RICHARDSON et al v. DISTRICT OF COLUMBIA
MEMORANDUM OPINION re: Plaintiff's 10 Motion for Summary Judgment and Defendant's 12 Cross-Motion for Summary Judgment. See the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 09/19/2017. (lcapm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DISTRICT OF COLUMBIA,
JASMIN RICHARDSON, et al.,
Case No. 16-cv-1786 (APM)
Plaintiff Jasmin Richardson filed suit under the Individuals with Disabilities Education Act,
20 U.S.C. § 1400 et seq., to seek review of a Hearing Officer’s determination that Defendant District
of Columbia correctly concluded that her minor son, C.S., did not have a qualifying disability in
2015, despite subsequent testing that confirmed C.S. exhibits symptoms consistent with at least one
disability recognized under the statute.
Before the court are the parties’ cross-motions for summary judgment. For the reasons that
follow, the court grants Defendant’s motion.
C.S., Plaintiff’s four-year-old son, began receiving special education services under Part C
of the Individuals with Disabilities Education Act (“IDEA”), in 2014 at Early Learning Center, a
nonprofit service provider in Washington, D.C. See Admin. Rec., ECF No. 9, Pts. 1–10, ECF Nos.
9-1 through 9-10 [hereinafter A.R.], at 6–7. 1 Part C of the IDEA provides for early intervention
services for at-risk infants and toddlers until the age of three. See 20 U.S.C. §§ 1431–1433. The
The Administrative Record appears on the docket in ten parts. Because the pagination is continuous throughout, the
court cites to the Record as though presented as a single document.
D.C. Office of the State Superintendent of Education determined C.S. was eligible for Part C
educational services based upon a Strong Start D.C. Early Intervention Program evaluation
conducted in October 2014, as part of which the evaluators administered the Battelle
Developmental Inventory, Second Edition (“BDI-2”), and the Assessment, Evaluation and
Programming System for Infants and Children, Second Edition; reviewed C.S.’s medical records;
and observed C.S. A.R. at 6–7.
Because C.S. would turn three years old in late 2015 and no longer be eligible for Part C
services, he underwent an initial special education evaluation, consisting of multiple parts, in order
to determine whether he qualified for services under Part B of the IDEA. Id. at 7, 10; see 20 U.S.C.
§ 1412(a)(9). Part B of the IDEA provides special education and related services to children and
young adults between the ages of 3 and 21. See 20 U.S.C. § 1412(a)(1)(A). In April 2015, C.S.
was referred to a school psychologist at Early Stages Center, a D.C. Public Schools assessment
center, and he underwent a psychological evaluation in mid-July 2015. A.R. at 7–8. As part of that
evaluation, the psychologist reviewed C.S.’s October 2014 Strong Start evaluation; interviewed
Plaintiff and Plaintiff’s mother (C.S.’s grandmother); tested C.S. using the Autism Diagnostic
Observation Schedule, Second Edition, assessment and the Pervasive Development Disorder
Behavior Inventory assessment; and, on July 28, 2015, issued a report with his findings. Id. at 7–
Additionally, an occupational therapist observed C.S. in class in early July and
interviewed his teacher. Id. at 9, 68–69. Lastly, a speech-language pathologist evaluated C.S. in
July, as well. She observed C.S. in class; interviewed C.S.’s speech-language provider and
classroom teacher; reviewed the Early Stages’ interview of Plaintiff and Plaintiff’s mother;
administered an Otoacoustic Emissions test and Preschool Language Scales, Fifth Edition,
assessment; and committed her findings to a report issued on July 22, 2015. Id. at 8, 45–54.
In late July 2015, a Multi-Disciplinary Team (“Defendant’s team”) held a meeting, which
Plaintiff and Plaintiff’s mother attended, and concluded C.S. was not eligible for Part B services
because he did not qualify as a child with an Autism Spectrum Disorder, Speech or Language
Impairment, or Developmental Delay. Id. at 8–9. In making that determination, the team reviewed
C.S.’s BDI-2 scores from 2014, the July 2015 psychological evaluation by the Early Stages school
psychologist, the July 2015 speech-language assessment, and the July 2015 classroom observations
by the occupational therapist. Id. at 75–89. As a result of Defendant’s team’s determination, C.S.
stopped receiving speech-language and occupational therapy services in fall 2015 because he had
aged-out of eligibility for Part C services. Id. at 7, 10.
Plaintiff disagreed with Defendant’s team’s determination and requested that Defendant
fund an Independent Educational Evaluation of C.S. Pursuant to Plaintiff’s request, Defendant
provided funding for psychological and speech evaluations of C.S. in the early part of 2016 to
determine whether he qualified as a child with a disability. Id. at 10. First, on February 10, 2016,
an independent audiologist performed a speech-language evaluation of C.S. and concluded he “had
an expressive language deficit in verbal language communication for which he needed speechlanguage therapy.” Id. at 11. Next, in mid-February 2016, an independent psychologist observed
C.S. in the classroom and administered a variety of cognitive, educational, and behavioral
assessments. Id. at 10–11. The independent psychologist determined that C.S. presented with
clinical symptoms consistent with Global Development Delay, as defined in the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition, and Autism Spectrum Disorder, as defined
under District of Columbia law. Id. at 11. Lastly, in April 2016, an occupational therapist reviewed
C.S.’s records; interviewed his classroom teachers, Plaintiff, and Plaintiff’s mother; made clinical
observations; and tested C.S. using the Peabody Developmental Motor Scales, Second Edition,
assessment. Id. The occupational therapist concluded C.S. “needed support for fine motor delays.”
Id. at 12.
In late April 2016, Defendant’s team reconvened and determined C.S. met the eligibility
criteria for Developmental Delay and, therefore, was a child with a disability entitled to a free
appropriate public education (“FAPE”). Id. Plaintiff subsequently sought a due process hearing to
review the team’s earlier conclusion that C.S. did not qualify as a child with a disability in July
2015. Id. at 3.
After holding a hearing on the matter, the Hearing Officer ruled in favor of Defendant. First,
the Hearing Officer concluded that Defendant’s team’s July 2015 evaluation was “comprehensive,”
as required by the IDEA, because it included review of the psychological, speech-language, and
occupational therapy assessments that the Early Stages assessment center conducted in July 2015,
as well as the BDI-2 assessment completed as part of the Strong Start evaluation from October
2014. Id. at 15. Although Plaintiff’s expert, Dr. Keisha Mack, had testified that there were “missing
pieces” in the July 2015 psychological evaluation, making it unreliable, the Hearing Officer
discounted Dr. Mack’s opinion because Dr. Mack also stated she had not reviewed the Strong Start
assessment data, on which the July 2015 psychological evaluation relied, and, therefore, could not
affirmatively rebut the findings of the July 2015 psychological evaluation. Id. at 15, 423–25. The
Hearing Officer also rejected Plaintiff’s argument that the July 2015 psychological evaluation was
deficient because the Early Stages school psychologist did not conduct any classroom observations
of C.S. or interview C.S.’s teachers himself, but instead, relied on the classroom observations and
interviews of the speech-language pathologist.
Id. at 15–16.
Second, the Hearing Officer
determined that Defendant’s team appropriately concluded C.S. was not a child with a disability in
July 2015 because the data presented did not meet the District of Columbia’s definition of either
“Developmental Delay” or “Autism Spectrum Disorder.” Id. at 17–21 (citing 5-E D.C.M.R. §
3001). Specifically, with respect to the possibility of Autism Spectrum Disorder, the Hearing
Officer explained that Plaintiff had not proven C.S. qualified as a child with an Autism Spectrum
Disorder because her expert did not make that conclusion on the record as part of her opinion. Id.
at 20. Separately, with respect to the Developmental Delay, the Hearing Officer found Plaintiff had
not met her burden of proof because Dr. Mack “could not dispute the conclusions and
recommendations of the DCPS Early Stages evaluators [in 2015]” because she had not reviewed
the data underlying that assessment. Id. at 21. Consequently, the Hearing Officer determined C.S.
was not a child with a disability in July 2015 and, therefore, was not denied a FAPE. Id.
Plaintiff filed the present action on September 7, 2016, seeking review of the Hearing
Officer’s determination. See Compl., ECF No. 1. The parties submitted cross-motions for summary
judgment, which are now ripe for the court’s review. See Pl.’s Mot. for Summ. J., ECF No. 10
[hereinafter Pl.’s Mot.]; Def.’s Cross-Mot. for Summ. J., ECF No. 12.
A parent dissatisfied with the outcome of a due process hearing concerning an IDEA claim
may appeal that decision to a federal district court. 20 U.S.C. § 1415(i)(2)(A). The reviewing
court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional
evidence at the request of a party; and, (iii) basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is appropriate.” Id. § 1415(i)(2)(C). The
party challenging the hearing officer’s ruling bears the burden of “persuading the court that the
hearing officer was wrong.” Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). Although
the court owes some deference to the hearing officer’s decision, “a hearing decision without
reasoned and specific findings deserves little deference.” Reid ex rel. Reid v. District of Columbia,
401 F.3d 516, 521 (D.C. Cir. 2005) (internal quotation marks omitted). When neither party
presents additional evidence to the district court, “a motion for summary judgment operates as a
motion for judgment based on the evidence comprising the record.” S.S. ex rel. Shank v. Howard
Rd. Acad., 585 F. Supp. 2d 56, 64 (D.D.C. 2008) (internal quotation marks omitted).
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the
substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18, 28
(D.D.C. 2015). On cross-motions for summary judgment, each party carries its own burden to
demonstrate that there are no disputed material facts and it is entitled to judgment in its favor.
Ehrman v. United States, 429 F. Supp. 2d 61, 67 (D.D.C. 2011).
The IDEA guarantees the right of “[a] free appropriate public education . . . to all children
with disabilities residing in the State between the ages of 3 and 21, inclusive.” 20 U.S.C.
§ 1412(a)(1)(A). In order to meet this statutory obligation, school officials must identify those
students with a disability, “develop a comprehensive strategy, known as an ‘individualized
education program,’ or IEP, tailored to the student’s unique needs,” and have the IEP in place at
the start of each school year. Leggett v. District of Columbia, 793 F.3d 59, 63 (D.C. Cir. 2015)
(quoting 20 U.S.C. § 1414(d)).
The United States Code sets forth three broad criteria that the local educational agency must
meet when evaluating a child’s eligibility for services under the IDEA and determining the scope
of the services that child needs. First, it must “use a variety of assessment tools and strategies” to
determine “whether the child is a child with a disability and the content of the child’s
individualized education program.” 20 U.S.C. § 1414(b)(2)(A). Second, the agency “[can]not use
any single measure or assessment as the sole criterion” for determining either whether the child is
a child with a disability or the educational needs of the child. Id. § 1414(b)(2)(B). And third, the
agency must “use technically sound instruments that may assess the relative contribution of
cognitive and behavioral factors, in addition to physical or developmental factors.”
Attendant federal regulations impose additional criteria that school officials must use when
evaluating a child to determine if he or she has a disability. A child’s initial evaluation or
reevaluation must consist of two steps.
First, the child’s evaluators must “review existing
evaluation data on the child,” including any evaluations and information provided by the child’s
parents, current assessments and class-room based observations, and observations by teachers and
other service providers. 34 C.F.R. § 300.305(a)(1). Second, based on their review of that existing
data and input from the child’s parents, the evaluators must “identify what additional data, if any,
are needed” to assess whether the child has a qualifying disability and, if so, “administer such
assessments and other evaluation measures as may be needed.” Id. § 300.305(a)(2), (c). Under the
first step of the analysis, the state agency is required to “[u]se a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information about the child,
including information provided by the parent.” See id. § 300.304(b). All the methods and materials
used must be “valid and reliable” and “administered by trained and knowledgeable personnel.” Id.
§ 300.304(c)(1). With respect to the second step of the analysis, if the state agency determines that
existing data supports a finding that the child is not a child with a disability and no additional
information is necessary before making that ineligibility determination, then the state agency must
notify the child’s parents of their right to request a subsequent assessment of their child. Id. §
300.305(d)(1). In combination, these regulations have the effect of ensuring “an evaluation both
confirms the student’s potential disabilities and examines whether she needs services.” Davis v.
District of Columbia, No. 15-1194, 2017 WL 1102647, at *17 (D.D.C. Mar. 23, 2017).
Plaintiff claims that the July 2015 psychological evaluation of C.S. was not
“comprehensive,” and for that reason, Defendant’s team’s reliance on that evaluation rendered the
team’s decision procedurally deficient and denied C.S. a FAPE. She believes the July 2015
psychological evaluation is lacking in two respects. First, the evaluation does not include first-hand
classroom observations or teacher interviews; the psychologist only cross-referenced the speech
pathologist’s observations and interviews. See Pl.’s Mot. at 16–17. Second, the psychologist relied
on an outdated assessment—the BDI-2, administered in October 2014—that did not reflect C.S.’s
contemporary developmental state, thereby skewing the results of the evaluation. See id. at 19.
These defects in the psychological evaluation, according to Plaintiff, both denied Plaintiff the
opportunity to meaningfully participate in Defendant’s team’s decisionmaking process and caused
Defendant’s team to come to the wrong conclusion. Id. at 25–26.
Plaintiff’s belief that federal law required the 2015 psychological evaluation to contain firsthand interviews with the student’s parent(s) and classroom evaluations of the student is mistaken.
The federal law and regulations to which Plaintiff points simply do not impose any specific
requirements on the content of a psychological evaluation. See Hill v. District of Columbia, No.
14-1893, 2016 WL 4506972, at *18 (D.D.C. Aug. 26, 2016); cf. Damarcus S. v. District of
Columbia, 190 F. Supp. 3d 35, 50 (D.D.C. 2016). The statute itself requires those making an
eligibility determination to “[u]se a variety of assessments”—of which a psychological evaluation
is just one— and “technically sound instruments,” so that the team can assess cognitive, behavioral,
physical, and developmental factors as part of their determination. 20 U.S.C. § 1414(b)(2)(C).
Additionally, assessments and other evaluation materials must be nondiscriminatory,
communicated in a way the child will understand, “valid and reliable,” “administered by trained
and knowledgeable personnel,” and conducted in accordance with the attendant instructions. Id. §
1414(b)(3)(A); 34 C.F.R. § 300.304(c)(1). Lastly, the student must be “assessed in all areas related
to the suspected disability.” 34 C.F.R. 300.304(c)(4).
The court finds no procedural defect in Defendant’s team’s 2015 determination based on
the lack of first-hand classroom observations and teacher interviews by the school psychologist.
The 2015 psychological evaluation, conducted by a professional psychologist, was “technically
sound” insofar as it allowed Defendant’s team to consider C.S.’s family, medical, developmental,
and educational histories, as well as social, emotional, and behavioral functioning. See 20 U.S.C.
§ 1414(b)(2)(C). Moreover, that evaluation was supplemented by the other types of information
Defendant’s team needed to consult before making an eligibility determination. The team reviewed
not only the July 2015 psychological evaluation, but also the 2014 BDI-2 assessment, the July 2015
speech-pathology evaluation, and the July 2015 occupational therapist’s notes. A.R. at 75–89. By
considering those materials, the team “reviewed existing evaluation data” that included input from
Plaintiff—C.S.’s parent—in both 2014 and 2015; “current” classroom-based observations, as
reflected in the occupational therapist’s notes and speech-pathologist’s report; an updated autism
test conducted by the psychologist; and observations by C.S.’s teacher, as reflected in both the
occupational therapist’s and speech pathologist’s reports. See 34 C.F.R. § 300.305(a)(1). Although
the psychologist’s evaluation itself did not contain classroom-based observations or a teacher
interview, classroom-based observations and teacher interviews were made available to
Defendant’s team through the speech-pathology evaluation and occupational therapist’s notes. The
federal regulations do not require that a particular professional conduct classroom observations and
teacher interviews, only that those observations and interviews be completed and Defendant’s team
to review them. Consequently, Defendant’s team consulted all the types of information it needed
to prior to making its eligibility determination.
It is less clear to the court, however, whether Defendant’s team needed to order updated
testing so it could properly assess C.S.’s contemporary levels of academic achievement and related
developmental needs, as required under 34 C.F.R. § 300.305(a)(2)(ii). The regulations do not speak
directly to when a local educational agency must order updated testing, but Plaintiff’s expert opined
that the BDI-2 test was “old” and “developmentally a lot happens in a year,” A.R. at 412–13, which
suggests to the court that it may have been necessary for Defendant’s team to order new assessments
of C.S. before determining his eligibility for Part B services. The Hearing Officer discounted
Dr. Mack’s testimony as a whole because she had not reviewed the 2014 Strong Start assessment
data, on which the 2015 psychological evaluation relied. See id. at 15, 21, 424–25. The fact that
Dr. Mack stated she could not rebut the findings of the 2015 psychological evaluation is separate,
however, from her opinion that Defendant’s team’s determination relies, in part, on outdated
information. The Hearing Officer’s Decision does not address that latter point.
The court need not resolve this issue today, however, because even assuming Defendant’s
team procedurally erred by failing to order new testing, Plaintiff has not met her burden of
demonstrating that C.S. was denied a FAPE in 2015 as a result. Not all procedural violations
constitute denials of a FAPE; only those that affect the student’s substantive rights. McLean v.
District of Columbia, No. 16-2067, 2017 WL 3891669, at *3 (D.D.C. Sept. 5, 2017). A hearing
officer may find a procedural violation caused the denial of a FAPE in any of three circumstances:
the procedural inadequacy “(i) [i]mpeded the child’s right to a FAPE; (ii) [s]ignificantly impeded
the parent’s opportunity to participate in the decision-making process regarding the provision of a
FAPE to the parent’s child; or (iii) [c]aused a deprivation of educational benefit.” 34 C.F.R.
§ 300.513(a)(2). Plaintiff points to no record evidence supporting a finding that any of those three
circumstances occurred in this case. Here, Dr. Mack testified at length about the deficiencies in the
psychologist’s evaluation but never offered an opinion that updated testing in 2015 likely would
have indicated C.S. had a disability and likely would have led Defendant’s team to determine C.S.
was eligible for Part B services. See A.R. at 406–13; cf. 34 C.F.R. § 300.513(a)(2)(i), (iii).
Correlatively, absent any suggestion that updated testing would have indicated C.S. had a disability
in 2015, the court cannot conclude that the failure to order updated tests significantly impeded
Plaintiff’s right to participate in the decisionmaking process. Cf. 34 C.F.R. § 300.513(a)(2)(ii).
Thus, even assuming a procedural violation occurred, the court concludes C.S. was not denied a
FAPE in 2015.
In light of the foregoing discussion, the court denies Plaintiff’s Motion for Summary
Judgment and grants Defendant’s Cross-Motion for Summary Judgment. A separate Order
accompanies this Memorandum Opinion.
Dated: September 19, 2017
Amit P. Mehta
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?