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James v. District of Columbia

United States District Court, District of Columbia

June 21, 2016

Theresa James, Plaintiff,
v.
District of Columbia, Defendant.

          MEMORANDUM OPINION

          Amit. P. Mehta United States District Judge

         I. INTRODUCTION

         Plaintiff Theresa James, acting on behalf of her minor granddaughter, V.J., brought this action alleging that Defendant District of Columbia violated the Individuals with Disabilities Education Act (IDEA). At an administrative hearing, a Hearing Officer ruled that Defendant fulfilled its obligations under the Act. Plaintiff now challenges that ruling, asserting that Defendant: (1) failed to implement V.J.’s individualized education program until at least March 14, 2013; (2) failed to conduct a required comprehensive psychological evaluation of V.J.; and (3) failed to conduct a required speech-language evaluation of V.J. Defendant counters that its actions were appropriate under the IDEA and that Plaintiff failed to meet her burden of proof to show a violation.

         Before the court are Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment. After considering the parties’ submissions and the relevant law, the court concludes that Defendant violated the IDEA by failing to implement V.J.’s individualized education program and by failing to provide V.J. with a comprehensive psychological evaluation. The court remands this matter to the Hearing Officer to fashion an appropriate remedy. As for Plaintiff’s contention that V.J. was denied a speech-language evaluation, because the record does not contain sufficient findings of fact to decide that question, the court will remand it to the Hearing Officer for further fact-finding. Accordingly, the court grants Plaintiff’s Motion in part and denies it in part; denies Defendant’s Cross-Motion; and remands the case back to the Hearing Officer for further proceedings consistent with this Memorandum Opinion.

         II. BACKGROUND

         A. Factual Background

         At all times relevant to this action, Plaintiff’s granddaughter, V.J., was a student either in the District of Columbia Public School (“DCPS”) system or in a charter school for which DCPS was the overseeing local government agency. V.J. is intellectually disabled, making it difficult for her to learn with other students her age or participate in a normal classroom setting. See, e.g., Administrative Record, ECF No. 10 [hereinafter AR], at 53-54 (V.J. has “[s]ignificant deficits” in math and writing skills that “impact [her] ability to perform at grade level” and “interfere with her ability to participate in grade level class work.”). As far back as 2007, when V.J. was just nine years old, she received a Speech and Language Evaluation which determined that she had a “severe disorder in overall language skills” and “will experience difficulty in class with language comprehension and expression tasks.” AR at 12-13. Three years later, V.J. underwent more tests which found that she “demonstrated very low visual motor integration skills that are equivalent to a child who is 6 - years, 3 - months old . ” AR at 2 3 - 24. Other evaluations found V.J. to be significantly behind her peers in development markers like verbal comprehension (3rd percentile); perceptual reasoning (1st percentile); working memory (4th percentile); and processing speed (0.1 percentile). AR at 30-31.

         1. The February 2012 and February 2013 IEPs

         V.J. attended the Richard Wright Public Charter School (“Richard Wright”) for the 2011-2012 and 2012-2013 school years, when she was in the eighth and ninth grades, respectively. Def.’s Cross-Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J., ECF. No. 12 [hereinafter Def.’s Mot.], at 4. On February 22, 2012, DCPS convened a meeting to review V.J.’s individualized education program (“IEP”) and to set her annual goals for the upcoming school year. Id.; see also AR at 52. The IEP that resulted from the meeting (the “February 2012 IEP”) provided that, beginning on February 23, 2012, V.J. should receive 23 hours per week of “Specialized Education” from special education teachers outside of the general education classroom, 60 minutes per week of occupational therapy outside of the classroom, and 3 hours per week of reading instruction in a general education setting. AR at 57-58.

         The February 2012 IEP was in effect for almost a full year. On February 5, 2013, while V.J. was still a student at Richard Wright, an IEP team met to review and revise the February 2012 IEP. Id. at 69. The resulting IEP (the “February 2013 IEP”) found that V.J. had an “[i]ntellectual disability, ” functioned “at or near a 1st grade level” in math, could “read very basic words, ” and “ha[d] significant difficulty expressing herself effectively in independent writing.” Id. at 70-73. The February 2013 IEP required that V.J.’s specialized instruction be increased to 26.5 hours outside the general education setting per week. Id. at 78. In addition, V.J.’s IEP team determined that she required the assistance of a “dedicated aide” to help with her educational goals. Id.

         2. Plaintiff’s Request for a Comprehensive Psychological Evaluation

         At the IEP meeting held on February 5, 2013, Plaintiff requested that the school conduct evaluations of V.J., including a comprehensive psychological evaluation. Id. at 66. V.J.’s school agreed to conduct the psychological evaluation, and in late February 2013, an employee of Richard Wright emailed Plaintiff a “consent to evaluate form” and confirmed in the email that “we are all in agreement on a comprehensive psychological evaluation” of V.J. Id. at 98. Plaintiff’s counsel confirmed a few days later that Plaintiff “agree[d] to a comprehensive psychological evaluation” but expressed concern that the consent form sent by Richard Wright did not specify which evaluations were to be administered. Id.

         On March 5, 2013, Richard Wright apparently changed course and informed Plaintiff that no evaluations of V.J. would be conducted “outside of the triennial testing period” until a “Student Evaluation Planning meeting” could be held where data would be evaluated to confirm the need for testing. Id. at 100. Also on March 5, 2013, a DCPS employee conducted a classroom observation of V.J. at Richard Wright. Id. at 102. The resulting written report described V.J.’s troubles focusing in class and completing her school work, observed that the temporary dedicated aide assigned to her was not effective, and recommended that the aide be removed. Id. at 102-07. It also noted that the Richard Wright staff had said that “they are unable to fully implement this IEP” for V.J. Id. at 106-07.

         Nine days later, on March 14, 2013, Richard Wright informed Plaintiff in writing of DCPS’ recommendation that V.J. leave Richard Wright and enroll at “her neighborhood school . . . in the ID classroom” because her “IEP can be fully implemented there.” Id. at 113. That notice stated that, because Richard Wright “is a full inclusion school, they are unable to fully implement [V.J.’s] current IEP.” Id. Plaintiff’s counsel objected to the recommendation to move V.J. from Richard Wright to another school and invoked “the parent’s stay-put protections, ” keeping V.J. enrolled at Richard Wright through the end of the school year. Id. at 115.

         3. Testing and Assessment of V.J. in 2013

         V.J. attended St. Coletta Public Charter School (“St. Coletta”) for the 2013-2014 school year. Pl.’s Mot. for Summ. J., ECF No. 11 [hereinafter Pl.’s Mot.], at 4. On October 31, 2013, Plaintiff signed a consent form to have V.J. evaluated to determine whether she “[wa]s eligible or continue[d] to be eligible for special education and to determine educational needs.” AR at 172. Although Plaintiff signed the consent in late October 2013, assessments and evaluations of V.J. occurred both before and after, including: a Vocational Assessment Report on September 18, 2013, Def.’s Mot. at 6; AR at 129; a TEACCH Transition Assessment Profile (“TTAP”) on October 2, 2013, AR at 133; a Psychological Triennial Reevaluation on October 23, 2013, id. at 145; and an Occupational Therapy Evaluation Report on December 11, 2013, id. at 175.

         Of particular importance to this lawsuit is the Psychological Triennial Reevaluation. Id. at 145. The document is described in its header as a “Summary of Existing Data” and lists, among other things: the sources of information reviewed; a description of V.J.’s educational profile; and the author’s recommendations for V.J.’s future. Id. at 145-47. The Triennial Reevaluation stated that V.J.’s “last psychological assessment was completed in January of 2011” and reviewed the results of that assessment. Id. at 146. Notably, the Triennial Reevaluation did not reflect any new testing or evaluation of V.J.

         The same day that the Psychological Triennial Reevaluation occurred, DCPS convened another meeting to review V.J.’s existing IEP and revise it if necessary. Id. at 148. Notes from the meeting taken by a representative of St. Coletta state that V.J.’s “[l]ast psychological evaluation was completed in 2010” and, despite certain scores “in the extremely low range [, ] . . . [n]o updated evaluation is recommended at this time.” Id. at 142. The IEP team did recommend, however, that the time spent by V.J. in specialized education outside of the general education classroom should be increased to 29 hours per week, noting that the “[s]everity of disability and frequency/intensity of services require that student be removed from general education classroom to receive services as prescribed on the current IEP.” Id. at 157. For the first time, the IEP also determined that V.J. should be enrolled in a program aimed at allowing her to acquire a high school certificate-rather than a high school diploma-by the age of 21. Id. at 167.

         A final IEP meeting was held on January 14, 2014, at which the participants concluded that V.J. continued to meet the criteria of “a student with an Intellectual Disability as defined in IDEA” and should continue receiving “special education services at the current rate.” Id. at 184.

         B. Procedural History

         On July 8, 2014, Plaintiff filed an administrative due process complaint with DCPS’ Office of Dispute Resolution. Id. at 207. The complaint alleged that DCPS failed to (1) provide assessments of V.J. upon request of a parent or, in the alternative, (2) comprehensively reevaluate V.J. in all areas of suspected disability and/or upon parental request; and (3) implement V.J.’s IEP. Id. Plaintiff requested relief in the form of (1) a declaration that DCPS denied V.J. a free and appropriate public education (“FAPE”) due to its failure to provide assessments; (2) an order that DCPS fund the requested evaluations, convene an IEP meeting to review the evaluations, and then review and revise V.J.’s IEP, as well as pay reasonable attorney’s fees; and (3) an order that V.J. receive appropriate compensatory education. Id. at 210. In its response to Plaintiff’s administrative complaint, DCPS denied that it failed to provide V.J. with a FAPE, denied that it failed to implement V.J.’s IEP, and asserted that it completed all required assessments of V.J. Id. at 225-26.

         An administrative due process hearing occurred on August 19, 2014. Id. at 318. At the hearing, four witnesses testified: Dr. Natasha Nelson, an expert in clinical psychology and vocational assessments; Nancy Gregerson, the Center Director at Lindamood-Bell, a program that provides services to children and adults with learning disabilities; Plaintiff; and V.J. Id. at 4; Def.’s Mot. at 8-9. Dr. Nelson explained that a comprehensive psychological evaluation entails, among other things, (1) interviews with the student, her parents and teachers, and (2) a battery of tests and evaluations designed to measure the subject’s IQ, her achievements in reading, math, writing, and oral language skills, and her “social-emotional functioning” and “personality functioning.” Id. at 371, 374-75 (testifying that a comprehensive psychological ...


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