thus far. (See Id. at 140-42.) The evaluation also found “behavior concerns that impact Damarcus’s overall functioning within home and school settings.” (Id. at 146.) It concluded that he has “global delays in cognition, academic achievement, and adaptive behavior functioning.” (Id. at 149.)

         On May 16, 2013, plaintiffs filed a Due Process Complaint (“DPC”) with the District alleging, inter alia, that the February 2013 evaluations were inadequate and inappropriate, that Damarcus’s IEPs from 2011 to 2013 were deficient, and that the District should have conducted a Functional Behavioral Assessment (“FBA”) in order to provide Damarcus with a Behavioral Intervention Plan (“BIP”). (See Id. at 175-81.) On January 29, 2014, they filed another DPC, seeking authorization for both an FBA and an Independent Educational Evaluation (“IEE”) to examine Damarcus’s psychoeducational needs. (See Id. at 236-42.)[2] Finally, plaintiffs filed a complaint on December 16, 2014, raising basically the same deficiencies as those alleged in the May 2013 DPC, but also alleging these deficiencies regarding the 2014 IEP. (See Id. at 334-41.)

         The December 2014 complaint was buttressed by the conclusions of Dr. Lisi Levisohn, whom plaintiffs hired at their own expense to provide an independent neuropsychological evaluation of Damarcus. (See Id. at 289-304.) Dr. Levisohn’s evaluation relied in part on testing that showed Damarcus to have a General Ability Index of 73, with severe deficits in working memory and processing speed. (See Id. at 284 (cognitive testing conducted by Dr. Dahlia Topolosky).) Dr. Levisohn concluded that (1) Damarcus’s reading, math, and writing scores were “much weaker than they should be even compared to his intellectual level” (id. at 301)(emphasis omitted), (2) he presents with “extremely deficient auditory working memory and auditory processing” (id.), and (3) he has a specific learning disability “beyond what would be expected for his low intellectual level” (id. at 303). Plaintiffs also hired Dr. Annie McLaughlin, a behavioral consultant, who submitted a report discussing her brief observations of Damarcus in the classroom. (See Id. at 311-12.) Thus, in addition to seeking compensatory education and an appropriate IEP for Damarcus moving forward, plaintiffs also sought reimbursement for the IEEs completed by Drs. Levisohn and McLaughlin. (Id. at 6.)

         A due process hearing was held by Hearing Officer NaKeisha Sylver Blount on March 9 and 12, 2015. (Id. at 3-4.) Plaintiffs offered testimony from Damarcus’s mother, K.S.; behavioral specialist Dr. McLaughlin; psychologist Dr. Levisohn; speech-language pathologist Ms. Douglas; and Nancy Gregerson, who runs a school specializing in the Lindamood-Bell reading program. (See Id. at 4.) The District offered testimony from Damarcus’s ninth grade teacher, Christina Sandoval; DCPS social worker Vanessa Wortham; DCPS speech-language pathologist Marnie Cato; DCPS program manager Karen Morgan; and DCPS psychologist Courtney Richmond. (See Id. at 4.) The Hearing Officer subsequently determined that (1) all claims arising from conduct that predated December 16, 2012, were barred by the IDEA’s statute of limitations; (2) the District denied Damarcus a FAPE when it failed to conduct a behavioral assessment and put in place an intervention plan in 2013 and 2014; but that (3) all other claims relating to the 2013 and 2014 IEPs lacked merit. (See Id. at 12-14, 17.) She awarded plaintiffs fifty hours of “behavioral support services to be utilized for mentoring, individual and/or family counseling, and/or any other reasonable purpose of Parent’s choice, ” and she provided that any hours that were not used by June 30, 2016, would be forfeited. (See Id. at 17.)



         Plaintiffs, as the party challenging the administrative decision, carry the burden of “persuading the court that the hearing officer was wrong.” See Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). The Court must give “due weight” to the hearing officer’s determinations and “may not substitute its own notions of sound educational policy for those of the school authorities.” S.S. ex rel. Shank v. Howard Road Academy, 585 F.Supp.2d 56, 63-64 (D.D.C. 2008) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). That said, less deference is to be accorded to the hearing officer’s decision than would be the case at a conventional administrative proceeding, and a decision “without reasoned and specific findings deserves little deference.” Reid, 401 F.3d at 521 (quoting Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d 84, 87 (D.C. Cir. 1991)). The Court is “obligated by the IDEA to ensure that relief set forth in the administrative award was ‘appropriate, ’” so the Court may not simply defer to the hearing officer’s discretion if the basis for her award is not explained. See Id. Moreover, where the administrative record lacks “pertinent findings” and where neither party requested “consideration of additional evidence, the [Court] may determine that the ‘appropriate’ relief is a remand to the hearing officer for further proceedings.” Id. at 526. Finally, on pure questions of law, such as the IDEA’s proper statutory construction, the standard of review is de novo. Id. at 521.


         Plaintiffs first challenge the Hearing Officer’s dismissal of all allegations related to the September 28, 2010, May 17, 2011, and February 20, 2012 IEPs, as well as any claims related to the implementation of the February 2012 IEP prior to December 16, 2012. (See AR at 14-17.) They argue that a recent Third Circuit opinion clearly demonstrates that the Hearing Officer misinterpreted the IDEA’s statute of limitations provisions, so as to reach only violations that occurred within two years of the filing of the DPC. (See Pls.’ Mot. for Summ. J. at 7-10 (citing G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3d Cir. 2015).) Plaintiffs are correct that the Hearing Officer’s statute of limitations analysis was flawed, but that does not necessarily entitle them to pursue all of the claims they assert here.

         There are two provisions in Section 1415 of the IDEA that bear upon the relevant limitations period: (b)(6) and (f)(3)(C). See 20 U.S.C. § 1415(b)(6), (f)(3)(C). The first unambiguously establishes a filing deadline, requiring a due process hearing be requested “within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.” See Id. § 1415(f)(3)(C). The second is included in a section that outlines the types of procedures available under the IDEA, and it mandates

[a]n opportunity for any party to present a complaint-
(A) with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child; and
(B) which sets forth an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for presenting such a complaint under this subchapter, in such time as the State law allows, except that the exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.

See Id. § 1415(b)(6) (emphasis added). At first glance, this section appears to set out a remedy cap-even if under (f)(3)(C) a party timely files within two years of the “knew or should have known” (“KOSHK”) date, it is still prohibited under (b)(6) from recovering for any injury that preceded the KOSHK date by more than two years. In other words, the two provisions work in tandem to create a maximum relief period of four years-two years before and two years after the discovery date-which courts have deemed the “2” construction. See G.L., 802 F.3d at 607. Plaintiffs unsuccessfully made this argument below (AR at 14-15), and in a reversal of positions, the District now adopts it before this Court. (See Def.’s Cross-Mot. for Summ. J. at 13 n.6.)

         However, as the Third Circuit has persuasively held, the 2 construction renders the statutory text illogical. See G.L., 802 F.3d at 614-15. First, if (b)(6) should be read as a remedy cap, then there is no reason to provide that a state’s applicable filing deadline should supplant it. See 20 U.S.C. § 1415(b)(6) (providing that “if the State has an explicit time limitation for presenting such a complaint under this subchapter, ” then state law controls). By the same token, (b)(6) also incorporates two grounds for equitable tolling that are more logically compatible with a filing deadline than a remedy cap. See Id. § 1415(b)(6) (“[T]he exceptions to the timeline described in subsection (f)(3)(D) shall apply to the timeline described in this subparagraph.”); see also G.L., 802 F.3d at 617 (“[I]t would be odd indeed for § 1415(b)(6)(B), if it actually described a remedy cap . . . to apply equitable tolling provisions from § 1415(f)(3)(D), but quite logical if § 1415(b)(6)(B) merely restates the statute of limitations to which those equitable exceptions apply.”). Unsurprisingly, then, these identical provisions do apply to the filing deadline set out in (f)(3)(C). See 20 U.S.C. § 1415(f)(3)(C), (D). By contrast, to construe (b)(6) as unambiguously creating a remedy cap, one must all but disregard the state-borrowing and equitable tolling provisions set forth in the second half of the very same sentence. See Id. § 1415(b)(6).

         Instead, a more thorough statutory analysis demonstrates that (b)(6) was intended merely to restate the filing deadline in (f)(3)(C), and that the textual ambiguity resulted from an error in reconciling the House and Senate drafts of a 2004 IDEA amendment. See G.L., 802 F.3d at 616-26. Rather than restate the Third Circuit’s lengthy analysis verbatim-which the Court adopts in full-a summary of the key points will suffice:

First, the structure, language, and context of the IDEA strongly suggest that Section 1415(b), which sets out the Act’s procedural safeguards, is nothing more than a preamble or precis summarizing the substantive provisions that follow. See G.L., 802 F.3d at 616-18. Thus, the so-called “remedy cap” in (b)(6)-which uses largely identical words and phrases as (f)(3)(C)-was actually intended to be a restatement of the filing deadline set out in (f)(3)(C). See id.
Second, construing (b)(6) as a remedy cap would be inconsistent with the Act’s broad remedial purpose, see Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009), in effect working a sub silentio repeal of a long line of cases granting comprehensive, uncapped relief to IDEA plaintiffs. See G.L., 802 F.3d at 618-21.
Third, the Department of Education, which is responsible for promulgating regulations under the IDEA, has consistently taken the position that (b)(6) and (f)(3)(C) state the same limitations period. See Id. at 621 (citing Assistance to States for the Education of Children with Disabilities & Preschool Grants for Children with Disabilities, 71 Fed. Reg. 46, 540, 46, 706 (Aug. 14, 2006), and a DOE amicus brief filed with the Third Circuit).
Fourth, legislative history indicates that (1) the House bill proposed a one-year limitations period that looked backward from the date of filing; (2) the Senate bill proposed a two-year limitations period that looked forward from the KOSHK date; (3) the conference committee attempted to reconcile both versions in separate statutory provisions, by adopting the Senate’s material terms; and (4) the Senate version was incorporated at (f)(3)(C), while the House version was incorporated at (b)(6), but the drafters simply failed to change the House’s backward-looking framework to the Senate’s forward-looking framework. See G.L., 802 F.3d at 621-24.

         Adopting the Third Circuit’s analysis, this Court concludes that as long as the complaint is filed within two years of the KOSHK date, plaintiffs are entitled to full relief for that injury. See Id. at 626.

         The Hearing Officer concluded that plaintiffs’ complaint “may only include violations dating back as far as two years prior to the filing” of the complaint. (AR at 17.) This phrasing suggests that she incorrectly applied the backward-looking occurrence rule rather than the IDEA’s forward-looking discovery rule, see G.L., 802 F.3d at 613, but when read in context, it is clear that she calculated KOSHK dates in order to apply the discovery rule. (See AR at 17 (“[T]he KOSHK date for the violations alleged in the instant case is the same date as the alleged violations themselves.”).) That is, because she believed that the KOSHK dates were identical to the occurrence dates, the limitations period would have been the same regardless of whether she counted forward two years from the KOSHK date or two years backward from the filing date. (See id.) Thus, the Court takes no issue with her application of the discovery rule except to the extent that she determined that plaintiffs should have discovered the alleged IDEA violations on the very date that they occurred.

         Neither the Hearing Officer nor the parties have offered the kind of “fine-grained analysis” that is necessary to determine discovery dates in a complaint alleging so many different IDEA violations. See K.H. v. New York City Dep’t of Educ., 2014 WL 3866430, at *16 (E.D.N.Y. Aug. 6, 2014) (rejecting hearing officer’s broad dismissal of claims arising before a certain date, because there was no piecemeal analysis of plaintiff’s many claims and when she should have known of them). As noted, the Hearing Officer found that “the KOSHK date for the violations alleged in the instant case is the same date as the alleged violations themselves, ” but she offered no explanation in support of that conclusion. (See AR at 17.) Rather, she simply took for granted that plaintiffs should have been aware of any IEP deficiencies on the very day the IEP was created, and that any failures in implementation should also have been recognized instantaneously. (See id.) Certainly, there are some deficiencies that can be recognized immediately by a layperson when an IEP is created. See, e.g., D.C. v. Klein Indep. Sch. Dist., 711 F.Supp.2d 739, 745 (S.D. Tex. 2010) (plaintiff should have known immediately that necessary parties were not present for IEP meeting). But the Hearing Officer’s blanket finding that all deficiencies should be immediately recognized puts too great a burden on parents, who often lack the knowledge to understand the complexities of educating disabled children. See M.C. ex rel. J.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (“[A] child's entitlement to ...

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