United States District Court, District of Columbia
ERIC HERRION, SR. and LASHELLE JONES-HERRION, parents of the minor child M.H., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
the Individuals with Disabilities Education Act, Defendant
District of Columbia Public Schools (DCPS) was required to
evaluate 13-year-old student M.H. to determine if she had a
disability and was eligible for special education services.
Of the five assessments DCPS agreed to include as part of its
evaluation, DCPS performed only four. Of those four, an
administrative hearing officer found that only three had been
properly performed. Believing that the DCPS evaluation was
deficient, Plaintiffs, the parents of M.H., asked DCPS to
fund an Independent Educational Evaluation which would
include all five assessments. While DCPS initially refused
altogether, it has since offered to fund independent
assessments for those two assessments which DCPS itself
failed to properly perform, and Plaintiffs have taken DCPS up
on that offer. The question now is whether those two
independent assessments suffice to moot Plaintiffs'
reasons described below, the Court finds that the inability
of DCPS to defend its own evaluation entitles M.H. to a full
Independent Education Evaluation, including all relevant
assessments. Accordingly, the Court will grant
Plaintiffs' motion for summary judgment and deny the
cross motion filed by DCPS.
Individuals with Disabilities Education Act of 2004 (IDEA),
20 U.S.C. § 1400 et seq., aims to ensure that
“all children with disabilities have available to them
a free appropriate public education that emphasizes special
education and related services designed to meet their unique
needs and prepare them for further education, employment, and
independent living.” Id. § 1400(d)(1)(A).
Under IDEA, schools must promptly identify, locate, and
evaluate every child with a disability who resides in the
school district who may require special education and related
services. Id. § 1412(a)(3)(A). Once a disabled
child is identified, the child's parents, teachers,
school officials, and other professionals collaborate to
develop an individualized education program (IEP) to meet the
child's unique needs. See Id. §§
IDEA is a federal statute that applies nationally, the Court
describes it here as it affected Plaintiffs. The process
kicks off when the “local education agency, ” in
this case DCPS, performs an “initial evaluation”
to determine if a child has a qualifying disability.
Id. § 1414(a)(1). In conducting the evaluation,
DCPS must use “a variety of assessment tools and
strategies to gather relevant functional, developmental, and
academic information, ” and the child must be assessed
“in all areas of suspected disability.”
Id. § 1414(b). No. “single measure or
assessment” may be used “as the sole criterion
for determining whether a child is a child with a
disability.” Id. This evaluation, and any
subsequent re-evaluation, forms the basis for identifying the
child's needs and the requirements of the child's IEP
to meet those needs and support her educational development.
parent of a student is dissatisfied with DCPS'
“identification, evaluation, or educational placement
of the child, or the provision of a free appropriate public
education to such child, ” id. §
1415(b)(6), IDEA entitles them to present their arguments in
an “impartial due process hearing.” Id.
§ 1415(f). At that hearing, the parties may present
evidence and expert testimony about the child's
educational and functional needs. Id. §
1415(f), (h). After the hearing, an independent hearing
officer issues a Hearing Officer Determination (HOD), which
determines whether DCPS denied the student a free appropriate
public education (FAPE) and, if so, orders an appropriate
remedy. Id. § 1415(f)(3)(E); see also B.D.
v. District of Columbia, 817 F.3d 792, 798 (D.C. Cir.
2016). Any party aggrieved by the hearing officer's
determination may bring a civil action in state or federal
court. 20 U.S.C. § 1415(i)(2).
specifically, parents such as M.H.'s who disagree with an
evaluation by DCPS may examine all the records a school
possesses concerning their child and obtain their own
independent education evaluation (IEE) for consideration.
Id. § 1414(b). That IEE must be publicly funded
unless DCPS can demonstrate to an administrative hearing
officer “that its evaluation [was] appropriate.”
34 C.F.R. § 300.502(b). “IDEA thus ensures parents
access to an expert who can evaluate all the materials that
the school must make available, and who can give an
independent opinion.” Schaffer ex rel. Shaffer v.
Weast, 546 U.S. 49, 60-61 (2005). “They are not
left to challenge the government without a realistic
opportunity to access the necessary evidence, or without an
expert with the firepower to match the opposition.”
Id. at 61.
Evaluation of M.H.
fall of 2017, M.H. was a thirteen-year-old student at
Brookland Middle School in the District of Columbia.
See Admin. R. (AR) [Dkts. 7-8] at 20. DCPS first
evaluated M.H. in 2012, determined that she was a child with
a disability, and developed an IEP for her. Id. at
401-09. That IEP was most recently modified in May 2017.
Id. at 412-420. In October 2017, Plaintiffs, the
parents of M.H., asked DCPS to re-evaluate M.H. to determine
if changes to her special education services were necessary.
Id. at 118-19. DCPS agreed to the re-evaluation and
to assess M.H. in five areas: assistive technology;
occupational therapy; speech/language; functional behavior;
and comprehensive psychological. Id. at 435.
Ultimately, M.H. received a comprehensive psychological
assessment, an occupational therapy assessment, a speech and
language assessment, and a functional behavior assessment.
See Id. at 465-71. However, M.H. received no
assessment related to assistive technology. Based on the four
assessments she did receive, DCPS finalized its evaluation of
M.H. in March 2018 and revised her IEP. Id. at
476-98. As part of its evaluation, DCPS also concluded that
M.H. did not require the use of assistive technology devices.
Id. at 477.
disagreed with the result of DCPS' evaluation and asked
DCPS to fund an IEE for M.H. Id. at 472.
Specifically, they requested funding for independent
assessments mirroring the four assessments already performed
by DCPS, and for DCPS either to perform an assistive
technology assessment itself or fund an independent
assessment. Id. After brief consideration, DCPS
agreed to amend that speech/language assessment for M.H. but
otherwise declined to fund assessments that it viewed as
duplicative. Id. at 500. In April 2018, Plaintiffs
filed an administrative complaint seeking an order requiring
DCPS to fund an IEE for M.H. Id. at 309-20.
Plaintiffs also alleged that DCPS had failed to implement
M.H.'s 2017 IEP properly during the 2017-18 school year
and sought compensatory education. Id. In May 2018,
DCPS filed its own administrative complaint seeking to defend
its evaluation. Id. at 502, 505. Notwithstanding, in
June 2018, DCPS offered to fund an independent assistive
technology assessment and 80 hours of tutoring as
compensatory education. Id. at 375-77.
administrative hearing was held on June 12, July 5, and
September 21, 2018, and the Hearing Officer issued his
opinion on September 26, 2018. See generally HOD, AR
at 1-21. As relevant to this case, the Hearing Officer
determined that DCPS properly conducted the speech and
language, occupational therapy, and functional behavior
assessments, but that DCPS had improperly performed the
psychological assessment and failed to perform the assistive
technology assessment. Id. The Hearing Officer thus
concluded that M.H. was entitled to publicly funded
psychological and assistive technology assessments, and
ordered the former, which DCPS had not already offered to
fund. Id. at 14-17. The Hearing Officer also
concluded that M.H. was not entitled to independent
assessments mirroring those assessments which DCPS had
properly performed. Id. Finally, the Hearing Officer
concluded that DCPS had failed to implement M.H.'s IEP
during the 2017-18 school year and, based entirely on the
recommendation of DCPS, ordered 80 hours of tutoring as
compensatory education. Id. at 18-20.
procured an independent assistive technology assessment for
M.H. in November 2018, and an independent comprehensive
psychological assessment in March 2019. See
Def.'s Reply to Pls.' Opp'n to Def.'s Cross
Mot. for Summ. J. (Def.'s Reply) [Dkt. 17], Exs. 1-2