MEMORANDUM OPINION
Amit
P. Mehta, United States District Judge.
In this
action brought under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§
1400 et seq., Plaintiff Theresa Hart advances two
claims. In Count I of her Complaint, she asserts that the
hearing officer “failed to consider expert testimony
that a comprehensive psychological assessment was warranted
for [her son] S.H. since February 2015.” Compl., ECF
No. 1, at 7-8. In Count II, Plaintiff contends that
“Defendant's failure to conduct a full triennial
evaluation of S.H. for nearly three years was a substantive
denial” of a “free appropriate public education,
” or “FAPE.” Id. at 9. Before the
court are the parties' cross-motions for summary
judgment. See Pl.'s Mot. for Summ. J., ECF No. 9
[hereinafter Pl.'s Mot.]; Def.'s Opp'n to
Pl.'s Mot. & Cross-Mot. for Summ. J., ECF No. 10
[hereinafter Def.'s Cross-Mot.]. After a thorough review
of the record, and applying the controlling standard of
review, see Z.B. v. District of Columbia, 888 F.3d
515, 523 (D.C. Cir. 2018), the court affirms the decision of
the hearing officer. Accordingly, the court denies
Plaintiff's Motion for Summary Judgment and grants
Defendant's Cross-Motion for Summary
Judgment.[1]
I.
A.
Plaintiff
frames her first claim in largely procedural terms. She asks
the court to “(1) rule that the hearing officer erred
in dismissing Dr. Nelson's expert testimony without any
reason and (2) find that a comprehensive psychological
assessment was warranted for S.H. since February 2015 because
of his excessive absenteeism.” Pl.'s Mot., Mem. of
P. & A. in Supp. of Mot. for Summ. J. [hereinafter
Pl.'s Mem.], at 8. The court agrees with Plaintiff that
the hearing officer appears not to have considered Dr.
Nelson's expert opinion that S.H. should have received a
new psychological evaluation as part of his triennial
reevaluation in February 2015. Compare
Administrative R., ECF No. 8 [hereinafter AR], at 14-15
(hearing officer's finding), with AR 414- 15,
416, 447 (testimony of Dr. Nelson). Although Defendant argues
that the hearing officer considered and rejected Dr.
Nelson's opinion, see Def.'s Cross-Mot.,
Mem. of P. & A. in Supp. of Def.'s Cross-Mot., ECF
No. 10-1 [hereinafter Def.'s Opp'n], at 11-13,
nothing on the face of the Hearing Officer Determination
(“HOD”) supports that conclusion. The hearing
officer ought to have acknowledged Dr. Nelson's testimony
and factored it into his decision-making. See McLean v.
District of Columbia, 264 F.Supp.3d 180, 185-86 (D.D.C.
2017) (finding error in hearing officer's failure to
“give any consideration to [the plaintiff's
experts'] professional opinions regarding [the
child's] eligibility and need for special
education”).
That
gap in reasoning does not, however, compel the factual
finding that Plaintiff seeks: that a comprehensive
psychological examination was warranted as part of S.H.'s
February 2015 triennial evaluation. The IDEA does not mandate
that a public agency administer additional testing as part of
a reevaluation. See 20 U.S.C. § 1414(c)(4); 34
C.F.R. § 300.305(d); see also Z.B., 888 F.3d at
523 (“To be sure, [the individual educational plan
(“IEP”)] evaluation does not always require a
school to conduct additional testing.”). Thus, S.H. was
not statutorily entitled to a new comprehensive psychological
assessment.[2] Whether he should have received one is
therefore a question of fact. The record contains conflicting
evidence on that score. As noted, Dr. Nelson recommended a
new evaluation. On the other hand, Latisha Chisholm, an
expert in special education programming and placement and an
expert in social work who taught S.H., testified that upon
classification of S.H. as a student with emotional
disturbance on February 6, 2015, no additional psychological
testing was warranted to confirm that diagnosis. AR 555-57,
559, 574. It is not the province of the court to re-weigh
this competing evidence. That is best done by the hearing
officer, who heard all the testimony. Thus, this court cannot
make the affirmative finding that Plaintiff seeks and, at
most, would remand this matter for the hearing officer to
take account of Dr. Nelson's opinion. See Reid ex
rel. Reid v. District of Columbia, 401 F.3d 516, 526
(D.C. Cir. 2005); McLean, 264 F.Supp.3d at 186.
B.
The
court declines, however, to order a remand because to do so
would be futile. Even if the hearing officer were to find
that S.H. should have received a new comprehensive
psychological examination, the record does not support a
finding that such an error constituted denial of a FAPE. The
failure to conduct additional testing is considered a
procedural violation under the IDEA. See Z.B., 888
F.3d at 524 (“[T]he failure to conduct an adequate
functional behavioral assessment is a procedural
violation that can have substantive effects . . .
.” (citing R.E. v. NYC Dep't of Educ., 694
F.3d 167, 190 (2d Cir. 2012) (emphasis added)). A procedural
violation “will constitute a denial of a [FAPE] only if
it ‘results in loss of educational opportunity' for
the student.” Leggett v. District of Columbia,
793 F.3d 59, 67 (D.C. Cir. 2015) (alteration omitted)
(quoting Lesesne ex rel. B.F. v. District of
Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)). A
procedural violation gives rise to a substantive
violation of the IDEA only if the procedural deficiency
“(i) [i]mpeded the child's right to a FAPE; (ii)
[s]ignificantly impeded the parent's opportunity to
participate in the decision-making process regarding the
provision of a FAPE to the parent's child; or (iii)
[c]aused a deprivation of educational benefit.”
McLean, 264 F.Supp.3d at 184 (alterations in
original) (quoting 34 C.F.R. § 300.513(a)(2)). Thus, the
“key inquiry regarding an IEP's substantive
adequacy is whether, taking account of what the school knew
or reasonably should have known of a student's needs at
the time, the IEP it offered was reasonably calculated to
enable the specific student's progress.”
Z.B., 888 F.3d at 524.
Here,
Plaintiff makes no serious attempt to show how the absence of
a comprehensive psychological examination resulted in a
“loss of educational opportunity” for S.H.
See Pl.'s Mem. at 8-12. Notably, Plaintiff does
not challenge the IEP developed for S.H. in February 2015, or
later IEPs, as deficient in any particular way. See
Lesesne, 447 F.3d at 834 (concluding that the
plaintiff-parent's “claims [fell] short on the
merits” because plaintiff “made no effort to
demonstrate” that the child's education was
affected by any procedural violations the school might have
committed). The closest Plaintiff comes to doing so is by
pointing out Dr. Nelson's testimony that a new assessment
would have shown “the stressors that are impacting
[S.H.] and his ability to get to school, ” thereby
allowing school authorities to “devise interventions
that are going to be helpful to the young person in getting
him to school.” Pl.'s Mem. at 5 (quoting AR 416).
But that testimony is simply too generic to be of much
probative value in determining whether a new evaluation would
have translated into actual educational opportunities for
S.H. Plaintiff's counsel appeared to concede as much at
the hearing. When directly asked how new psychological
testing would have made a difference for S.H., counsel
responded: “[W]e're not exactly sure what would
have been done in 2014 because absent having a time machine
no one could know what would have been needed in 2014.”
AR 615-16. That answer is telling. Neither before the hearing
officer nor this court has Plaintiff articulated any
connection between the lack of a new psychological evaluation
and any purported deficiencies in the February 2015 IEP
developed for S.H.
Furthermore,
other record evidence strongly suggests that a new
comprehensive psychological examination would not
have supplied material information that S.H.'s evaluators
already did not possess. See Z.B., 888 F.3d at 525
(finding error in the district court's failure to
“address what DCPS would have known had it met its own
obligation to evaluate” the student and noting that
“it is not clear from the proceedings below whether
DCPS would have learned anything more or different”).
Based on the evaluation she conducted in August 2017, which
Defendant had authorized the prior month, AR 259-60, Dr.
Nelson diagnosed S.H. as suffering from ADHD and
“emotional disturbance, ” which she described to
be an “impulsivity disorder, ” AR 418; see
also AR 268 (specifying DSM-V diagnosis as
“Unspecified Disruptive, Impulse Control
Disorder” and “Attention-Deficit/Hyperactivity
Disorder”). She testified that S.H. is “a young
person who is not in class to make progress because of his
emotional disability and because of his ADHD.” AR 422.
But S.H.'s prior psychological assessment in 2011 had
recognized S.H. as having ADHD, and S.H.'s triennial
evaluators understood that condition, AR 48, 82,
85.[3]
And, in connection with S.H.'s triennial assessment in
February 2015, S.H.'s evaluators classified him as having
“ED”- emotional disturbance-without conducting a
psychological examination. AR 82; see also AR 440
(testimony from Dr. Nelson agreeing with “ED”
classification). Thus, new psychological testing would not
have alerted S.H.'s triennial evaluators to a different
diagnosis. Additionally, Defendant did conduct some new
assessments in connection with the triennial evaluation to
provide an updated picture of S.H.'s educational needs.
In December 2014, Defendant prepared a new Functional
Behavior Assessment. AR 50-53. That Assessment, which
included an interview of S.H., described him as
“oppositional-defiant, disruptive, and easily
distracted resulting in multiple suspensions, ” AR 50,
and recommended the development of a “[B]ehavior
[I]ntervention [P]lan, ” AR 53. That Behavior
Intervention Plan was completed on February 6, 2015, and
offered a host of strategies to address S.H.'s
“targeted behaviors, ” including “mood
instability, ” “emotional disengagement, ”
“irritability, ” “distractibility, ”
and “defiance.” AR 80. These are the same types
of behaviors that Dr. Nelson identified in her psychological
assessment. AR 261-70; 418-19. In short, there is good reason
why Plaintiff has not cited any different information that a
comprehensive psychological examination would have supplied
about S.H. in February 2015: there appears to be none.
In sum,
even if Defendant did commit a procedural violation by not
ordering a new comprehensive psychological examination,
Plaintiff has offered no reason to believe that such an error
abridged S.H.'s substantive rights under the IDEA. A
remand therefore is unwarranted, and the court will grant
judgment on Count I in favor of Defendant.
II.
Plaintiff's
second claim is a variant on her first. As noted, Defendant
authorized a private psychological assessment of S.H. in July
2017, which Dr. Nelson completed in early August 2017.
Plaintiff contends that Defendant's “failure to
reevaluate for over two years is a substantive denial of FAPE
because that delay denies parents their substantive right to
monitor a child's progress on an IEP through continual
evaluations.” Compl. ¶ 54. In other words,
Plaintiff argues that the continued failure to
psychologically reassess S.H. in the years after the
triennial assessment constitutes a separate, actionable
denial of a FAPE. See Mem. of P. & A. in Supp.
of Pl.'s Opp'n to Def.'s Cross-Mot. for Summ. J.
& Reply to Def.'s Opp'n, ECF No. 13, at 9
(“To be clear . . ., this claim originates from
DCPS's action and inaction in conducting a triennial
evaluation for S.H. in February 2015. . . . Ms. Hart's
claim, however, does not end at that time. Each day that DCPS
failed to perform a necessary component of S.H.'s
triennial evaluation, DCPS continued its ongoing violation of
the IDEA.”).
Plaintiff's
claim is an odd one. If the court had found, as to Count I,
that the failure to test S.H. anew in February 2015
constituted a substantive violation of the IDEA, then that
finding would hold true not just for the February 2015 IEP,
but in all likelihood for the following years, too, because
S.H.'s future IEPs also would not have been informed by a
current psychological evaluation. But, in that ...