United States District Court, District of Columbia
SYLVIA HILL et al. Plaintiffs,
DISTRICT OF COLUMBIA Defendant.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE.
action, Plaintiff Sylvia Hill and her son, Plaintiff
“R.H.” (together, referred to as
“Plaintiffs”), seek reversal of the
administrative hearing officer's determination, issued on
August 12, 2014, denying all of their requested relief. They
initiated this action under the Individuals with Disabilities
Education Improvement Act (“IDEA”), alleging that
the District of Columbia Public School System
(“DCPS”) denied R.H. a free appropriate public
education (“FAPE”). Following the parties'
consent to the undersigned's authority, this matter was
referred to this Court for all purposes. Before the Court are
the parties' cross-motions for summary judgment. Upon
review of the record,  the Court will grant in part
Plaintiffs' motion and deny DCPS' motion.
a nineteen-year-old student with a specific learning
disability relating to academic performance and
social-emotional functioning. AR 59. During the 2011-2012,
2012-2013, and 2013-2014 school years, R.H. attended Eastern
Senior High School (“Eastern”), a District of
Columbia Public School. Compl. ¶ 8. This case concerns
only the 2012-2013 and 2013-2014 school years, during which
R.H. was enrolled in the ninth grade. He and his family were
homeless from 2011-2013, AR 149, until they obtained housing
within Eastern's enrollment boundary, see id. at
112. During the school years at issue, R.H. exhibited chronic
absenteeism and academic underperformance. See e.g.,
id. at 97 (failing Algebra I during the 2012-2013
school year because “[R.H.] did not complete the final
exam . . . and he had 106 absences”), 118 (failing
Public Policy during the 2013-2014 school year because
“[R.H.] only comes 1 day a week and [the class] meets
daily”). By the end of the 2013-2014 school year, R.H.
had failed the ninth grade for the third consecutive year.
Compl. ¶ 9.
Plaintiffs' Due Process Complaint
16, 2014, Plaintiffs filed an administrative due process
complaint, alleging that DCPS violated R.H.'s right to a
FAPE. AR 192. Plaintiffs raised ten separate issues in their
complaint, including DCPS' alleged failure to: (1)
provide access to R.H.'s school records; (2) perform a
comprehensive evaluation of R.H.; (3) perform comprehensive
re-evaluations of R.H. upon Ms. Hill's request; (4)
conduct a complete functional behavior assessment
(“FBA”) of R.H.; (5) timely authorize an
independent educational evaluation (“IEE”); (6)
review existing evaluations to develop R.H.'s
individualized education programs (“IEPs”); (7)
develop appropriate IEPs based on R.H.'s educational
needs; (8) properly implement R.H.'s IEPs; (9) provide an
appropriate placement; and (10) include Ms. Hill in the IEP
decision making process. Id. Plaintiffs'
proposed remedies included a declaration that DCPS denied
R.H. a FAPE; an order for DCPS to fund R.H.'s placement
at New Beginnings Vocational School (“New
Beginnings”); and an order to convene a new IEP meeting
to review available evaluations, request funding for
additional IEEs, and determine appropriate compensatory
education for R.H. Id. at 202-03.
The Administrative Record
August 6, 2014, a due process hearing was held before a
hearing officer. Id. at 443- 785. Several days
later, the hearing officer issued her hearing officer's
determination (“HOD”), denying all of
Plaintiffs' requested relief. Id. at 3-13. This
HOD was based on evidence in the academic record, including
R.H.'s IEPs, multiple evaluations, Plaintiffs'
representations, and testimony from special education
experts. See id. The relevant portions of the
administrative record are recounted below.
January 2013 IEP
December 11, 2012, a multidisciplinary team
(“MDT”) met to discuss R.H.'s academic status
at Eastern. Id. at 23. During this meeting, Ms. Hill
participated telephonically, and her legal representative and
advocate, Jazmone Taylor, attended in person. Id.
The rest of the MDT consisted of James Robinson, who
represented the local educational agency (“LEA”);
Travis Cox, R.H.'s case manager; and a social worker.
Id. The team discussed R.H.'s inconsistent
attendance, his academic standing, his school uniform, and
the availability of transportation to and from school.
Id. The team created an attendance plan, encouraging
R.H. to remain after school for extracurricular activities.
Id. Further, it confirmed that R.H. “is
receiving transportation every month from Mr. [LaVaughn]
Turner, ” and arranged for Mr. Cox to “ask
teachers to provide work packet[s] for [the] first 3 weeks of
school.” Id. Finally, the team arranged for
R.H. to wash his uniform at school. Id.
the MDT meeting, Mr. Cox telephoned Ms. Hill to notify her
about R.H.'s upcoming IEP meeting on January 11, 2013, to
which Ms. Hill responded that she would attend. Id.
at 25. Mr. Cox also informed R.H. to attend school “so
that [Mr. Cox] could test him for the IEP.”
Id. On January 7, 2013, Mr. Cox sent R.H. home with
a draft IEP so that Ms. Hill could participate in the meeting
by phone. Id. at 30. Plaintiffs ultimately did not
attend or directly participate in this meeting, though Ms.
Taylor, their educational advocate, attended in person.
Id. at 37. The IEP meeting was held on January 11,
2013, to update R.H.'s IEP goals in light of the results
from recent academic and vocational assessments. Id.
at 35. Attendees included a general education teacher; a
social worker; Mr. Robinson, the LEA representative; and Mr.
Cox, who interpreted R.H.'s evaluation results and served
as the team's special education teacher. Id. at
IEP diagnosed R.H. with a “specific learning
disability, ” prescribed annual goals for three academic
areas of concern - including mathematics, reading, and
writing - and outlined a post-secondary transition plan for
R.H. Id. at 42-54. Baselines for R.H.'s academic
areas of concern were developed from the results of his
Woodcock-Johnson III Test of Achievement (“WJ-III
ACH”) from December 18, 2012. Id. at
42-45. First, R.H.'s math score placed him in
the “low range, ” showing that “he lacks
some foundational math skills.” Id. at 42.
Specifically, R.H. obtained (1) a “low” broad
math standard score (“SS”) of 70, which
correlates to a grade equivalence (“GE”) of 4.7;
(2) a “very low” calculation SS of 63, which
correlates to a GE of 3.8; (3) a “very low” math
fluency SS of 67, which correlates to a GE of 3.9; and (4) an
“average” applied problems SS of 90, which
correlates to a GE of 6.6. Id. The IEP further noted
R.H.'s poor Algebra I attendance, which prevented him
from “develop[ing] higher order math skills, ” so
R.H.'s mathematics goals in this IEP were “to
correctly borrow in double-digit subtraction[, ] . . .
multiply a double-digit number by a single-digit number[, ] .
. . [and] add fractions” with at least 80% proficiency.
Id. at 42-43.
R.H.'s reading score was in the “low range, ”
showing a “basic ability to read and comprehend
information” and a weakness for decoding unfamiliar
words and sounds. Id. at 43. In particular, R.H.
received (1) a “low” broad reading SS of 76,
which correlates to a GE of 5.2; (2) a “low”
letter-word identification SS of 74, which correlates to a GE
of 4.8; (3) a reading fluency SS of 76, which correlates to a
GE of 5.0; and (4) an “average” passage
comprehension SS of 90, which correlates to a GE of 6.7.
Id. According to the IEP, R.H.'s weakness in
this area “makes it difficult for [him] to read and
process passages.” Id. Thus, R.H.'s
reading goals included correctly decoding unfamiliar words at
his reading level, using context clues to determine the
meaning of those words, and independently reading passages
and using context to make accurate inferences, all with at
least 80% proficiency. Id. at 43-44.
R.H. scored in the “very low range” for written
expression, highlighting weaknesses with syntax, grammar,
handwriting, and particularly with spelling. Id. at
45. According to the WJ-III ACH, R.H. received (1) a
“very low” broad writing SS of 62, which
correlates to a GE of 3.4; (2) a “low” writing
fluency SS of 70, which correlates to a GE of 3.9; (3) a
“low” writing samples SS of 76, which correlates
to a GE of 4.6; and (4) a “very low” spelling SS
of 63, which correlates to a GE of 2.9. Id. The IEP
prescribed goals for R.H. to correctly use spelling rules
during graded assignments and accurately capitalize and
punctuate sentences with at least 80% proficiency.
Id. at 45-46.
IEP's post-secondary transition plan for R.H. was based
on his reported interests as well as the results of his
WJ-III ACH and BRIGANCE E-2 assessments - both administered
on December 18, 2012. Id. at 50. R.H. reported
that he was interested in employment as a mechanic, a
construction worker, and a photographer. Id.
R.H.'s WJ-III ACH results, described above, indicated
that he required additional development of necessary skills
to manage a personal budget. Id. The BRIGANCE E-2
assessment revealed that R.H. prefers an outdoor, noisy
working environment that requires physical energy, use of
hands, and substantial training. Id. Using that
information, the IEP prescribed goals for R.H.'s
post-secondary education, employment, and independent living.
Id. at 51-53. In anticipation of receiving
post-secondary technical training, R.H.'s goal was to
research technical training programs, for which school
officials would provide guidance for one hour during the
year. Id. at 51. To achieve full-time employment,
R.H.'s goal was to conduct information interviews with
mechanics regarding their education and skill requirements,
and the school agreed to assist R.H. with interview practice
for one hour per month. Id. at 52. As for properly
maintaining a budget upon graduating, R.H.'s goal was to
work with teachers for one hour per year to ascertain the
categories of daily living expenses and the average amounts
of each. Id. at 52-53.
the IEP prescribed standardized testing accommodations,
specialized instruction, and transportation services for R.H.
Id. at 47-49. The testing accommodations allowed
R.H. to receive repetition of classroom and testing
directions, to write in his test booklets and use a
calculator for assistance, and to take tests in a separate
setting for an extended duration. Id. at 48.
Moreover, the IEP prescribed ten hours of weekly specialized
instruction for R.H. that should occur “outside of the
general education setting.” Id. at 47. Prior
to this IEP, R.H. received this instruction within general
education classrooms for only five hours per week, but his
failing grades necessitated the change. Id. The IEP
also required that R.H. receive access to the Washington
Metro System (“Metro”) for transportation to and
from school, and it expressly denied R.H. access to extended
school year services. Id. at 49.
School-Administered Psychological Evaluation
the MDT meeting held on December 11, 2012, Ms. Hill requested
that DCPS perform “a comprehensive psychological”
evaluation on R.H. because “there were no evaluations
on [R.H.'s complete educational] file.”
Id. at 24. DCPS obtained Ms. Hill's written
consent for this evaluation on January 18, 2013, id.
at 56, and the evaluation was conducted on February 14, 2013,
id. at 58.
results of this evaluation were released in a report on March
4, 2013, which contained results from a Reynolds Intellectual
Assessment Scale (“RIAS”) and information
gathered from interviews with Plaintiffs and R.H.'s
teachers. Id. R.H.'s RIAS results included a CIX of
72, a VIX of 84, and a NIX of 81 - all of which fall within
the “Low Average” range - and a CMX of 77, which
falls within the “Borderline” range. Id.
at 65-66. These scores indicated that R.H. more effectively
processes verbal information if accompanied by visual
representations, that he requires multi-step directions to be
broken down and repeated, and that learning accommodations
would assist R.H. with initiating and completing assignments.
Id. at 66. This evaluation also obtained interviews
from R.H.'s English and World History teachers.
Id. at 63. R.H.'s English teacher reported that
he “[d]oes not come to class often or turn in homework,
” but when R.H. does attend class, he quickly
understands the content and acts respectfully towards the
teacher. Id. The World History teacher reported that
R.H. is focused when attending class, but he never completes
homework. Id. Both teachers have previously
encouraged R.H. to attend after-school tutorials and have
sent R.H. home with make-up work packets, but he never
attends after-school tutorials and the packets never return
to school. Id.
R.H.'s evaluative interview, he reported that he fails to
regularly attend school either because of illnesses or, more
often, because “he just did not feel like
coming.” Id. He also reported attempting
homework assignments but struggling to complete them without
extra help. Id. R.H. expressed interest in obtaining
one-on-one tutoring but was resistant to staying after school
for tutoring. Id. The evaluator could not reach Ms.
Hill for an interview, but she noted her prior concerns
regarding R.H.'s ability to “get to school”
and the provision of homework assignments to improve his
academic performance. Id. The evaluator also
attempted several times to observe R.H. in class, but each
attempt was unsuccessful “due to [R.H.'s]
inconsistent attendance.” Id. According to the
report's summary, the interviews and R.H.'s scores
indicated that his “difficulty with memory, social
emotional functioning, and academic problems [were]
consistent with learning difficulties associated with [a]
Specific Learning Disability.” Id. at 69.
report recommended that R.H. consult with a social worker or
counselor for social-emotional support relating to his
“motivation, anxiety, and frustration in the classroom,
” and that an attendance plan or behavioral plan would
“assist [R.H.] in getting to school and going to class
consistently.” Id. at 70. It also recommended
teaching strategies to accommodate R.H.'s specific
learning disability, such as providing interactive learning
activities, allowing R.H. to take small breaks from larger
assignments, and applying a multimodal learning approach.
Id. On March 20, 2013, DCPS left a voicemail with
Ms. Hill to schedule a meeting to review the report.
Id. at 32. The administrative record does not
contain a response from Ms. Hill or any other communication
from DCPS regarding such a meeting.
Ms. Hill's August 1, 2013 Request for Additional
August 1, 2013, Plaintiffs submitted a written request for
DCPS to perform four independent educational evaluations
(“IEEs”) of R.H.: a comprehensive psychological
evaluation, an FBA, a speech-language evaluation, and a
vocational level II assessment. Id. at 110, 276. On
September 13, 2013, Plaintiffs' new legal representative,
Nicholas Ostrem, emailed DCPS to assess the status of the
pending IEE request. Id. at 106. That same day, Mr.
Robinson, the LEA representative, responded that he had not
received Plaintiffs' request, but “once [Ms. Hill]
signs the consent[, ] DCPS will complete” the requested
FBA and speech-language assessment. Id. at 105. On
September 17, 2013, Ms. Hill clarified that she also
requested IEEs for the comprehensive psychological evaluation
and the vocational assessment. Id. at 303. She
challenged the comprehensive psychological evaluation from
March 4, 2013, and the vocational assessment from December
18, 2012, both of which DCPS had previously conducted.
Id. During an MDT meeting on October 10,
2013, Ms. Hill, with Mr. Ostrem present, signed a consent
form for DCPS to administer the FBA. Id. at 128.
However, DCPS refused to administer a speech-language
assessment of R.H. before its speech pathologist could
perform a classroom observation “to determine any
possible negative effects [R.H.'s] verbal expression
abilities [were] having on his academic growth[.]”
Id. at 124. The MDT also took note of Ms. Hill's
representation that R.H. had received speech-language
services for a 10-year-old speech impediment and that it
“no longer affect[ed] his communication.”
Id. Indeed, a speech-language evaluation was
conducted on March 9, 2004, which recommended no services
“in the area of speech language.” Id. at
School-Administered Functional Behavior Assessment
the MDT meeting, DCPS called and emailed Mr. Ostrem on
November 25, 2013, to schedule an IEP Team meeting to discuss
the forthcoming FBA's results. Id. at 32, 300.
The results were released in a report dated December 1, 2013.
Id. at 142-45. The meeting was scheduled for
December 19, 2013. Id. at 101. According to the FBA
report, the examiner gleaned information from classroom
observations, teacher questionnaires, an interview with R.H.,
reviews of R.H.'s attendance records and progress
reports, and data from antecedent-behavior-consequence
(“ABC”) charts and Ohio Scales. Id.
report identified R.H.'s truancy as his primary concern
because of its harm to his academic achievement, but the
report noted that “[b]ehaviorally[, ] [R.H.] seems to
be doing well.” Id. at 142. The report
emphasized the results of R.H.'s Ohio Scales assessment,
particularly the problem severity section, which
“measures occurrences and the significance of
problematic behaviors (i.e.[, ] arguing, opposition,
lying, sadness, etc.).” Id. Examinees quantify
the student's behavior on a scale of 0 to 100, with
higher scores indicating more significant behavioral issues.
Id. Teachers gave R.H. an average score of 2.5 out
of 100 for this section: “the lowest average score,
given by teachers, that [the examiner] ha[d] ever
seen.” Id. Meanwhile, R.H. self-scored his
problem severity as 31 out of 100, specifically identifying
anger, anxiety, and depression as his problems. Id.
The report noted that R.H.'s self-reported score was
“clinically significant, ” and that his truancy
was likely related to anxiety and depression, but it further
noted that R.H.'s problems “most often occur
before he arrives to school.” Id.
the report assessed the characteristics of R.H.'s
truancy, opining that it results from his lack of motivation,
depressive symptoms, and poor self-esteem. Id. In
addition, the report identified that R.H.'s homelessness
and Ms. Hill's physical ailments as major environmental
contributors to his truancy. Id. at
143. At school, R.H. has previously received
detention as a consequence for his truancy, but “[he]
is rarely consequenced for behavioral incidents due to his
routine pattern of good behavior.” Id. Ms.
Hill also represented that R.H. receives psychiatric therapy
at Community Connections, where he was diagnosed with
depression and prescribed treatment. Id. According
to the report, therapy appeared to improve R.H.'s
decision-making skills and academic performance, considering
his 0.8 GPA increase while participating in therapy.
analyzing R.H.'s academic problems, the report failed to
uncover “any significant problematic behaviors related
to resistance, defiance, or opposition.” Id.
at 144. Instead, the report concluded that his problems
“ha[ve] been completely related to his truancy, ”
which partly results from depression and lack of motivation.
Id. None of these issues appeared to relate to
environmental factors within the school environment; rather,
the assessment only revealed off-campus contributors -
i.e., homelessness, poverty, and Ms. Hill's
physical ailments - in addition to R.H.'s depression and
lack of motivation. Id. Ultimately, the report
recommended that Plaintiffs schedule a medication evaluation
to determine if R.H. could benefit from a Zoloft prescription
for his depression, that Ms. Hill encourage R.H. not to skip
school to care for her, and that R.H. seek part-time
employment to help his family without sacrificing his
education. Id. at 144-45.
Independently Administered Psychological Evaluation
arranged for an independent comprehensive psychological
evaluation at the District's expense, which occurred on
November 6, 2013. Id. at 147. This IEE garnered
information from interviews with Plaintiffs and teachers,
classroom observations, projective tests, and results from
four assessments: (1) the Wechsler Adult Intelligence Scale
(“WAIS- IV”), which measures cognitive
functioning; (2) the Wechsler Individual Achievement Test
(“WIAT-III”), which measures learning aptitude;
(3) the Beery-Buktenica Developmental Test (“Beery
VMI”), which measures the integration of visual and
motor abilities; and (4) the Behavior Assessment Scale for
Children (“BASC-2”), which measures social and
emotional functioning through survey responses. Id.
at 147-60. Plaintiffs received the results of this evaluation
in a report dated December 18, 2013. Id. at 147. Mr.
Ostrem forwarded the report to DCPS on that same day.
Id. at 101.
to the report, the examiner first interviewed R.H. and Mr.
Cox - R.H.'s previous case manager and current reading
teacher - about his in-class behavior and performance.
Id. at 150. Mr. Cox reported that R.H. is focused in
his five-person reading class, he works well with classmates
and the teacher, he maintains “very high verbal
cognition, but is on a seventh grade reading level, ”
and his attendance improved from the previous year.
Id. R.H. reported significant stress due to his
family's homelessness, causing him to feel anger and
depression. Id. In his interview, R.H. stated that
he hopes to graduate from high school and find work as a
landscaper or mechanic. Id. During classroom
observations, R.H. followed all directions and was
“on-task and focused” for most of class, but he
neither completed every in-class assignment nor arrived to
class with all necessary materials. Id. at 151.
projective tests - the Graphic Projective Technique and Three
Wishes Technique - were also performed in this evaluation.
Id. at 159-60. The Graphic Projective Technique
asked R.H. to draw pictures of a house, a tree, and a person
to “provide a measure of self-perceptions and
attitudes.” Id. at 159. According to the
drawings, R.H. may suffer from depression, anxiety, and low
self-esteem, and he may be defiant and aggressive when
overwhelmed. Id. The Three Wishes Technique
identifies the events that might alleviate anxiety by asking
R.H. to name three wishes he would want to come true.
Id. R.H. wished for (1) more money, (2) all of his
problems to go away, and (3) his mother to walk again.
Id. at 159-60. The examiner noted that the content
of R.H.'s wishes result from his inability “to cope
with the various internal and external stressors” in
his life, and the examiner opined that R.H.'s coping
mechanism may manifest as hyperactivity, impulsivity, and
inattention. Id. at 161.
the report included the results of multiple assessments that
evaluated R.H.'s academic and social intelligence. The
WAIS-IV placed R.H.'s cognitive abilities at the 13th
percentile, which falls in the “extremely low”
range. Id. at 152. According to the WIAT-III, R.H.
received (1) a “below average” oral language SS
of 83, which correlated to an average GE of 6.5 and placed
his oral language abilities better than or equal to 13% of
students his age; (2) a “low” basic reading SS of
62, which correlated to an average GE of 2.6 and placed his
basic reading abilities better than or equal to 1% of
students his age; (3) a “low” written expression
SS of 57, which correlated to an average GE of 2.8 and placed
his writing abilities better than or equal to 0.2% of
students his age; and (4) an “average”
mathematics SS of 73, which correlated to an average GE of
4.8 and placed his mathematics abilities better than or equal
to 4% of students his age. Id. at 153-55. In
addition, the Beery VMI placed R.H.'s integration of
visual and motor abilities in the “below average”
range. Id. at 156. R.H.'s BASC-2 survey reported
that he is in the “clinically significant” range
for depression and anxiety, Mr. Cox's survey reported
that R.H. is in the “at risk” range for
somatization,  and R.H.'s survey indicated
“clinically significant” anxiety and
somatization, as well as an “at risk” level of
depression and sense of inadequacy. Id. at 160.
examiner made several recommendations in the report, some of
which she later clarified in an affidavit for the due process
hearing. See id. at 161-62. In her original report,
the examiner recommended that R.H.'s IEP classify R.H. as
a student with a special learning disability, but she also
recommended including in R.H.'s IEP an “emotional
disturbance” classification. Id. at
161. Additionally, she recommended that R.H.
receive intensive, full-time specialized instruction in a
small class setting. Id. The examiner also believed
that R.H. should be placed in a full-time vocational school
“which offers training in the auto mechanics
trade.” Id. at 161-62. In her affidavit, the
examiner reasoned that R.H.'s low academic scores and
social difficulties would benefit from a trade school that
also remediates academic deficits. Id. at 401. The
examiner next recommended that R.H. receive out-of-school
tutoring and in-school counseling to address his academic and
social difficulties. Id. at 162. Finally, she
recommended that R.H. receive a vocational level II
assessment “to assist with his vocational goals, and
the transition to independent living, ” as well as a
speech-language evaluation to “ascertain if [R.H.] will
require speech and language services in the school
setting.” Id. In her affidavit, the examiner
opined that no evidence suggests that R.H. “has ever
received [v]ocational testing, ” and that a vocational
level II assessment would reveal R.H.'s career aptitude
and the necessity for career exploration. Id. at
December 2013 IEP
the MDT on October 10, 2013, DCPS coordinated with Plaintiffs
to create an attendance plan to address R.H.'s
absenteeism. Id. at 124-25. Ms. Hill attended this
meeting with Mr. Ostrem, R.H.'s sister, and special
education advocate Sharon Millis. Id. at 123. R.H.
did not physically attend, but he telephonically joined a
portion of the meeting. Id. at 125. DCPS also
arranged for several of its representatives to attend this
meeting: Mr. Robinson, in his capacity as the LEA
representative; Eliza Robinson, as R.H.'s special
education teacher and case manager; as well as a social
worker and speech pathologist. Id. at 123. At the
meeting, R.H. reported that he most commonly stayed home
because he either felt ill, needed to care for his sick
mother, lacked a clean uniform, or could not use his Metro
pass after 9:00 a.m. Id. at 124. R.H. reported that
he had received a new Metro pass on October 9, 2013, and DCPS
agreed that R.H. could receive new monthly passes from school
officials in the future. Id. at 124, 131. DCPS also
agreed to allow R.H. to utilize Eastern's laundry
facilities to wash his clothes and recommended that R.H.
obtain new clothes from community charities as Eastern had no
more uniforms to provide. Id. at 131.
current IEP was set to expire on January 10, 2014, see
id. at 40, so his IEP Team agreed to convene an IEP
meeting at 12:00 p.m. on December 19, 2013, id. at
101. Prior to this meeting, DCPS collected progress reports
from R.H.'s teachers, id. at 136-40, and DCPS
administered the FBA described above, id. at 101.
DCPS forwarded the FBA to Plaintiffs on December 5, 2013.
Id. at 310. Plaintiffs also obtained the independent
psychological evaluation, which was described above, on
December 18, 2013. Id.
forwarded the independent psychological evaluation results to
DCPS at 2:07 p.m. on December 18, 2013. In response, DCPS
stated in an email that “another meeting will need to
be scheduled to review the evaluation given it was provided
on such short notice.” Id. at 299. Plaintiffs,
through their attorney, replied that same day, requesting
that the IEP meeting be rescheduled. See id. at 298.
On the morning of the IEP meeting, Plaintiffs' attorney
repeated that request in a voicemail he left with the LEA
representative. See id. One hour before the
scheduled IEP meeting, he again emailed DCPS to reschedule
the meeting because Ms. Hill was also feeling ill.
Id. DCPS finally responded nearly six hours
after the IEP meeting's start time, stating that the
meeting was held on schedule because all necessary members
had committed to attend. Id. The participants
included Mr. Robinson in his capacity as the LEA
representative; one of R.H.'s general education teachers;
a social worker; and Ms. Robinson, who attended the meeting
to interpret R.H.'s evaluation results and to serve as
the team's special education teacher. Id. at
167. DCPS promised to provide Plaintiffs no earlier than
January 19, 2014 with both a copy of the IEP and proposed
dates for an additional meeting to amend the IEP in
accordance with the independent evaluation's results.
Id. at 298. According to DCPS, it would not be able
to convene another IEP meeting to review the independent
evaluation for thirty calendar days. Id.
December 20, 2013, Plaintiffs' attorney admonished DCPS
for conducting the IEP meeting in Ms. Hill's absence and
for failing to include a psychologist to review the
independent evaluation at the meeting. Id. at 310.
His email asked to reconvene the IEP Team during the first
week of January 2014 to amend the IEP, and stated that
“[i]f not, we're just going to file” a
lawsuit. Id. In response, DCPS explained that the
special education office would be closed during the holiday
break and confirmed its intent to provide
dates for an additional IEP meeting to review the independent
evaluation. Id. at 336. However, DCPS later admitted
that it never provided dates pursuant to this promise, and a
subsequent IEP meeting was never held. Hrg. Tr. at 3.
Plaintiffs' attorney replied on December 23, 2013 that he
viewed DCPS' response “as a refusal to convene an
IEP team meeting with [Ms. Hill's] input by” the
current IEP's January 10, 2014 expiration date. AR 336.
the December 2013 IEP itself, it updated R.H.'s annual
goals for his academic areas of concern and included a
post-secondary transition plan. Id. at 169-81. DCPS
first updated R.H.'s mathematics and reading goals from
the results of Form B of the WJ-III ACH, which R.H. took on
December 18, 2013. Id. at 169. According to those
results, R.H.'s math score remained in the “low
range, ” showing that he still “lacks some
foundational math skills.” Id. Specifically,
he obtained (1) a “low” broad math score that
correlated to a GE of 4.7; (2) a “very low”
calculation score that correlated to a GE of 4.1; (3) a
“low” math fluency score that correlated to a GE
of 5.2; and (4) an “average” applied problems
score that correlated to a GE of 6.6. Id. R.H.'s
new mathematics goals were to solve equations and
inequalities “with 75% accuracy[, ] as measured by
quarterly Paced Interim Assessments and observations, ”
and to use properties of real numbers to simplify
calculations. Id. at 169-70.
R.H.'s reading score, it also remained in the “low
range, ” showing the same “basic ability to read
and comprehend information” and the same weakness for
decoding unfamiliar words and sounds as in the January 2013
IEP. Id. at 170. In particular, R.H. Received (1) a
“low” broad reading score that correlated to a GE
of 5.2; (2) a “low” letter-word identification
score that correlated to a GE of 3.9; and (3) a reading
fluency score that correlated to a GE of 6.5.
Id. R.H.'s new reading goals were to
explicitly cite, and draw inferences from, textual evidence
to support his analysis of “what the text says, ”
and to analyze how complex characters develop relationships
throughout the text and advance the plot. Id.
determined R.H.'s new writing score from the results of a
WIAT-III from November 6, 2013. Id. at 171.
Specifically, these results revealed a “low”
written expression SS of 57, which placed R.H.'s writing
abilities greater than or equal to 0.2% of other students his
age, and a “very low” sentence composition SS of
54, which correlated to a GE of 1.5. Id. The IEP
highlighted weaknesses with syntax, grammar, handwriting, and
particularly with spelling. Id. R.H.'s goals for
this area of concern were to develop “experiences or
events using effective techniques, well-chosen details, and
well-structured event sequences, ” and to develop or
strengthen writing by planning, revising, editing, rewriting,
or trying something different. Id.
IEP's post-secondary transition plan collected
information from R.H.'s reported interests and the
results of his WJ-III ACH and BRIGANCE E-2 assessments,
collected on December 18, 2013. Id. at 146, 177.
According to R.H., his functional interests included
“looking for jobs, driving, [and] making a
resume.” Id. at 146. He also expressed
interests in attending community college or vocational
school, as well as interests in learning “[h]ow to work
on cars, how to build stuff, [and] how to work hard.”
Id. Regarding R.H.'s assessment results, his
scores for both the WJ-III ACH and BRIGANCE E-2 were
identical to his respective scores from the January 2013 IEP.
See id. at 177. As for R.H.'s vocational goals,
his new post- secondary education goal was to research
community college programs, for which school officials would
provide guidance for one hour during the year. Id.
at 178. R.H.'s new employment goal was to research
requirements to become a landscaper and review those
requirements with his teacher. Id. at 179. His new
independent living goal was to acquire a driver's license
by studying a driver's education handbook and correctly
answering at least 80% of the questions on a practice test.
Id. at 180. To assist R.H. with the completion of
these goals, DCPS would provide him with access to a computer
for four hours per year to research landscaper requirements
and driver's education websites. See id. at
this IEP retained much of R.H.'s prior testing
accommodations and related instructional services.
Id. at 173-76. Like the January 2013 IEP, R.H.'s
testing accommodations allowed him to receive repetition of
classroom and testing directions, to write in his test
booklets and use a calculator for assistance, and to take
tests in a separate setting for an extended duration.
Id. at 175. This IEP also continued prescribing ten
hours of weekly specialized instruction for R.H.
“outside of the general education setting, ”
id. at 174, and it still denied R.H. access to
extended school year services, id. at 176. However,
the December 2013 IEP deviated from the prior IEP in that it
no longer required DCPS to provide R.H. with access to
transportation services, id., and that it included
as a “special factor” that R.H.'s behavior
did not impede his or others' learning. Id. at
168. On May 16, 2014, Ms. Hill filed an administrative due
process complaint on behalf of R.H. Id. at 192.
Due Process Hearing
process hearing occurred on August 6 and 8, 2014,
id. at 407, during which Plaintiffs both testified
and were represented by counsel, id. at 503-54.
Plaintiffs also arranged for two special education experts -
Ms. Millis and Sharold Smith - to testify on their behalf.
Id. at 557-636, 638-48. Additionally, DCPS proffered
testimony from Mr. Cox, R.H.'s special education teacher
and case manager at Eastern. Id. at 655-736. The
relevant portions of each witness' testimony are
Ms. Hill's Testimony
Ms. Hill's testimony, she reported that R.H. was
prohibited from attending Eastern for the first six weeks of
the 2012-2013 school year because DCPS claimed that he
resided outside of Eastern's district boundary.
Id. at 511. She also testified that R.H. did not
receive home-instruction from any DCPS teachers during that
period. Id. at 512. According to Ms. Hill, R.H. was
permitted to return to Eastern only after she spoke to the
school board. Id. at 511. Once R.H. returned, DCPS
informed Ms. Hill that R.H. would receive a “tag along
[to] help and assist him with his work.” Id.
According to Ms. Hill, no such accommodation ever occurred.
Id. at 515-16.
to the MDT meeting from October 10, 2013, Ms. Hill testified
that she had requested counseling services to address
R.H.'s mental health problems and that DCPS had refused
her request. Id. at 518. She also asked DCPS why it
had discontinued R.H.'s speech-language services without
a speech evaluation, but DCPS responded that it found no need
to continue those services. Id. at 519. Ms. Hill
further testified that R.H.'s attendance plan, which was
developed during that meeting, “worked out for like the
first week[, ] and then when [Plaintiffs] moved[, ] . . .
everything changed.” Id. at 520. According to
Ms. Hill, DCPS informed R.H. in January 2014 that it would no
longer provide him with transportation because he moved
closer to Eastern. Id. at 522. As a result, Ms. Hill
paid $30 per month for R.H. to access the Metro for the
remainder of the 2013-2014 school year. Id.
Ms. Hill's participation in R.H.'s IEP meetings, she
testified that “[she] wanted to take part and advocate
for [R.H.]” Id. at 524. She wanted to discuss
R.H.'s transportation problem and mental health
difficulties for his January 2013 IEP but, for reasons
unknown to the Court, she was unable to attend the meeting.
Id. at 514. For R.H.'s December 2013 IEP, Ms.
Hill testified that DCPS refused her request to reschedule
the meeting for January 10, 2014. Id. at 523-24.
Ultimately, Ms. Hill testified that she did not believe that
Eastern was meeting R.H.'s individual needs. Id.
at 526. She explained that Eastern did not “prepare
[R.H.] for the work market” because it lacked any
vocational programs. Id. at 525. Eastern instead has
an after-school vocational program, but Ms. Hill testified
that “you got to get good grades” to attend.
Id. Ms. Hill also testified that R.H. would benefit
from both independent tutoring and counseling services, and
that R.H. would take advantage of such opportunities if they
became available to him. Id. at 527-28.
asked about the 2012-2013 school year, R.H. testified that he
could not attend Eastern for “some weeks” in the
beginning because DCPS informed R.H. that he
“wasn't in the boundary.” Id. at
535. R.H. also submitted that DCPS did not provide him with
tutoring or home-instruction during that period. Id.
As for the remainder of that school year, R.H. testified that
he used the Metro to arrive at school, as well as a
“free bus[, ] . . . but [he was] not always up to make
the free bus.” Id. at 536. R.H. explained that
Ms. Hill, “and sometimes the school, ” provided
him with access to the Metro throughout that year, but his
attendance suffered because that access was “not
always” provided. Id. R.H. further testified
that he was only enrolled in general education classes that
school year and received no specialized instruction from an
inclusion teacher within those classes. Id. at 537.
asked about his classes during the 2013-2014 school year,
R.H. testified that he was enrolled in at least one special
education course. Id. at 540. Moreover, R.H.
testified that an inclusion teacher assisted him with Algebra
I for two or three class periods each week, but this teacher
assisted the entire class. Id. at 540, 548.
R.H.'s major issues during that school year involved his
school uniform and school transportation. Id. at
538. Regarding R.H.'s uniform, he explained that
“[s]ometimes [it] wasn't clean, [and] sometimes
[he] didn't have the right color to wear.”
Id. R.H. also explained that he could not afford to
pay for public transportation, so DCPS sometimes gave him bus
tokens at the beginning of the school year. Id. at
538-39. However, according to R.H., DCPS discontinued his
transportation service “a little bit before Christmas
break, ” so Ms. Hill provided him with transportation
for the remainder of the school year. Id. at 539.
R.H.'s testimony, he also discussed his vocational needs.
First, he testified that Eastern did not provide any
vocational programs during either school year other than an
after-school program. Id. at 541. He also testified
that DCPS never helped him research community college or
vocational programs, interview mechanics or landscapers
regarding their work requirements, or make progress in
acquiring a driver's license. Id. at 541-42. In
addition, R.H. stated that DCPS never helped him develop
independent-living skills, such as cooking, cleaning, and
laundry. Id. at 542. R.H. clarified during
cross-examination that DCPS did provide him with a laundry
service during the 2013-2014 school year, which he used to
clean his uniform. Id. at 549-50. When asked about
his overall educational needs, R.H. testified that Eastern
did not teach him “anything academically” or help
him “to get a job and start driving.”
Id. at 542- 43. By contrast, R.H. believed that New
Beginnings would be an appropriate placement for him because
it has “the skills you need to survive.”
Id. at 544.