Amit P. Mehta, United States District Judge.
Plaintiff Shanika McLean 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 her minor son, D.M., was not denied a free appropriate public education during the 2013-2014 school year. The Hearing Officer determined that Defendant District of Columbia's April 2014 special education eligibility evaluation of D.M. was procedurally deficient, but found that the procedural violation did not deny D.M. a free appropriate public education and, therefore, concluded that an award of compensatory education was unwarranted.
Before the court are the parties' cross-motions for summary judgment. For the reasons that follow, the court denies the parties' motions and remands the case for further proceedings.
D.M., the six-year old son of Plaintiff Shanika McLean, suffers from Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD"), but these conditions were not immediately recognized. See Admin. Rec., ECF No. 9, Pts. 1-7, ECF Nos. 9-1, 9-2, 9-3, 9-4, 9-5, 9-6, 9-7 [hereinafter A.R.], at 7-10.
As a result of the discrepancy in findings between the two evaluations, Plaintiff filed a due process complaint alleging that Defendant denied D.M. a free appropriate public education ("FAPE"), as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1412(a)(1)(A). Specifically, Plaintiff's complaint challenged Defendant's failure to comprehensively evaluate D.M. during the 2013-2014 school year and conduct comprehensive evaluations of him following his initial referral for evaluation in Spring 2014. See A.R. at 171-76.
After holding a hearing on the matter, the Hearing Officer ruled in favor of Defendant. Crediting the opinion of one of Plaintiff's experts, the Hearing Officer (1) determined that D.M.'s April 2014 special education eligibility evaluation violated the IDEA because it was prepared without conducting a classroom observation or obtaining teacher input and (2) accepted that D.M. suffered from ADHD at the time of his defective evaluation. Id. at 14, 16. Nonetheless, the Hearing Officer concluded D.M. was not denied a FAPE because Plaintiff had not established that D.M.'s ADHD adversely affected his academic performance or that, by reason of his ADHD, D.M. needed special education and related services. Id. at 16. Therefore, the Hearing Officer held, Defendant did not deny D.M. a FAPE for the 2013-2014 school year and compensatory education was unwarranted. Id. at 17.
A parent dissatisfied with the outcome of a due process hearing concerning a claim under the IDEA 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
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. 2006).
The IDEA provides a statutory right to "[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)(1)(A)). Attendant regulations set forth the criteria school officials must use when evaluating a child to determine if he or she has a disability. See 34 C.F.R. § 300.305(a).
Here, no one disputes the Hearing Officer's determination that Defendant violated the IDEA's procedures for determining whether D.M. had a disability during the 2013-2014 school year. The Hearing Officer explained that Defendant's initial evaluation of D.M. fell short of the regulatory mandate because "the only existing data for [D.M.] the Early Stages evaluators reported having reviewed was the Ages and Stages Questionnaire, which contained no classroom observation information or teacher input," contrary to the regulation's requirements. A.R. at 14; see 34 C.F.R. § 300.305(a)(ii), (iii). Defendant does not challenge that finding. Def.'s Opp'n to Pl.'s Mot. for Summ. J. & Cross-Mot. for Summ. J., ECF No. 12, at 6.
The only question presented is whether that procedural violation resulted in denial of a FAPE. "[A] procedural violation
Here, the Hearing Officer determined that, notwithstanding the procedural violation, D.M. was not denied a FAPE because the record evidence did not establish that D.M. met the definition of a "child with a disability" during the 2013-2014 school year, and, therefore, he was not entitled to a FAPE. The statute defines "child with a disability" as a child (1) who suffers from one or more enumerated impairments, including, as pertinent here, "other health impairments," and (2) "who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3). A child has an "other health impairment" ("OHI") when he has "limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment," (1) "due to chronic or acute health problems such as ... attention deficit hyperactivity disorder," that (2) "[a]dversely affects [his] educational performance." 34 C.F.R. § 300.8(c)(9). The Hearing Officer credited Plaintiff's expert's testimony that D.M. had ADHD "as early as the spring of 2014." A.R. at 16. However, the Hearing Officer found that there was insufficient evidence that D.M.'s ADHD "adversely affect[ed] his educational performance" during the 2013-2014 school year or that, by reason of his ADHD, D.M. needed "special education and related services." Id.; see 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.8(c)(9). The Hearing Officer explained his reasoning as follows:
A.R. at 16-17 (alterations in original). In other words, the Hearing Officer determined that the record evidence did not support a finding that D.M. qualified as a "child with a disability" — a child entitled to a FAPE — during the 2013-2014 school
The court finds the Hearing Officer's decision to be inadequate for two reasons. First, the Hearing Officer pulled a statement from Plaintiff's expert in "clinical and school psychology," Dr. Martha Ozer, id. at 424, out of context in order to support his conclusion that D.M. could not qualify as a "child with a disability." The full statement reads as follows:
A.R. at 435-37 (emphasis added). When read in full, the statement makes plain that, in Dr. Ozer's expert opinion, although D.M.'s academic performance was satisfactory, he nevertheless required special education to assist him and his instructors, both present and future, in developing strategies for coping with D.M.'s ADHD. Dr. Ozer's observation that D.M. "is normal, he is normal achievement [w]ise," was not intended to convey that D.M. did not need special education in 2014. To the contrary, by stating that achievement of educational markers "is not that hard to do," id. at 437 (emphasis added) — testimony that the Hearing Officer omitted when quoting her opinion — Dr. Ozer was saying just the opposite; the fact that D.M. was meeting basic expectations on paper did not correlate with whether he needed special education services. In Dr. Ozer's opinion, he "certainly" did. Id. Consequently, the statement to which the Hearing Officer attached nearly dispositive weight does not, in context, support the Hearing Officer's conclusion.
Second, the court finds the Hearing Officer's decision inadequate because the Hearing Officer accepted Plaintiff's experts as qualified to give opinion testimony but did not give any consideration to their
The record is simply too bare at this juncture for the court to make an informed decision as to whether the Hearing Officer correctly decided that the procedural violation did not result in D.M. being denied a FAPE during the 2013-2014 school year. Consequently, the court will vacate the Hearing Officer's decision and remand for further proceedings. See Reid, 401 F.3d at 526; see also McNeil v. District of Columbia, 217 F.Supp.3d 107, 115-16 (D.D.C. 2016); M.O., 20 F.Supp.3d at 40-41. On remand, the hearing examiner shall assess and weigh Plaintiff's experts' testimony in deciding whether D.M., because of his ADHD, had a qualifying disability that entitled him to a FAPE during the 2013-2014 school year. In so doing, the Hearing Officer may wish to reopen the record to hear testimony from those who taught D.M. during the 2013-2014 school year, as his instructors likely have the best sense of whether D.M.'s ADHD affected his educational performance. Moreover, the Hearing Officer shall address whether the evidence presented demonstrates that the deficient evaluation that D.M. received in 2014 caused any of the three circumstances in which a procedural violation can constitute a denial of a FAPE. See 34 C.F.R. § 300.513(a)(2). That analysis will require the Hearing Officer to evaluate an argument that Plaintiff appears to raise for the first time in this court, namely, that the procedural violation "impeded [her] opportunity to participate in the decisionmaking process regarding the provision of FAPE to D.M." Pl.'s Mot. for Summ. J., ECF No. 10, at 15 (referencing 34 C.F.R. § 300.513(a)(2)(ii)).
In light of the foregoing discussion, the court denies the parties' motions and remands this matter to the Hearing Officer for further proceedings consistent with this Memorandum Opinion. An Order will issue separately.