FULLMORE v. DISTRICT OF COLUMBIA

Filing 41

MEMORANDUM AND OPINION re: Plaintiff's 35 Motion for Summary Judgment and Defendant's 36 Cross Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 3/29/2016. (tcr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNIQUE FULLMORE,
Plaintiff,
v.

Case No. 13-cv-00409 (CRC)

DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Unique Fullmore alleges that the District of Columbia Public Schools (“DCPS”)
denied her son D.F. a free appropriate public education (“FAPE”) in violation of the Individuals
with Disabilities Education Act (“IDEA”) by failing to timely provide him a psychiatric
evaluation after she requested one on August 7, 2012, and that the delay entitles her son to a
compensatory education award. In May 2014, the Court held that DCPS’s authorization of an
independent psychiatric evaluation on October 23, 2012 did not render the case moot—as DCPS
had argued—because the delay between Fullmore’s request for and the authorization of the
evaluation could have constituted a denial of a FAPE entitling D.F. to compensatory education.
See Mem. Op., ECF No. 24. The Court thus remanded the case to a Hearing Officer to
determine (1) “whether DCPS denied D.F. a FAPE when it failed to provide an independent
psychiatric evaluation until months after Plaintiff’s original August 7, 2012 request,” and (2) “if
so, whether to grant D.F. compensatory education to provide the educational benefits that likely
would have accrued from special education services the school district should have supplied in
the first place.” Order, ECF No. 27 (citing Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C.
Cir. 2005)).

I.

Background

The Court assumes familiarity with the facts underlying this dispute as laid out in the
Memorandum Opinion of May 9, 2014. See Mem. Op., ECF No. 24. Following the Court’s
remand in August 2014, the Hearing Officer determined that DCPS did not deny D.F. a FAPE
because Fullmore did not meet the predicate requirement for obtaining an independent evaluation
of disagreeing with an evaluation previously provided by DCPS, and because, even if Fullmore
had been entitled to an independent psychiatric evaluation of her son, the delay before DCPS
authorized the independent evaluation was not unnecessarily long. See Hr’g Officer
Determination, Oct. 17, 2014, Admin. R. 15–17, ECF No. 34-1. Both parties now move for
summary judgment.
II.

Standard of Review

In the district court, “a party challenging [an] administrative determination must . . . take
on the burden of persuading the court that the hearing officer was wrong.” 1 Reid ex rel. Reid v.
Dist. of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d
884, 887 (D.C. Cir. 1988)) (internal quotation mark omitted). “The Court may not substitute its
own views for those of the Hearing Officer,” Kareem ex rel. R.D. v. Dist. of Columbia, 374 F.

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Fullmore contends that the District should bear the burden of persuasion for reasons
presented in a motion she made below to sanction the District for “its failure to provide access to
records” showing that D.F.’s “performance in school greatly improved” beginning in January
2013. Admin. R. 255; see also Pl.’s Mot. Summ. J. 17. But Fullmore offers no legal authority
for the proposition that such a failure should result in a burden shift. See Admin. R. 259–60
(contending, without providing support, only that “[a] minimal remedy would shift the burden of
proof to DCPS, but that remedy would be incomplete, because it would empower the holder of
the records to reveal only those records helpful to its case” and “[t]hat was not the intent of
Congress when it guaranteed parents access to records,” id. at 259). Because Fullmore has
provided no authority for this position, and the Court can find none, it will apply the burden of
proof standard articulated in Reid.
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Supp. 2d 84, 89 (D.D.C. 2005), but accords the officer “less deference . . . than is the case in
typical administrative proceedings,” Shank ex rel. S.S. v. Howard Road Acad., 585 F. Supp. 2d
56, 64 (D.D.C. 2008) (citing Kerkam, 862 F.2d at 887). The IDEA requires courts to examine
“the records of the administrative proceedings” as well as “additional evidence at the request of a
party.” 20 U.S.C. § 1415(i)(2)(C)(i)–(ii). Based on a preponderance of the evidence, the Court
then “grant[s] such relief as the Court determines is appropriate.” Id. § 1415(i)(2)(C)(iii).
III.

Analysis

On remand, the Hearing Officer determined that DCPS did not deny D.F. a FAPE by
failing to provide him an independent psychiatric evaluation until October 23, 2012 following
Fullmore’s August 7, 2012 request.2 See Hr’g Officer Determination 15–17. The Officer gave
two reasons for his decision—first, that a parent has a right to an independent educational
evaluation at public expense only if she disagrees with an evaluation already obtained by the
public agency, and here, “there had been no prior DCPS evaluation with which [Fullmore]
disagreed,” id. at 16 (citing 34 C.F.R. § 300.502(b)); and second, that Fullmore did not actually
request an independent psychiatric evaluation until October 10, 2012, and the 13-day period
before the District provided authorization for the evaluation on October 23 did not constitute
“unnecessary delay,” id. (quoting 34 C.F.R. § 300.502(b)(2)).
In her motion for summary judgment and opposition to the District’s cross-motion for
summary judgment, Fullmore contends that the failure to provide an independent psychiatric
evaluation sooner harmed D.F. by delaying the diagnosis and medication prescriptions he
ultimately obtained through an independent evaluation in December 2012—and which he needed

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The Hearing Officer used August 9, 2012 as the date of Fullmore’s request because
telephone line problems prevented the District from receiving the faxed letter until that date.
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to improve his performance at school—and that to remedy this harm, the District should award
DF compensatory education. 3 See Pl.’s Mot. Summ. J. 10–11, 13, 15; Pl.’s Opp’n Def.’s CrossMot. Summ. J. & Reply Supp. Mot. Summ. J. (“Pl.’s Opp’n & Reply”) 2–3, 6–7. The District
counters that the IDEA does not impose a certain timeframe for performing such evaluations, but
rather requires only that they be conducted within a “reasonable period of time” and “without
undue delay.” Def.’s Cross-Mot. Summ. J. & Opp’n Pl.’s Mot. Summ. J. (“Def.’s Cross-Mot.”)
15, 17 (quoting Smith v. Dist. of Columbia, No. 08-2216, 2010 WL 4861757, at *3 (D.D.C. Nov.
30, 2010)). Moreover, the District urges, any unreasonable delay would constitute—at most—a
procedural violation, which can support an IDEA claim only where it “affected the student’s
substantive rights.” Id. at 15 (quoting Lesesne ex rel. B.F. v. Dist. of Columbia, 447 F.3d 828,
834 (D.C. Cir. 2006)) (emphasis omitted) (internal quotation mark omitted). And according to
the District, D.F.’s substantive rights were not affected. It reasons that the IEP following the
December 2012 independent evaluation prescribed the same specialized instruction and
behavioral supports as did D.F.’s previous IEPs—which predated Fullmore’s August 2012
request for reevaluation—and that the record shows that D.F.’s behavior did not improve
following the evaluation: He was suspended in February and March 2013 for a total of six days,

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Fullmore also contends that DCPS should have conducted a psychiatric evaluation itself
as part of the broader reevaluation it performed in the fall of 2012 at her request, and that DCPS
“should not [get] credit . . . for failing to perform a necessary assessment for 2.5 months, then
putting the burden of the assessment on the parent, only after she filed the complaint.” Pl.’s
Opp’n & Reply 3. But regardless of whether DCPS should have conducted the evaluation itself
or whether its authorization of the independent evaluation was unnecessarily delayed, Fullmore
would still have to demonstrate that those failures led to a deficit in D.F.’s education, see
Lesesne ex rel. B.F. v. Dist. of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006); Reid, 401 F.3d at
523, and as will be discussed below, Fullmore has not demonstrated that the delay between her
request for a psychiatric evaluation and the performance of the evaluation on balance harmed
D.F.
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and he was arrested in April 2013. Id. (citing Admin. R. 394, 414–15). Finally, the District
echoes the Hearing Officer’s finding that Fullmore was not entitled to an independent evaluation
and that D.F. received the independent evaluation within a reasonable period of time. Id. at 16–
17.
Whether or not the Hearing Officer is correct that Fullmore was not entitled to an
independent evaluation or that the delay was insufficient to support denial of a FAPE, the Court
finds again that Fullmore’s evidence fails to support a conclusion that DCPS denied D.F. a
FAPE. Just as prior to the remand, Fullmore’s sole explanation continues to be that DCPS
denied D.F. a FAPE by failing to perform (or, presumably, to authorize) a psychiatric evaluation
sooner, which would have allowed D.F. to begin taking the medication he was eventually
prescribed sooner, leading to improved behavior and sustained ability to access the curriculum.
See Pl.’s Mot. Summ. J. 14–15. But the evidence she offers does not support this contention.
While she points to progress reports from the spring of 2013 and the fall of 2014 showing some
improvement in grades and some ability to participate in sessions devoted to behavior
improvement, see Pl.’s Mot. Summ. J. 14 (citing Admin. R. 120, 122, 127, 155–59), her own
testimony contradicts the notion that D.F.’s concentration and behavior improved overall due to
the psychiatric evaluation and new medication. During the remand hearing, Fullmore testified
that she observed improvement in her son’s focus and behavior following the evaluation. See
Admin. R. 389–92. But she also testified that D.F. was suspended twice—in February and
March 2013—and arrested in April 2013, and that following the arrest, D.F.’s diagnosis and
medication were changed. See Admin. R. 398, 415. In other words, the medication prescribed
as a result of the psychiatric evaluation would not account for any progress beyond April 2013,
such as that she claims to have observed during the fall of 2014. In addition, Fullmore recalled

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testifying at the first administrative hearing, following her initial complaint, that D.F. “had made
no academic progress . . . during the 2012-2013 school year” and “had [not] made any social or
emotional progress, behavioral progress” either. 4 Admin. R. 398.
Because the Court cannot conclude from the record before it that the psychiatric
evaluation led to any improvement in D.F.’s behavior or sustained access to the curriculum,
Fullmore has not demonstrated that the delay between her request for and DCPS’s authorization
of the independent psychiatric evaluation constituted a denial of a FAPE. Accordingly, Fullmore
has failed to demonstrate that D.F. is entitled to compensatory education. See Reid, 401 F.3d at
523 (defining compensatory education as involving “discretionary, prospective, injunctive relief
crafted by a court to remedy . . . an educational deficit created by an educational agency’s failure
over a given period of time to provide a FAPE to a student” (quoting R.G. ex rel. G. v. Fort
Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003))). The Court will therefore deny
Fullmore’s motion for summary judgment and grant the District’s motion for summary
judgment. See Lesesne, 447 F.3d at 832 (affirming a grant of summary judgment to DCPS
where the plaintiff “failed to show that” her minor child “had been harmed by any procedural
violations DCPS might have committed”); id. at 834 (finding no denial of a FAPE where the

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Fullmore also offers the testimony of Dr. Ida Jean Holman, a self-described expert in
development of compensatory education plans. Though the Hearing Officer did not qualify Dr.
Holman as an expert, he allowed her to testify. She averred that the medication must have
improved D.F.’s behavior because his scores in school improved during the school year
following the year he was on the medication. Admin. R. 444. But that academic year, 20132014, began long after D.F. stopped taking the medication he was prescribed as a result of the
evaluation. And Dr. Holman based her testimony only on D.F.’s school records and statements
from his teachers rather than on any direct observations she made of him following the
psychiatric evaluation. The Court therefore finds this testimony of minimal persuasive weight or
relevance.
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plaintiff failed to demonstrate that her son’s education was affected by any alleged delay in
providing services guaranteed by the IDEA).
IV.

Conclusion

For the foregoing reasons, Plaintiff’s motion for summary judgment will be denied and
Defendant’s motion for summary judgment will be granted. An order accompanies this
memorandum opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date:

March 29, 2016

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