ROSEMARY M. COLLYER, District Judge.
E.L. Haynes Public Charter school (E.L. Haynes) seeks judicial review of a Hearing Officer's Determination and Order (HOD) rendered in favor of chaun Frost, the parent and next friend of A.T., a minor,
A.T. is a fifteen-year-old student who was enrolled at E.L. Haynes for the 2011-2012 (seventh grade), 2012-2013 (eighth grade), and 2013-2014 (ninth grade) school years. Administrative Record (AR)
A.T. worked on an 8
Id. at 136. Her "attitude towards school improved over time" and she "worked on reducing incidences of rude and inappropriate comments during instructional time." Id.
Although A.T. experienced a reduction in anxiety over the course of her stay at [Redacted\] she "remain[ed] somewhat anxious and [was] prone to experiencing stress-related somatic symptoms" and had "moderately high reactive anger and moderately low anger control" when she was discharged on October 18, 2012. Id. at 134-35, 524, 527. [Redacted\] reported that A.T. "made progress in appropriate social skills. She does continue to exhibit rude and disrespectful behavior to peers and staff, but is easily redirected." Id. at 138. A.T. "has learned what stress is and how it impacts her on physical, emotional and behavioral levels. . . . A.T. has learned over 3 relaxation, visualization, breathing techniques and basic meditation and yoga techniques." Id. at 136. [Redacted\] identified A.T.'s prognosis as "guarded" and noted that she "will continue to require individual therapy, family therapy, and nutritional counseling." Id. at 135, 139. As a result of her stay at [Redacted\], A.T. missed the first 43 days of the 2012-2013 school year. Id. at 774. She returned to E.L. Haynes on October 22, 2012. Id.
In August 2012, while A.T. was a [Redacted\], her mother asked that A.T. be evaluated for special education and signed a consent form for that purpose, Shortly after A.T. returned to E.L. Haynes, the School's psychologist Cassandra Class completed a confidential psycho-educational evaluation of A.T. on November 5, 2012 (Psych/Ed Evaluation). Id. at 147-160.
A multi-disciplinary team (MDT) convened on November 8, 2012 to consider the Psych/Ed Evaluation and determine whether A.T. was eligible for special education. Id. at 567. Members of the multi-disciplinary team included Plaintiff Chaun Frost, A.T.'s mother; Cheryl Frost, A.T.'s grandmother; Julie Holt, Inclusion Coordinator; Rabiah Harris, A.T.'s general education teacher; beth Barnes, A.T.'s 8
As summarized in the Psych/Ed Evaluation, A.T.'s medical history sowed that A.T. took medication for diabetes, ADHD, asthma, and gastrointestinal problems and had been diagnosed with ADHD, oppositional defiance disorder, enuresis, morbid obesity and, intermittent explosive disorder. Id. at 148, 158. She had been admitted to the Psychiatric Institute of Washington in March and May of 2012 for emotional issues. Id. at 148. The Psych/Ed Evaluation noted that A.T. participated in weekly outpatient therapy and was under the care of a psychiatrist. Id. at 158.
The Psych/Ed Evaluation reported on A.T.'s cognitive and academic achievement based on testing conducted in November 2012. Id. at 150-153. Although A.T. generally received average scores, testing indicated that A.T. "may have skills gaps in her knowledge of applied mathematical concepts." Id. at 153. A.T. "scored within the Below Average range on the Math Problem Solving subtest" and struggled with items "pertaining to probability, fractions, and geometry." Id. She also performed below average in areas assessing her knowledge of verbal similarities, sequential and quantitative reasoning, and essay composition, but "did not appear to demonstrate her best effort on this task." Id. at 150, 152. Based on A.T.'s performance on the various assessments and achievement tests, Ms. Class concluded:
Id. at 158.
Ms. Class conducted a thirty-munute classroom observation as part of her evaluation and observed that A.T. "appeared drowsy and often placed her head down on the table, despite frequent redirection from her teacher to sit up . . . did not take notes or seem concerned with her performance on the assignment." Id. at 148-49, 158. In one-on-one testing, A.T. "displaying a flat affect and again appeared fatigued." Id. at 158. Ms. Class concluded that "the results of this evaluation should be interpreted with caution given the likelihood that [A.T.] was experiencing side effects from her medications at the time of testing." Id.
The results of the BASC-II, based on the ratings of Ms. Frost and A.T.'s seventh grade teachers, were that A.T. was experiencing at-risk or clinically significant levels of hyperactivity, aggression, conduct problems, anxiety, depression, somatization, internalizing problems, attention problems, school problems, learning problems, atypicality, withdrawal and behavioral symptoms. Id. at 153-54. "[A]ll rates reported At-Risk to Clinically Significant levels of Hyperactivity and Aggression." Id. at 154-55. Two of A.T.'s seventh grade teachers reported that A.T. "has difficulty keeping up in class, completing tests, and maintaining good grades." Id. at 155. Despite these evaluations and observations, A.T.'s seventh grade teachers reported that A.T.'s "motional/behavioral difficulties have only a mild impact on her educational performance." Id.
During the November 2012 MDT meeting, A.T.'s eighth-grade teaches provided classroom observations of A.T. They noted that A.T. was "resilient," "[worked] well with other people, which is a positive change from last year," was "participating in class," and was "pushing herself." Id. at 567-68. The Team discussed that A.T. scored in the average range for nearly every subtest in the November 2012 evaluation. Id.; see also id. at 152-53, 192-93, 536, 540-42. Because the eighth-grade curriculum was built on knowledge learned in the first quarter of the school year, the Team concluded that A.T. missed learning foundational skills while she was hospitalized at Cumberland and may require remedial tutoring. Id. at 567. The Team agreed that A.T. would "be able to catch up and get back on track with relatively little time spent on tutoring." Id. at 568. Further, the meeting notes document that "the teachers and [A.T.'s] family did not feel that emotional concerns impact her academic success." Id.
The Team unanimously agreed that A.T. was ineligible for special education because its members were "not seeing academic impact." Id. at 551, 566-68. The Team discussed A.T.'s eligibility for accommodations under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and decided to review Section 504 eligibility once A.T. had undergone outside psychiatric testing. Id. at 568. On November 16, 2012, E.L. Haynes sent a Final Eligibility Determination Report to Ms. Frost, which confirmed the Team's finding that A.T. was ineligible for special education under the IDEA at that time:
Id. at 560.
On March 25, 2013, a team met to determine A.T.'s Section 504 eligibility. Id. at 588. That Team consisted of Ariel Van Doren, Family Therapist; Chaun Frost, A.T.'s mother; Cheryl Frost, A.T.'s grandmother; Kandiss Wiggins, Community Support Worker; Veronza Eason; Connie Parham, A.T.'s math teacher; Julie Holt, Inclusion Coordinator; and Teri Johnson-Stokes, School Social Worker. Id. at 587. The Section 504 Team concluded that A.T. was eligible for accommodations and adopted a Section 504 plan for A.T. Id. at 579-82, 584-85, 588.
On January 24, 2014, a Section 504 Team meeting was held to review A.T.'s Section 504 plan. Id. at 610-614. Mia Long, an educational advocate for A.T.. asked E.L. Haynes to reconsider A.T.'s eligibility for special education. Id. at 611. E.L. Haynes did not believe that A.T. needed the support of special education, but proposed to "revisit the need for an [individualized education plan (IEP)] and possibility of an alternative placement" after the completion of a functional behavior assessment (FBA) and psychiatric evaluation. Id. By letter dated January 27, 2014, Ms. Frost dissented from the outcome of the January 24, 2014 meeting and reiterated her desire that A.T. "be found eligible for an IEP and that she placed in a full time therapeutic program, presumably at a different school. Id. at 618.
On January 31, 2014, Ms. Frost, on behalf of A.T., filed an administrative due process complaint, complaining that E.L. Haynes failed to provide A.T. with a free appropriate public education (FAPE) at meetings held on November 25, 2012, March 25, 2013 and January 24, 2014 and failed to assess A.T. in all areas of suspected disability. Id. at 5-16.
On March 13, 2014, Ms. Class and Adriana Salcedo, a social worker, completed a functional behavior assessment of A.T. Id. at 659-664. The functional behavior assessment concluded that A.T. had attended only 32 of 117 instructional days in 2013-2014 of school because she refused to go to school. Id. at 659.
Dr. Todd Christiansen completed a psychiatric evaluation of A.T. on March 13, 2014, which did not include an interview with A.T. because she refused to talk with him. Id. at 666-72, 1114. Ms. Frost also limited her discussion with Dr. Christiansen to ten minutes. Id. at 834. Dr. Christiansen concluded that a dysfunctional family dynamic was the reason for A.T.'s refusal to attend school. Id. at 671, 1119. On March 18, 2014, Ms. Frost requested an independent educational evaluation because she disagreed with Dr. Christiansen's psychiatric evaluation. Id. at 681. E.L. Haynes refused to fund an independent educational evaluation, but suggested that Dr. Christiansen could interview. A.T. and write an addendum to his report. Id. at 686. Ms. Frost rejected E.L. Haynes' proposal and refused to let Dr. Christiansen continue his evaluation of A.T. Id. at 685.
Ms. Frost filed a second administrative due process complaint on March 28, 2014, alleging that E.L. Haynes failed to authorize funding for an independent educational evaluation to allow a private provider to conduct a psychiatric assessment of A.T. Id. at 28, 47. On April 7, 2014, E.L. Haynes answered the second due process complaint and filed a counterclaim defending Dr. Christiansen's pshychiatric evaluation. Id. 40. The two complaints dated January 31, 2014 and March 28, 2014 were consolidated and a due process hearing was held on May 16, 2014 and May 19, 2014 before a hearing officer. Id. at 101, 827. The Hearing Officer certified following three issues for the hearing:
Id.. at 828. At the due process hearing, Ms. Frost argued that A.T. should be deemed eligible for special education "because of both the emotional disturbance and the other health impaired classifications" under IEDA. Id. at 836. The Hearing Officer stated that "the parties agree that the Student meets the criteria for both the above classifications. Id. Therefore, the Hearing Officer established that "[t]he question before his [Independent Hearing Officer] is whether the Student's emotional disturbance and/or other health impairment has an adverse impact on the Student's emotional performance, thereby necessitating specialized instruction." Id.
The Hearing Officer issued his ruling on May 29, 2014 (AR at 826-48, HOD), finding that E.L. Haynes had denied A.T. a FAPE by failing to determine that she was eligible for special education in November 2012 and by failing to conduct a functional behavior assessment in November 2012. Id. at 840, 842. The HOD also found that E.L. Haynes improperly denied A.T. an independent educational evaluation. Id. at 843. By way of relief, the Hearing Officer (1) awarded A.T. an independent educational evaluation, (2) ordered E.L. Haynes to reconvene an IEP team to determine A.T.'s program for the 2014-2015 school year after the completion of the independent educational evaluation, (3) directed E.L. Haynes to provide A.T. with a credit recovery program to allow A.T. to gain 6 Carnegie units, and (4) directed E.L. Haynes to provide A.T. with two hours per week of academic tutoring by a certified special education teacher through to the end of the summer of 2014. Id. at 846.
On August 26, 2014, E.L. Haynes filed its complaint with this Court, appealing the HOD. See Compl. [Dkt. 1]. On October 28, 2014, E.L. Haynes filed a Motion for Partial Stay, seeking to stay the order requiring E.L. Haynes to fund an independent educational evaluation. See Mot. for Partial Stay of Admin. Order During Pendency of Appeal [Dkt. 5] at 2.
Under Federal Rule of Civil Procedure 56, Summary Judgment is appropriate "if the movant 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, Summary Judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary Judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255.
When evaluating cross-motions for summary Judgment, each motion is reviewed "separately on its own merits to determine whether [any] of the parties judgment as a matter of law." Family Trust of Mass., Inc. v. United States, 892 F.Supp.2d 149, 154 (D.D.C. 2012) (citation and internal quotation marks omitted). Neither party is deemed to "concede the factual assertions of the opposing motion." Competitive Enter. Inst. Wash. Bureau, Inc. v. Dep't of Justice, 469 F.3d 126, 129 (D.C. Cir 2006) (citation omitted)). "[T]he court shall grant summary Judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Am. Ins. Ass'n v. United States HUD, 2014 WL 5802283, at *5 (D.D.C. Nov. 7, 2014) (internal quotation marks and citation omitted). A genuine issue exists only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
The IDEA ensures that "all children with disabilities have a 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." 20 U.S.C. § 1400(d)(1)(A). The Act defines "children with disabilities" as children having one of the specifically delineated conditions, "who, by reason thereof, need special education and related services." Id. § 1401(3)(A). Under the IDEA, parents of disabled children have the opportunity to participate in the evaluation under educational placement process of their child. See id. § 1415(b)(1). If a parent objects to the identification, evaluation, or educational placement of a disabled child, or whether she is receiving a free appropriate public education (FAPE), see id. § 1415(b)(6), the parent may seek an "impartial due process hearing" before an Independent Hearing Officer (here, a D.C. employee), who issues a Hearing Officer Determination (HOD). Id. § 1415(f)(1)(A). If the parent is dissatisfied with the determination, she may appeal to a state court or a federal district court. See id. 1415(i)(2)(A).
In cases under the IDEA, a district court "shall review the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). A district court's inquiry has two parts. First, the court must determine whether the school complied with the procedural requirements of IDEA. See N.G. v. District of Columbia, 556 F.Supp.2d 11, 17 (D.D.C. 2008) (citing Bd. of Educ. of Hendrick Hudson Cent. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)). Second, the court must determine whether the eligibility determination was correct under the statute. See N.G., 556 F. Supp. 2d at 30 (citing Kroot By and Through Kroot v. District of Columbia, 800 F.Supp. 976, 981 (D.D.C. 1992)).
The burden of proof is on the party challenging the administrative determination which must "`at least take on the burden of persuading the court that the hearing officer was wrong.'" Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). Typically, the court gives "due weight" to the HOD and does not substitute its own view of sound educational policy for that of the hearing officer. See Rowley, 458 U.S. at 206. "However, less deference is to be accorded to the hearing officer's decision than would be the case at a conventional administrative proceeding." Stanton ex rel. K.T. v. D.C., 680 F.Supp.2d 201, 205 (D.D.C. 2010) (citing Reid, 401 F.3d at 521). The court "must make an independent determination regarding [a student]'s eligibility while affording some deference to the hearing officer's determination." Kroot, 800 F. Supp. at 981. A district court review pure questions of law de novo. Reid, 401 F.3d at 521.
If neither party requests the district court to hear additional evidence, the court may determine the case based on the administrative record on summary judgment. D.K. v. District of Columbia, 983 F.Supp.2d 138, 144 (D.D.C. 2013). Here, neither party has requested that the Court hear additional evidence. The Court finds the record sufficient, and, thus, bases its decision on a review of the administrative record and the briefs and arguments presented by the parties.
The fundamental question raised on appeal is whether the Hearing Officer Decision (HOD) correctly concluded, as a matter of fact and law, that E.L. Haynes denied A.T. a free appropriate public education (FAPE) when the school followed all procedural requirements and the multi-disciplinary team unanimously decided, on November 8, 2012, that A.T. was not eligible for special education. E.L. Haynes also disputes the HOD's conclusion that it denied A.T. a FAPE by not conducting a functional behavior assessment after the November 2012 MDT meeting and failing to fund an independent educational evaluation for A.T. as requested at the March 2014 meeting. The Court finds that the HOD must be affirmed only as to the independent education evaluation determination after March 2014 and reversed in all other respects.
As a preliminary matter, Ms. Frost defends her right to challenge the November 2012 MDT decision, despite her contemporaneous agreement, citing Ridgewood Bd. of Education v. N.E., 172 F.3d 238 (3d Cir. 1999).
Ms. Frost did not, and does not, complain that E.L. Haynes failed to comply with any procedural requirements of the IDEA surrounding or that the multi-disciplinary team meeting on November 8, 2012.
E.L. Haynes argues that the HOD should have addressed its full compliance with the procedural requirements of the IDEA. It cites Board of Education of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982), for the proposition that the procedural safeguards of the IDEA, along with the "full participation of concerned parties throughout the development of the [individual Education Plan] . . . demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Id. 458 U.S. at 206. Although Rowley was interpreting the Education for all Handicapped Children Act, 20 U.S.C. § 1401 et seq. (1976 ed. and Supp. IV), that statute was a precursor to the current law and Rowley's directions remain good law.
Id. at 205-07.
Where a party challenges an ineligibility determination, there is no IEP; consequently, the inquiry becomes "whether the ineligibility determination was proper under the [IDEA]." N.G. v. District of Columbia, 556 F.Supp.2d 11, 30 (D.D.C. 2008) (citing Kroot v. District of Columbia, 800 F.Supp.2d 976, 981 (D.D.C. 1992)). In this inquiry, the education professionals' opinions carry significant weight, Rowley, 458 U.S. at 207 ("The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suited to the child's needs, was left by the [IDEA] to state and local agencies in cooperation with the parents or guardian of the child.") (emphasis added); id., at 208 ("[O]nce a court determines that the requirements of the [IDEA] have been met, questions of methodology are for resolution by the State.").
For sure, Rowley was giving directions to the district courts that hear appeals from HODs and not addressing how a Hearing Officer is to decide. However, the failure of the instant HOD to address E.L. Haynes' procedural compliance means that it failed to consider the importance of that factor — including the active participation of both Ms. Frost and A.T.'s grandmother and the agreement of both at the November 2012 MDT meeting. While a parent's agreement does not bar a later challenge to the decision of an MDT meeting, it nonetheless figures into evaluating a school's compliance with the IDEA. Inasmuch as Congress gave the procedural protections in the IDEA "every bit as much emphasis . . . as it did upon measurement of the resulting" decisions, reviewing courts must do so. Rowley, 458 U.S. at 205.
In HOD gives short shrift to procedural compliance. It mentioned the full cast at the MDT meeting but did not analyze the significance of that fact. It mentioned that A.T.'s mother and grandmother participated and agreed with the November 2012 MDT decision, but accepted Ms. Frost's later testimony, which said she silently disagreed but did not understand she could say so, without considering the implications (and timing) of both. AR 1009. It mentioned that the MDT decision was unanimous but did not address the significance of that fact. While it would have been helpful if the HOD addressed procedural compliance directly, in fact, it appears the procedures were satisfied.
E.L. Haynes stresses that Ms. Frost's agreement that A.T. was ineligible for special education services in November 2012 "produced a unanimous eligibility determination, strongly suggesting it was . . . substantively appropriate." Id. Further, E.L. Haynes argues that Ms. Frost's credibility was "seriously impeached by her subsequent testimony that conflicted with her original, written agreement with the eligibility determination." Id. Neither point was evaluated by the HOD.
The Court agrees with Ms. Frost that procedural compliance alone does not satisfy IDEA Substantive compliance with the law is equally important, see Rowley, 458 U.S. at 207, even if the substantive standards are less clearly stated in the statute. E.L. Haynes does not actually take a contrary position. Its argument is somewhat more nuanced: "a unanimous IEP team decision does not necessarily inoculate it from any further administrative or judicial review, but it certainly suggests that it was correct at the time it was made. . . . [A] unanimous IEP team decision indicates substantive appropriateness." Pl. Reply at 6. In essence, E.L. Haynes argues that there should be a presumption of substantive appropriateness when all procedural requirements are fulfilled and a multi-disciplinary team reaches a unanimous decision. See id. at 13 n.5 ("EL [sic] Haynes still maintains that it was an outrageous overstep of authority for the Hearing Officer to disturb a unanimous IEP decision that was procedurally complaint in every way.").
At least without more strenuous briefing (beyond Ms. Frost), the Court is unwilling to adopt a presumption as a matter of law that full compliance with IDEA procedures and MDT unanimity will result in substantive compliance with the IDEA. Rowley expressly contemplates a two-part inquiry. See Rowley, 458 U.S. at 206-07. Therefore, the Court must proceed and determine whether the eligibility determination was proper. See N.G., 556 F. Supp. 2d at 30.
Before this Court, the parties argue extensively over whether A.T.'s disability adversely affected her educational performance, leading the Court to conclude that the HOD erred as a matter of fact and law when it stated that the parties agreed that A.T. had an "emotional disturbance" and "other health impairment" as defined by the statutory criteria. See AR at 836. To the contrary, "emotional Disturbance" is defined as
34 C.F.R. § 300.8(c)(4)(i) (emphasis added). "Other health impairment" is defined as
Id. § 300.8(c)(9) (emphasis added). Obviously, one component of the definition of "emotional disturbance" and "other health impairment" is whether that condition "adversely affects a child's educational performance." Id. §§ 300.8(c)(4)(i), 300.8(c)(9). Determining that a child has an "emotional disturbance" or "other health impairment" only fulfills the first prong of the analysis under 20 U.S.C. § 1401(3)(A) as to whether she is a "child with a disability." Under the IDEA,
20 U.S.C. § 1401(3)(A) (emphasis added); see also 34 C.F.R. § 300.8(a)(1)("Child with a disability means a child evaluated . . . as having . . . a serious emotional disturbance (referred to in this past as `emotional disturbance'), . . . an other health impairment, and, who, by reason thereof, needs special education and related services.") (emphasis added). To be eligible for special education as of November 2012, A.T. must have needed special education and related services because of her disability. See Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 383 (5th Cir. 2007).
The HOD identified the key issue as whether A.T.'s "emotional disturbance and/or other health impairment has am adverse impact on the Student's educational performance, thereby necessitating specialized instruction." AR at 836 (emphasis added). The use of the present tense in 2014 is telling because the HOD conflated past (as of November 2012) and subsequent events. E.L. Haynes, however, argues that five criteria must be met before a child is eligible for special education under the IDEA:
Pl. Mot. [Dkt. 12] at 10. E.L. Haynes argues that the HOD must be reversed because it failed to examine each of these criteria. Id. Ms. Frost does not contest the relevance of the five criteria to the case at hand, but argues that the Hearing Officer correctly applied the legal standard and E.L. Haynes is merely "nitpick[ing] the precise phrasing of the Hearing Officer's analysis." Def. Cross-Mot [Dkt. 13] at 12-13.
Before this Court, the parties first argue over the meaning of "educational performance." E.L. Haynes argues that "an adverse impact on a child's `educational performance' requires at least an `adverse impact on academic performance.'" Pl. Mot. at 11 (emphasis added) (citing Maus v. Wappingers Cent. Sch. Dist., 688 F.Supp.2d 282, 294 (S.D.N.Y. 2010); C.B. ex rel. Z.G. v. Dep't of Educ. of the City of N.Y., 322 F. App'x 20, 21-22 (2d Cir. 2009); A.J. v. Bd. of Educ., East Islip Union Free Sch. Dist., 679 F.Supp.2d 299, 310-11 (E.D.N.Y. 2010)). Further, E.L. Haynes cites cases that have required an adverse effect on academic performance to find that a child's behavioral issues make her eligible for special education. See, e.g., Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 384 (5th Cir. 2007); Q.W. ex rel. M.W. v. Board of Education of Fayette County, Kentucky, No. 14-126, 64 IDELR 308, at *7 (E.D. Ky. Jan. 14, 2015); Ashli C. ex rel. Sidney C. v. State of Hawaii, No. 5-429, 47 IDELR 65 (D. Haw. Jan. 23, 2007).
Ms. Frost attacks E.L. Haynes' argument that the term "educational performance" relates "solely to include academic performance" based on E.L. Haynes' citation to cases from the Second Circuit, which are not controlling. In contrast, she contends that "educational performance' must be construed more broadly.
Honig v. Doe, U.S. 305, 320 (1988)). In view of a broader reading of "educational performance," Ms. Frost claims that A.T.'s "poor behavior and, later, truancy constitute educational impact," Def. Cross-Mot. at 15 (emphasis added),
E.L. Haynes has the better part of the argument. The Court again takes it cue from Rowley, in which the Supreme Court emphasized that "if the child is being educated in the regular classrooms of the public education system, [an IEP] should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Rowley, 458 U.S. at 204. While advancement from grade to grade is not always dispositive, Rowley found that the student's "academic progress, when considered with the special services and professional consideration accorded by the . . . school administrators, to be dispositive." Id. at 203 n.25. While Rowley dealt with the standard for special education services provided to an eligible student and this case concerns and MDT decision on eligibility, Rowley suggests that academic progress should be the primary focus in this Court's evaluation of whether A.T.'s disability had an adverse impact on her "educational performance" as of November 8, 2012,See Rowley, 458 U.S. at 201 (IDEA was adopted to provide a "basic floor of opportunity"); Q.W. ex rel. M.W., 64 IDELR 308 ("And taken at face value, the term `educational performance' suggests school-based evaluation."). Indeed, there is no doubt that many students need special education because they are not capable of learning solely in a mainstream school setting. However, most students who are able to succeed academically in such an environment do not need special education, See Ashli C. ex rel. Sidney C., 47 IDELR 65 ("If a student is able to learn and perform in the regular classroom taking into account is particular learning style without specially designed instruction, the fact that his health impairment may have a minimal adverse effect does not render him eligible for special education services."). In the end, each eligibility determination must be made "on a case-by-case basis, depending on the unique needs of a particular child." Letter to Clark, 48 IDELR 77 (Mar. 8, 2007).
The HOD fails to include any discussion of A.T.'s academic progress. Instead, the HOD emphasized A.T.'s conduct and school issues in the 2011-2012 school year (7
The HOD was critical that A.T.'s "eighth grade teachers were not called as witnesses to explain how it was that the Student's emotional issues had then subsided." Id. at 838. And yet it ignored uncontested statements from A.T.'s eighth grade teachers, recorded in the November 2012 MDT meeting notes, that A.T. was "resilient," "[worked] well with other people, which is a positive change from last year," was "participating in class," and was "pushing herself." Id. at 567. In addition, the HOD completely ignored A.T.'s four months at Cumberland and the positive report on her improved ability to control her angry outbursts.
In essence, the HOD relied on selected pieces of evidence to support its conclusion that "it would have been appropriate to classify the Student as eligible for services as a Student with multiple disabilities at the time of the November, 2012 meeting." Id. at 838. This finding stands on faulty legs because the HOD never considered whether A.T.'s health conditions affected her education in November 2012 or whether any disability caused A.T., in November 2012, to need special education, See 20 U.S.C. § 1401(3)(A); 34 C.F.R. § 300.8(a)(1). Moreover, the HOD concluded that a "change in the delivery of instruction to the Student was appropriate for the Student in November, 2012," id. at 839-40, without considering whether A.T. needed a related service and not special education. See 34 C.F.R. § 300.8(a)(2)(i) ("[I]f it is determined, through an appropriate evaluation . . . that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part."). Finally, the HOD failed to consider whether lack of instruction in math accounted for A.T.'s below average scores in that discipline. Se 34 C.F.R. § 300.306(b)(1) ("A child must not be determined to be a child with a disability under this part — (1) If the determinant factor for that determination is — (ii) Lack of appropriate instruction in math.")
Properly analyzed as of November 2012 without later events or hindsight, the full record supports the November 2012 MDT decision that A.T. was ineligible for special education at that time. The record is clear that A.T. generally scored in the average range on the achievement assessment tests that were considered at the November 2012 MDT meeting. See AR at 158. She worked on an 8
The Court places less weight on the observations of A.T.'s former seventh grade teachers, particularly because they do not account for the treatment and therapy A.T. received at [Redacted\] Even though [Redacted\]'s prognosis for A.T. was "guarded" because she was returning home, A.T. made distinct progress on managing her behavioral and emotional issues during her four-month stay at [Redacted\]. See AR at 134-35, 137-39, Additionally, A.T.'s eighth grade teachers reported appropriate classroom behavior. The weight of the evidence leads this court to conclude that, as of November 2012, A.T.'s emotional and behavioral problems were not interfering with her classroom education. For the foregoing reasons, the Court finds that the HOD erred in its determination that E.L. Haynes denied A.T. a FAPE by failing to deem her eligible for services on November 8, 2012. The Court finds that A.T. was not eligible for special education under the IDEA as of November 2012. Accordingly, the Court also finds that the HOD erred in awarding A.T. compensatory education.
Upon request for an initial evaluation to determine whether a child is a "child with a disability" under the IDEA, an LEA must conduct an initial evaluation of the child using "a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining — (i) whether the child is a child with a disability; and (ii) the content of the child's individualized educational program." 20 U.S.C. § 1414(b)(2)(A). An LEA is obligated to assess a child "in all areas of suspected disability." Id. § 1414(b)(3)(B). The HOD concluded that E.L. Haynes failed to assess A.T. in all area of suspected disability by failing to conduct a functional behavior assessment of A.T. in connection with the November 2012 MDT meeting. AR at 842. Because the HOD relied on an error of law, its conclusion must be reversed.
The HOD erroneously asserted that "[c]ourts in the District of Columbia have held that it is `essential' for the LEA to develop [a functional behavior assessment]" and that "the failure to write up [a functional behavior assessment] should be deemed a procedural violation." AR at 840-41 (relying on Harris v. Dist. Of Columbia, 561 F.Supp.2d 63, 68 (D.D.C. 2008)). Harris did not hold that an LEA is obligated to conduct a functional behavior assessment in order to assess a child in all areas of suspected disability. Rather, Harris addressed the situation where a child had already been deemed eligible for services under the IDEA. Harris, 561 F. Supp.2d at 64, 67. In that context, the Court noted that a functional behavior assessment "plays an integral role in the development of an IEP" for a child with behavioral difficulties and emphasized that "the information gleaned from the assessment is central to formulating an IEP tailored to the needs of individual disabled children." Id. at 68 (emphasis added). Harris is not applicable here: the November 2012 MDT meeting was held for the purposing of determining A.T's eligibility for special education, and, having answered that question in the negative, never proceeded to developing an IEP.
Ms. Frost overreaches when she argues that "behavioral concerns constitute an area of suspected disability in which the Plaintiff was obligated to conduct an evaluation, specifically [a functional behavior assessment], as part of the evaluation process." Def. Cross-Mot. at 27. "Behavioral concerns" are not one of the enumerated disabilities identified in the IDEA. See 20 U.S.C. § 1401(3) ("The term `child with a disability' means a child . . . with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as `emotional disturbance'), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities."). Furthermore, the IDEA itself does not mandate a functional behavior assessment — or any other particular evaluation — as part of the evaluation process. Rather, an LEA must use "a variety of assessment tools and strategies." 20 U.S.C. § 1414(b)(2)(A). Here, there is no question that E.L. Haynes used a range of assessment procedures to evaluate A.T. and in fact considered A.T.'S behavioral issues by conducting the Behavior Assessment System for Children, Second Edition (BASC-II), all of which were discussed at the MDT meeting. See AR at 147 (Psych/Ed Evaluation noting that assessment of A.T. included a classroom observation; student interview; phone interview with A.T.'s case manager; Differential Ability Scales, 2
Following Mia Long's January 2014 request that E.L. Haynes reconsider A.T.'s eligibility for special education, Dr. Todd Christiansen completed a psychaitric evaluation of A.T. in March 2014, Id. at 666-72.
E.L. Haynes faults the HOD for failing to analyze whether Dr. Christiansen's evaluation met IDEA standards, but cites to the provision requiring local educational agencies to "use a variety of assessment tools and strategies" in the determination of a child's eligibility for special education services and the content of the child's IEP. See 20 U.S.C. § 1414(b); 34 C.F.R. § 300.304. These provisions do not establish the standards for any particular evaluation or assessment tool and therefore the HOD did not err by failing to compare Dr. Christiansen's evaluation against them. E.L. Haynes also suggests that "an evaluation must be deemed appropriate where the `methodology' was appropriate." Pl. Mot. at 27 (citing L.S. ex rel. K.S. v. Abington Sch. Dist., No. 06-5172, 2007 WL 2851268, at *11-12 (E.D. Pa. Sept. 30, 2007)).
Although the HOD did not express itself in these exact words, it is evident that the HOD found the psychaitric evaluation insufficient as a matter of methodology: A.T. was not interviewed. The HOD cited Dr. Christansen's testimony regarding the centrality of such an interview to a complete assessment and investigation of A.T.'s school refusal issues. See AR at 834, 843. Although E.L. Haynes vigorously defends Dr. Christiansen's psychaitric evaluation of A.T., see Pl. Mot. at 26-31; Pl. Reply at 21-23, it cannot overcome the obvious and fatal dificiency of the evaluation: there was no interview with A.T.
For the reasons above, the Court will grant in part and deny in part E.L. Haynes' motion for summary judgment and will grant in part and deny in part Ms. Frost's cross-motion for summary judgment. The HOD will be affirmed with respect to A.T's entitlements to an independent educational evaluation as of March 2014 and will be reversed in all other respects. Judgment will be entered in favor of Ms. Frost with respect to the independent educational evaluation, and judgment will be entered in favor of E.L. Haynes in all other respects. E.L. Haynes will be ordered to pay the balance of the cost, if any, of the independent educational evaluation that was conducted subsequent to the Court's January 15, 2015 Order. A memorializing Order accompanies this Opinion.
