United States District Court, District of Columbia
LASHELLE JONES-HERRION and ERIC HERRION, SR., parents of the minor child K.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 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'
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.
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 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.
Evaluation of K.H.
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.
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.
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. 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.
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