Jones-Herrion v. District of Columbia

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         Under the Individuals with Disabilities Education Act, Defendant District of Columbia Public Schools (DCPS) was required to evaluate seventh-grade student K.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, DCPS could only defend three before an administrative hearing officer. Believing that the DCPS evaluation was deficient, Plaintiffs, the parents of K.H., asked DCPS to fund an Independent Educational Evaluation which would include all five assessments K.H. was supposed to receive. In the course of litigation, DCPS offered to fund independent assessments for only those two assessments which DCPS itself failed to perform. The question now is whether the offer to fund only two independent assessments is enough to moot Plaintiffs' request.

         For the reasons described below, the Court finds that the inability of DCPS to defend its own evaluation entitles K.H. to a full Independent Education Evaluation, including all relevant assessments, not just two 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 K.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 K.H.

         In the fall 2017, K.H. was a seventh-grade student at Brookland Middle School in the District of Columbia. See Admin. R. (AR) [Dkts. 7-8] at 20. In October of that year, Plaintiffs asked DCPS to evaluate K.H. to determine if she had a disability and was eligible for special education services. Id. at 80. DCPS agreed to assess K.H. in five areas: assistive technology; occupational therapy; speech/language; functional behavior; and comprehensive psychological. See Id. at 91. Ultimately, K.H. received a comprehensive psychological assessment, an occupational therapy assessment, a speech and language assessment, and a functional behavior assessment. See Id. at 93-177. However, K.H. received no assessment related to assistive technology. See Id. at 178-85. Based on the four assessments she did receive, DCPS finalized its evaluation of K.H. in March 2018 and determined that she was not eligible for special education services. Id. at 184-85.

         Plaintiffs disagreed with the result of the evaluation by DCPS and asked it to fund an IEE for K.H. Id. at 187-88. Specifically, they asked DCPS to fund independent assessments mirroring the four assessments already performed by DCPS, and for DCPS either to perform an assistive technology assessment or to fund such an independent assessment. Id. After brief consideration, DCPS denied Plaintiffs' request. Id. at 197. In April 2018, Plaintiffs filed an administrative complaint seeking an order requiring DCPS to fund an IEE for K.H. Id. at 199-204.

         In September 2018, as the parties were preparing for their administrative hearing, DCPS determined that the occupational therapist who had conducted K.H.'s occupational therapy assessment would be unavailable to defend the validity of the assessment. See Id. at 527. DCPS thus offered to fund an IEE which included both an occupational therapy assessment and an assistive technology assessment for K.H. Id.^[1] However, DCPS continued to defend the validity of its psychological, speech and language, and functional behavior assessments and declined to fund assessments that it viewed as duplicative.

         The administrative hearing was held on October 3, 2018, and the Hearing Officer issued his opinion on October 17, 2018. See generally HOD, AR at 3-19. As relevant to this case, the Hearing Officer determined that DCPS properly conducted the psychological, speech and language, and functional behavior assessments, and that DCPS had satisfactorily performed its evaluation. Id. at 17-18. Although the Hearing Officer acknowledged that DCPS had not defended its occupational therapy assessment, he concluded that Plaintiffs' complaint in this regard was ...