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Herrion v. District of Columbia

United States District Court, District of Columbia

October 10, 2019

ERIC HERRION, SR. and LASHELLE JONES-HERRION, parents of the minor child M.H., Plaintiffs,



         Under 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' request.

         For the 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.

         I. BACKGROUND

         A. Statutory Framework

         The 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. §§ 1412(a)(4), 1414(d)(1)(B).

         Although 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.

         If a 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).

         More 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.

         B. Evaluation of M.H.

         In the 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.

         Plaintiffs 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.

         The 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.

         Plaintiffs 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 ...

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