United States District Court, District of Columbia
G. Sullivan United States District Judge
child R.P., a student at Potomac Preparatory Public Charter
School ("Potomac") from 2013 to 2015, was six years
old in March 2014 when he attempted to commit suicide by
jumping out of a school window because "he wanted to
die." Compl., ECF No. 1 ¶ 16. R.P.'s suicide
attempt and more than fifteen other disciplinary incidents
took place after Potomac's November 2013 evaluation of
R.P. Pl's Mem. Supp. Mot. Summ. J. ("Pl's Mem.
Supp.") ECF No. 10 at 2. In January 2014, Potomac
concluded that R.P. was not eligible to receive special
education services under the Individuals with Disabilities
Education Improvement Act ("IDEA"), 20 U.S.C.
§ 1400. See Compl. ¶ 13; Pl's Mem.
Supp. at 28. R.P.'s mother, Ms. Deidre Home ("Ms.
Home"), made several requests for a new evaluation and
confirmed that she would not withdraw her request for an
independent evaluation. Administrative Record
("AR"), ECF No. 9 at 506. Nevertheless, Potomac did
not initiate a hearing or agree to pay for an independent
evaluation until August 2015 when, in response to Ms.
Home's due process complaint, Potomac filed a
counterclaim seeking a ruling that its November 2013
evaluation was appropriate. Def.'s Resp. and
Counterclaim, ECF No. 9, Ex. 1 at 19.
October 26, 2014, a Hearing Officer ruled in favor of
Potomac, finding that the school did not unnecessarily delay
its response to Ms. Home's request for a new evaluation
and that Potomac's November 2013 evaluation was
appropriate. Hearing Officer Determination ("HOD"),
ECF No. 9, Ex. 6 at 94-98. In January 2015, Ms. Home hired
Dr. Natasha Nelson ("Dr. Nelson") to complete an
independent evaluation of R.P. Pl.'s Mem. Supp. Ex. 10-2.
Dr. Nelson concluded that R.P. "meets criteria to
receive special education services under the category of
Emotional Disturbance due to his diagnosis of Adjustment
Disorder with Mixed Disturbance of Emotions and Conduct"
and that R.P. should "receive an [Individualized
Education Plan]." Pl.'s Mem. Supp., Ex. 2 at 12. In
February 2015, Potomac officials refused to consider Dr.
Nelson's evaluation. Id. , Ex. 3 at 10-3 at 2 .
In March 2015, Potomac considered an amended report from Dr.
Nelson, but concluded that although R.P. continued to
demonstrate behavioral problems, he did not qualify for
services under the IDEA because "his behaviors do not
impact his ability to make educational progress or access the
general education." Def.'s March 2015 Eligibility
Mtg. Notes, ECF No. 10, Ex. 5 at 3.
before the Court are the parties' Cross Motions for
Summary Judgment, which present two critical questions: (1)
whether the Hearing Officer erred by finding that
Potomac's response to Ms. Home did not constitute
unnecessary delay; and (2) whether the Hearing Officer erred
by finding that Potomac's November 2013 evaluation was
appropriate despite R.P.'s March 2014 suicide attempt and
other disciplinary infractions between November 2 013 and
March 2 014. See generally Pl.'s Mem. Supp.;
Def.'s Mem. Supp. Summ. J., ECF No. 13. For the reasons
discussed below, and upon consideration of the parties'
briefing and oral arguments, Ms. Home's Motion for
Summary Judgment is GRANTED in part and DENIED in part
without prejudice. Potomac's Motion for Summary Judgment
is DENIED and the Hearing Officer's decision is REVERSED.
The Court finds that the record before it supports the
conclusion that R.P. qualifies for services under the IDEA as
a student suffering from a severe emotional disturbance and
invites supplemental briefing on the issue of compensatory
Potomac's November 2013 Evaluation
began attending Potomac in the fall of 2013. Pl.'s Mem.
Supp. at 2. Ms. Home requested that R.P. be evaluated for
special education services before the school year started
based on a noticeable change in his attitude as a result of
bullying he experienced at his previous school. Id.
In October 2013, Potomac agreed to complete a psychological
and functional behavioral assessment. Id. While
these assessments were under advisement, R.P. was moved to a
different classroom due to repeated disciplinary incidents.
school psychologist, Dr. Sharron Williams ("Dr.
Williams"), completed cognitive, educational,
visual-motor, and social-emotional tests, in addition to
speaking with Ms. Home and observing R.P. in the classroom.
Williams' Eval., AR 261. When compared to his peers,
R.P.'s cognitive abilities were assessed as average.
Id. Dr. Williams concluded that R.P. was
experiencing "transient emotional distress" related
to "family transitions and traumatic events."
Id. at 272. Although Dr. Williams concluded that
these difficulties did not appear to interfere with his
ability to access the general curriculum, she noted:
Given that childhood is a period of cognitive, social, and
emotional growth, [R.P.'s] behaviors should be monitored.
If his behaviors increase in frequency and severity, a
re-evaluation of his behavior and social-emotional
functioning might be warranted.
Id. Although R.P. was not evaluated for any
emotional disturbance disorders, Dr. Williams concluded that
he did not qualify as having a learning disability or other
health impairment under the IDEA. Id. at 273.
Team ("MDT") meetings were held in December 2013
and January 2014 to discuss R.P.'s IDEA eligibility. HOD
at 6, citing Ex. R-13, AR at 310-311. The MDT concluded that
R.P. was not eligible for service under the IDEA, but
recommended R.P. have a 504 plan and a behavior intervention
plan, both of which were developed in March 2014. Pl.'s
Mem. Supp. at 2.
R.P.'s persistent behavioral problems
after R.P's behavior plans were in place, he continued to
demonstrate significant behavioral problems. In March 2014,
R.P. attempted suicide by jumping out of a window at the
school. Potomac Incident Report, AR at 201. In addition, R.P.
was suspended six times and expelled four times between March
2014 and May 2014 for disciplinary incidents that typically
involved R.P.'s physical assault of teachers and other
students. Pl.'s Mem. Supp. at 2-4.
R.P. attempted suicide, Potomac advised Ms. Home to consult
with a physician about R.P.'s suicidal ideation and
required her to submit a letter to the school confirming that
R.P. did not pose an immediate danger to himself. Potomac
Notification Emerg. Conf., AR at 119. R.P. was evaluated by
CHAMPS of Catholic Charities, a children and adolescent
mobile psychiatric service. CHAMPS Evaluation, AR 120-25.
CHAMPS assessed R.P. as suffering from adjustment disorder
with mixed emotional disturbance. May 16, 2014, MDT Meeting
Notes, AR at 129.
Ms. Home's repeated requests for a new independent
March 31, 2014, Ms. Home sent a letter to Potomac officials
requesting an individualized education program
("IEP") . AR at 126. Ms. Home noted that R.P.'s
grades were going down and he was acting more aggressively.
Id. She also noted that R.P.'s 504 and other
behavior plans did not seem to be working in light of
R.P.'s numerous suspensions. Id. On May 7, 2104,
Ms. Home communicated with a Potomac official by email and
specifically requested that the school pay for an Independent
Education Evaluation ("IEE"). AR at 348. Potomac
acknowledged Ms. Home's IEE request and noted that it
would be considered at the MDT meeting scheduled for May 16,
2014. Id. at 347.
meeting was held on May 16, 2014, to discuss Ms. Home's
request. AR at 127. After that meeting, Potomac agreed via
email to pay for an independent functional behavior
assessment, but declined to fund an independent IEE.
Id. at 140, 357, 538-39. Potomac explained that it
would not fund an independent psychological evaluation
because Ms. Home
[d]id not actually express disagreement with the
comprehensive psychological evaluation completed by
[Potomac]. Rather, she stated that she would like a new
psychological evaluation in light of the fact that [R.P.]
received a mental health diagnosis by an outside provider
after the comprehensive psychological evaluation was
completed. That is not a basis for requesting an independent
educational evaluation under [the] IDEA.
Id. 140. Potomac requested that Ms. Home withdraw
her request for an IEE. Id. On May 20, 2014, Ms.
Home's attorney sent an email to Potomac officials
indicating that Ms. Home would not withdraw her request for
an IEE at public expense:
As indicated in my last email Ms. Home does not agree with
Dr. Williams' report and her conclusions, including but
not limited to the report's conclusion that [R.P.'s]
difficulties to not appear to adversely impact his ability to
access the general curriculum. Furthermore, Dr. Williams'
report seems to indicate that [R.P.J's emotional issues
can mostly be attributed to familial transitions and
traumatic events. As Ms. Home indicated at the last meeting,
being that [R.P.] is the only one of her children exhibiting
these types of behaviors, she does not agree with Dr.
Williams' conclusions on this matter either. Ms. Home
continues to believe that [R.P.] qualifies under the IDEA as
a student with an emotional disturbance who requires
specialized instruction and related services in order to be
able to access the general education curriculum.
Id. at 506. On May 23, 2014, Potomac's attorney
indicated she was in the process of discussing the email with
school officials. Id. at 508. On May 30, 2014,
Potomac indicated it was "still undecided how to proceed
with the request for an independent evaluation."
Id. at 353. The school invited counsel and Ms. Home
to meet on June 13, 2014, to "discuss eligibility and
revisions to the student's program." Id. By
this time, Ms. Home was no longer represented by counsel.
Id. at 352.
was suspended for the last two weeks of the 2013-2014 school
year. Id. at 582. During the summer of 2014, a new
principal started at Potomac. HOD at 8.In July 2014, Ms. Home
met with the new principal to discuss R.P.'s disciplinary
record. Id. Ms. Home testified before the Hearing
Officer that her request for an IEE was not discussed at that
meeting. Hearing Tr., ECF No. 9, Ex. 7 ("Hearing
Tr.") at 28. Rather, Ms. Home recalled Potomac officials
telling her R.P. would start with a clean record the next
school year. Id. Potomac's special education
teacher testified that his "impression was that the
functional behavior assessment that the school agreed to was
- satisfied Ms. Home and that there was - that issue [of an
IEE] was resolved." Id. at 77.
Home's due process complaint, Potomac's counterclaim,
and the Hearing Officer's decision
August 1, 2014, Ms. Home secured a new attorney who informed
Potomac that because the school refused to authorize an IEE
or file a due process complaint as required under 34 C.F.R.
§ 300.304(c) (4), Ms. Home was going to have her son
evaluated by an independent examiner and would seek
reimbursement from the school. AR at 362-63. In response, the
school invited Ms. Home to another meeting. Id. On
August 5, 2014, Ms. Home filed a due process complaint
requesting reimbursement for an IEE. Id. at 5. On
August 15, 2014, Potomac filed a response and counterclaim
arguing that its 2013 evaluation was appropriate.
Id. at 465.
October 26, 2014, the Hearing Officer issued his opinion
concluding that Potomac's three-month delay in filing a
due process complaint was not "unnecessary delay"
because school officials were left with the impression that
Ms. Home was satisfied and no longer sought an IEE. HOD at
13. The Hearing Officer also concluded that Potomac's
fall 2013 evaluation was appropriate. Id. at 97.
Events after the October 2014 Hearing Officer
January 2015, Ms. Home paid for an independent evaluation,
which was completed by Dr. Nelson on January 20, 2015.
Pl's Mem. Supp., Ex. 10-2. Dr. Nelson concluded that R.P.
"meets criteria to receive special education services
under the category of Emotional Disturbance due to his
diagnosis of Adjustment Disorder with Mixed Disturbance of
Emotions and Conduct." Id. at 12. Dr. Nelson
recommend that R.P. "receive an IEP which will offer him
inclusion supports in core academic classes for ten hours per
week" and that R.P. "should receive support in his
school in the form of counseling to address his behavioral,
social, and emotional difficulties, for one hour per
week." Id. Ms. Home sent a copy of Dr.
Nelson's report to Potomac. Pl.'s Mem. Supp. at 8.
February 2015, R.P. was suspended again. Pl.'s Ex., ECF
No. 10-3. On February 19, 2015, a "re-entry"
meeting was held. Id. Potomac's new principal
stated that the 504 plan was not working and that R.P. shows
signs of being bipolar. Id. The principal asked if
the team could review Dr. Nelson's evaluation.
Id. The special education teacher refused to allow
the principal to consider Dr. Nelson's report.
Nelson made an updated recommendation in March 2015. Pl's
Ex., ECF No. 10-4. On March 27, 2015, Potomac held an
eligibility meeting and reviewed Dr. Nelson's reports.
Id. Potomac declined to find R.P. eligible for
special education under the emotional disturbance
classification. Id. The team agreed that while R.P.
continued to demonstrate behavioral problems, his behavior
did not impact his ability to make educational progress or
access the general curriculum. Id. at 3.