Richardson et al v. District of Columbia

Cross MOTION for Summary Judgment

D.D.C.April 4, 2017

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ : JASMIN RICHARDSON, : : PLAINTIFF, : : Civ. Action No. 16-1786(APM) v. : : DISTRICT OF COLUMBIA, : : DEFENDANT. : ____________________________________ DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND CROSS MOTION FOR SUMMARY JUDGMENT Defendant respectfully opposes Plaintiff’s motion for summary judgment and moves this Court for an order of judgment in its favor in the above-captioned case. See Fed. R. Civ. P. 56. As established by the administrative record and the accompanying supporting memorandum, the challenged administrative determinations under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., were entirely appropriate. Plaintiff’s motion should be denied and judgment entered for Defendant because (1) the evaluations on which the ineligibility decision was based were sufficiently comprehensive; and (2) DCPS’s ineligibility decision in July 2015 was appropriate based on the data that was available at the time. Further grounds in support of Defendant’s motion are as stated in the attached memorandum of points and authorities. 1 These arguments and factual points are also 1LCvR 7(h)(2) provides that the requirement of statements of material facts as to which there is no dispute “shall not apply to cases in which judicial review is based solely on the administrative record. In such Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 1 of 30 2 relied upon, as indicated, in the supporting memorandum of points and authorities in opposition to Plaintiff’s motion for summary judgment. Respectfully submitted, KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division /s/ Veronica A. Porter___________ VERONICA A. PORTER [412273] Acting Chief, Civil Litigation Division Section II Suite 630 South 441 Fourth Street, NW Washington, D.C. 20001 (202) 724-6651 (202) 730-0644 (fax) E-mail: veronica.porter@dc.gov April 4, 2017 cases, motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record.” Accordingly, Defendant does not respond to Plaintiff’s Statement of Facts and, in following LCvR 7(h)(2), does not intend to convey to the Court that Plaintiff’s Statement of Material Facts are undisputed. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 2 of 30 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ : JASMIN RICHARDSON, : : PLAINTIFF, : : Civ. Action No. 16-1786(APM) v. : : DISTRICT OF COLUMBIA, : : DEFENDANT. : ____________________________________ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND CROSS MOTION FOR SUMMARY JUDGMENT This action is Plaintiff’s appeal of a June 13, 2016 Hearing Officer’s Determination (HOD). See Plaintiff’s complaint filed on September 7, 2016, at ¶¶ 1, 5 and page 11 [1]. In her complaint, Plaintiff alleges that the District of Columbia Public Schools (DCPS) violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., and denied C.S. a free appropriate public education (FAPE) (1) by failing to conduct a comprehensive evaluation in July 2015, Id. at ¶¶ 54-57; and (2) by failing to make an appropriate eligibility determination in July 2015. Id. at ¶¶59-62. As relief Plaintiff seeks a reversal of the June 13, 2016 HOD, attorney’s fees, an order that Defendant fund or conduct a functional behavioral assessment for C.S., and compensatory education for the denial of a FAPE. Id. at page 11. Alternatively, Plaintiff seeks a remand for the Hearing Officer to determine compensatory education. Id. Plaintiff’s Motion for Summary Judgment (Plaintiff’s Motion or Pl. Mtn.) should be denied and judgment entered for Defendant because (1) the evaluations on which the Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 3 of 30 4 ineligibility decision was based were sufficiently comprehensive; and (2) DCPS’s ineligibility decision in July 2015 was appropriate based on the data that was available at the time. STATEMENT OF FACTS The child, C.S., was three years old at the time the administrative hearing took place. See Administrative Record (AR) filed herein on January 27, 2017, at 463 [9]. On October 27, 2014, when C.S. was two years old, he was evaluated by Strong Start, the District of Columbia’s Early Intervention Program. AR at 27. The Battelle Developmental Inventory, Second Edition (BDI-II or Battelle), was administered as part of the evaluation. AR at 33. In the area of cognitive development, C.S. was described as a “very bright child” able to complete multi-piece puzzles, search for hidden objects, match multiple colors and “understand the cause and effect when playing with toys.” AR at 31. In the area of communication development, C.S.’ teacher reported that C.S. demonstrated appropriate eye contact and could associate spoken words to familiar objects, but inconsistently responded to commands in the classroom and had difficulty with transitions. Id. In the social/emotional development area, C.S.’ teacher reported that C.S. responded to his name by looking at the person calling his name, could discriminate between familiar and unfamiliar people, enjoyed story time and was able to pay attention to the story. Id. His teacher also reported that C.S. had difficulty interacting appropriately with peers and inconsistently showed a desire for social interaction. Id. Regarding his physical development, C.S.’ gross motor and fine motor skills were Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 4 of 30 5 deemed average. AR at 32. C.S. was assessed as having a “mild developmental delay” in the adaptive development area. Id. C.S. was found eligible for early intervention services under Part C of the IDEA, 2 20 U.S.C. §§ 1431–1445, because of his mild delays in adaptive, communication and social emotional development. AR at 45. An Individualized Family Service Plan (IFSP) was created on November 10, 2014, which provided one hour per week of speech- language therapy and one hour per week of occupational therapy. AR at 46. In April 2015, when C.S. was two years and seven months old, a referral for an initial evaluation was made to determine whether C.S. would be eligible for Part B services once he turned three years old. AR at 40. In July 2015, C.S. was administered a speech-language assessment and a comprehensive psychological evaluation. AR at 45, 55. Additionally, a classroom observation was conducted by his OT provider and a second classroom observation was conducted as part of his speech-language assessment. AR at 43-44, 47-48. A multi-disciplinary team (MDT) met on July 29, 2015, to determine C.S.’ eligibility for special education services, pursuant to Part B of the IDEA. AR at 72. During the meeting, the MDT discussed C.S.’ November 2014 Strong Start evaluation, the psychological evaluation and the occupational therapy (OT) observation. AR at 72- 73. The MDT also reviewed the criteria for autism spectrum disorder (ASD), speech- language impairment (SLI) and developmental delay (DD) to determine whether C.S. was eligible for services under one or more of those categories. AR at 73-74. The MDT 2 Part C of the IDEA covers early intervention services for infants and toddlers from birth to age three. Part B of the IDEA covers special education and related services that are provided to students from age 3 to age 22. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 5 of 30 6 determined that C.S. did not meet the eligibility criteria in any of the categories considered. AR at 74. On October 26, 2015, Plaintiff submitted a written request that C.S. be evaluated for special education services. AR at 90. Plaintiff specifically requested a psychological evaluation, an OT assessment and a speech-language assessment. Id. On November 6, 2015, Plaintiff submitted a written request for DCPS to fund an independent speech- language evaluation, a comprehensive psychological or a neuropsychological evaluation and an audiological assessment. AR at 106-107. Plaintiff also requested an updated OT evaluation. AR at 107. On November 17, 2015, DCPS provided authorization for Plaintiff to obtain a comprehensive psychological and a speech-language evaluation. AR at 112. Dr. Jay Lucker administered an independent speech-language evaluation in February 2016. AR at 116. At the time C.S. was three years and 5 months old. Id. Dr. Lucker found that C.S.’ receptive language skills and his social/pragmatic communication skills were appropriate for his age level. AR at 122. He further found that C.S.’s expressive language skills were two standard deviations poorer than they were at the time the July 2015 evaluations were administered. Id. Dr. Lucker concluded that C.S. had an expressive language deficit and recommended that he receive speech- language therapy. Id. He also recommended that C.S. receive special education services because of his “inability to regulate his emotional state, react inappropriately to emotional issues, and present with inappropriate behaviors both verbal . . . and non- verbal communication.” Id. He further recommended that C.S. receive a comprehensive clinical psychological or a neuropsychological assessment. Id Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 6 of 30 7 C.S. was given a comprehensive psychological evaluation in February 2016. AR at 129. The examiner found that C.S.’ full scale IQ fell in the “extremely low range” of functioning, suggesting several cognitive deficits when compared to his same aged peers. AR at 143. The examiner further found that C.S.’ visual processing suggested impairment, although he performed in the average range in spatial problem-solving, manipulative abilities and fluid intelligence. Id. The examiner also found that C.S.’ receptive vocabulary was a “significant strength when compared to his other cognitive abilities,” and that his receptive and expressive abilities were within “age-expectancy or average range.” Id. The examiner concluded that C.S. has developmental deficits and displayed symptoms associated with ASD. AR at 144. The examiner opined that C.S. may meet the special education eligibility requirements under the DD classification. AR at 145. The examiner also recommended that an updated Autism Diagnostic Observation Schedule (ADOS) be conducted to test C.S. for autism. Id. The examiner further recommended that C.S. receive an audiological evaluation and a functional behavioral assessment (FBA). AR at 146. On March 17, 2016, Plaintiff submitted a written request for DCPS to conduct an audiological evaluation and a FBA. AR at 157. An audiological examination was conducted on April 14, 2016, and C.S.’ hearing was determined to be normal in both ears. AR at 222. On March 24, 2016, Plaintiff filed an administrative due process complaint alleging that DCPS violated the IDEA and denied C.S. a FAPE (1) by failing to comprehensively evaluate C.S. and/or failing to comprehensively evaluate C.S. in a Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 7 of 30 8 timely manner following the initial referral for evaluations in April 2015; and (2) by failing to identify C.S. as eligible for special education services as a student with DD and/or ASD and/or developing an IEP and providing services. AR at 169, 173, 179-180. For relief, Plaintiff requested that C.S. be found eligible for special education services under the disability classification of either DD or ASD, that an IEP be developed to include small group behavioral services, speech-language therapy and OT, that DCPS conduct an FBA and develop a behavior plan, that DCPS conduct an OT evaluation, and that DCPS provide compensatory education and pay attorney’s fees. AR at 178-179. On April 11, 2016, C.S. was administered an OT evaluation. AR at 203. C.S. was found to have strengths in the areas of functional neuromuscular skills, posture control, dressing and hygiene, and needing support in grasping and visual motor integration. AR at 213. The examiner did not find that his attention and participation were related to sensory processing issues. Id. The examiner recommended that C.S. participate in activities that would develop fine motor skills—grasping, dexterity and eye- hand coordination—such as stringing beads, buttoning, using tweezers, tracing and cutting out shapes. AR at 214-215. The examiner opined that C.S. may need extra verbal or visual cues to remain focused in the classroom. AR at 214. A prehearing order was issued on April 19, 2016, and was revised on May 16, 2016. AR at 275, 330. In the revised prehearing order, the Hearing Officer identified three distinct issues for adjudication: whether DCPS denied C.S. a FAPE (1) by not comprehensively evaluating him and/or conducting comprehensive evaluations in a timely manner following the initial April 2015 referral for evaluations; (2) by erroneously determining that C.S. was ineligible for special education services as a student with DD Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 8 of 30 9 and/or ASD and by continuing to find him ineligible despite having been provided additional evaluations in February 2016; and (3) by not ensuring that an IEP and services were provided to C.S. following the initial referral by Plaintiff in April 2015. AR at 330- 331. An MDT met on April 22, 2016, to discuss C.S.’ eligibility for special education services. AR at 291. The MDT reviewed the eligibility criteria for DD, ASD and SLI and determined that C.S. was eligible for special education services under the disability classification of DD. AR at 299. The MDT met again on May 12, 2016, to develop an IEP for C.S. AR at 311, 320. The IEP included two goals in adaptive/daily living skills, two cognitive goals and two goals in motor skills/physical development. AR at 322-325. The IEP also included five hours per week of specialized instruction, two hours per month of OT in the general education setting, and two hours per month of OT outside the general education setting. AR at 325. On May 19, 2016, Dr. Sharon Lennon prepared a compensatory education plan for C.S. AR at 339. She recommended that C.S. be awarded 120 hours of specialized tutoring, 20 hours of behavior support services and 32 hours of OT. AR at 343. An administrative due process hearing was held on June 1, 2016. AR at 372. During the hearing, school psychologist Sharron Williams, who has completed more than 900 psychological assessments in her career, testified on behalf of DCPS. AR at 522- 523. She testified about the components of a comprehensive psychological evaluation, and explained the difference between an evaluation administered to a child younger than three years old and an evaluation administered to a child older than three years old. AR at 537, 553-557. She further testified that a child with a 25% delay in one or more Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 9 of 30 10 functional areas qualifies for Part C services and is provided an ISFP to support the child’s areas of growth. AR at 602-603. Occupational therapist Carol Kramp also testified on behalf of DCPS. AR at 608. She testified that she reviewed the available data, conducted her own observation and concluded in July 2015 that C.S. did not need OT services. AR at 610-611, 614, 616, 618. Andrea Handscomb testified that she a Master’s Degree in speech pathology, has worked as a speech pathologist for 15 years, and is currently a DCPS speech pathologist with Early Stages. AR at 637-638. Her duties include working with children who are transitioning out of Part C, and determining whether they qualify for services under Part B. AR at 638. She testified that the Office of the State Superintendent of Education (OSSE) directs transition participants to presume that children eligible for services under Part C are also eligible under Part B. AR at 639. Ms. Handscomb testified that she met C.S in July 2015, and evaluated him to see if he qualified for services under Part B. AR at 639. At that time, she determined that C.S. was not eligible for Part B services because his scores were in the average range and he did not present as a child with autism. AR at 642. Ms. Handscomb further testified that she met with C.S. in the spring of 2016 to determine if C.S. needed speech-language services. AR at 643. At that time, she conducted a classroom observation, spoke to his teacher and grandmother, and reviewed Dr. Lucker’s February 2016 speech-language evaluation. AR at 639, 643-644. She testified that the results of Dr. Lucker’s evaluation were similar to the results of the evaluation she conducted in July 2015 with two exceptions: C.S. progressed from having Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 10 of 30 11 a mild delay in receptive language to an age-appropriate level, but exhibited a significant decrease in his expressive language skills. AR at 644. Ms. Handscomb noted that Dr. Lucker’s report indicated that there were behavioral challenges during the evaluation, and she testified that those challenges may have affected the results. Id. In other words, C.S.’s dysregulation, or social emotional state, affected his ability to access his expressive language. AR at 645. Ms. Handscomb testified that she disagreed with Dr. Lucker’s conclusion that C.S. needed speech language services because she attributed C.S.’ significant drop in his expressive language score—from 103 points to 73 points—to dysregulation. “A 30-point difference . . . . would require some sort of neurological injury,” and there was no evidence that C.S. suffered a neurological injury between July 2015 and February 2016. AR at 655, 658. She further testified that providing speech language services would not get to the root of C.S.’ dysregulation problems and would be contraindicated to a child with social emotional difficulties. AR at 657. Ms. Handscomb concluded that C.S. did not qualify for speech-language service in 2016, but she did support his eligibility for Part B services in the DD category. AR at 648. Keisha Mack, a clinical psychologist who was qualified as an expert in conducting psychological evaluations for children suspected of having an IDEA disability, testified on behalf of Plaintiff. AR at 404. She testified that her company conducted an independent comprehensive psychological evaluation of C.S. AR at 406. She also testified that the evaluation conducted by her company included a Battelle assessment, behavior inventories, the BASC [behavior assessment system for children], a teacher-parent form, a visual motor integration test, a classroom observation, the WPPSI Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 11 of 30 12 [Wechsler Preschool and Primary Scale of Intelligence] and the Gillian Autism Rating Scale (GARS). AR at 414. She further testified that her company diagnosed C.S. as having a global developmental delay and a provisional diagnosis of autism. AR at 416. Dr. Mack further testified that she had reviewed the July 2015 comprehensive psychological evaluation that was conducted by Early States, and opined that the evaluation was not comprehensive because it had several “missing” pieces: no cognitive testing, no teacher interviews, no academic testing no social emotional testing and no classroom observation. AR at 407-408. She also opined that Early Stages should not have relied on the Battelle assessment from the 2014 Strong Start evaluation because the Battelle was almost one year old, and a child can experience many developmental changes in a year’s time. AR at 412-413. Sharon Lennon, the CEO and director of the company that conducted the February 2016 comprehensive psychological evaluation, also testified on behalf of Plaintiff. AR at 433. She testified that she relied on the 2016 psychological evaluation to develop a compensatory education plan for C.S. AR at 435, 437. Wanda, Richardson, C.S.’ grandmother also testified at the hearing. AR at 463. She testified that C.S. was attending the National Children’s Center (NCC) in the pre-K-3 program, was in a classroom of 15-20 students, and that the classroom had 3 teachers and an aide. AR at 476-478. She also testified that C.S. was in a classroom with disabled and non-disabled peers. AR at 477. She further testified that in the previous school year C.S. received speech-language and OT services both in the classroom and outside the classroom. AR at 480. She also testified that she did not know when the services stopped in the fall of 2015. AR at 476. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 12 of 30 13 Wilma Gaines, C.S.’ educational advocate, testified that she attended the April 22 and May 12, 2016 MDT/IEP meetings. AR at 485, 505. She further testified that the MDT reviewed C.S.’ independent evaluations during the April 22, 2016 meeting, and finalized C.S.’ IEP during the May 12, 2016 meeting. AR at 507, 513. An HOD was issued on June 13, 2016. AR at 3. The Hearing Officer concluded that DCPS’s initial and subsequent eligibility determinations were timely, that the evaluations were sufficiently comprehensive and that DCPS’s finding of ineligibility in July 2015 were appropriate. 3 AR at 14-22. STANDARD OF REVIEW 1. Summary Judgment Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir. 1994). Although a court should draw all reasonable inferences from the records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier of fact could find for the nonmoving party; to be material, the factual assertion must be capable of affecting the substantive outcome of the litigation. See id.; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir. 1987). 3 Plaintiff did not appeal the Hearing Officer’s conclusions with respect to the timeliness issue. See Pl. Complaint [1], generally. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 13 of 30 14 In cases such as this, the IDEA dictates that “the court [ ] shall receive 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 such relief as the court determines appropriate.” 20 U.S.C. §1415(i)(2)(B). When (as here) neither party has requested that this Court hear additional evidence, the “motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.” Savoy v. District of Columbia, 844 F. Supp. 2d 23, 30 (D.D.C. 2012) (quoting Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). II. The Review of Administrative Decisions under IDEA IDEA provides for judicial review in state or federal court for “[a]ny party aggrieved by the findings and decision” rendered in a due process hearing. 20 U.S.C. §1415(i)(2)(A). In conducting such review, the “preponderance of the evidence” standard of 20 U.S.C. §1415(i)(2)(B)(iii) “is by no means an invitation to the court to substitute their own notions of sound educational policy for those of the school authorities which they review.” Board of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). Stated differently, the court should not “reverse the hearing officer’s findings simply because [the court] disagree[s] with them.” Board of Educ. of Arlington Heights Sch. Dist. No. 25 v. Illinois State Board of Educ., 2001 U.S.Dist.LEXIS 6994, 12 (N.D.Ill. March 19, 2001). The burden of proof rests with the party challenging the administrative determination, who must “at least take on the burden of persuading the court that the hearing officer was wrong.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 14 of 30 15 (D.C.Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). While the Court is authorized to make an independent determination, “it must also give ‘due weight’ to the administrative proceeding and afford some deference to the expertise of the hearing officer and school officials responsible for the child’s education.” Simmons v. District of Columbia, 355 F. Supp. 2d 12, 16 (D.D.C. 2004) (quoting Lyons v. Smith, F.Supp. 414, 418 (D.D.C. 1993). However, because the IDEA permits a reviewing court to entertain additional evidence at the request of a party, the hearing officer’s findings are owed “‘less deference than is conventional’ in administrative proceedings.” Reid, supra at 521. Nevertheless, the Court should “defer to the [hearing officer’s] factual findings unless it can point to contrary nontestimonial extrinsic evidence on the record.” Savoy, supra at 30 (quoting S.H. v. State-Operated School Dist. Of the City of Newark, 336 F.3d 260, 270 (3 rd Cir. 2003). ARGUMENT Plaintiff filed her motion for summary judgment (Plaintiff’s Motion or Pl. Mtn.) on February 28, 2017 [10]. In her motion, she argues (1) that the April 2015 psychological evaluation was insufficiently comprehensive; (2) that the failure to comprehensively evaluate C.S. resulted in an inappropriate eligibility decision and was a denial of a FAPE; and (3) that she is entitled to compensatory education because of the denials of a FAPE. Plaintiff’s Motion should be denied and judgment entered for Defendant because (1) the evaluations on which the ineligibility decision was based were sufficiently comprehensive; and (2) DCPS’s ineligibility decision in July 2015 was appropriate based on the data that was available at the time. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 15 of 30 16 I. The Evaluations on which the Ineligibility Decision was Based were Sufficiently Comprehensive The implementing regulations of the IDEA provide that in conducting an evaluation, the public agency must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent that may assist in determining whether a child is a child with a disability.” 34 C.F.R. § 300.304(b)(1)(i). Further, the public agency must assess the child in all areas related to the suspected disability. § 300.304(c)(4). As part of the initial evaluation, the IEP team must: (1) Review existing evaluation data on the child, including— (i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based, local, or State assessments, and classroom-based observations; and (iii) Observations by teachers and related services providers 34 C.F.R. § 300.305(a)(1) C.S.’s evaluations conformed to the requirements of the applicable regulations. Accordingly, there is no denial of a FAPE. An MDT met on July 29, 2015, to determine whether C.S. was eligible to receive special education and related services under Part B of the IDEA. AR at 72. The MDT reviewed the October 2014 Strong Start evaluation, the July 2015 speech-language assessment and the July 2015 psychological evaluation, and discussed the July 2015 OT observation, AR at 64, 66-68, 72-73. Both Plaintiff and C.S.’ grandmother participated in the MDT meeting. AR at 72, 76. The Strong Start evaluation included an interview with Plaintiff, a review of C.S.’ medical history, and the Battelle assessment, which measures a child’s cognitive, Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 16 of 30 17 communication, social, fine motor, gross motor, perceptual motor and adaptive skills. AR at 28-34, 539, 544. The speech-language assessment included administration of an otoacoustics emissions test, a Preschool Language Scales – Fifth Edition evaluation (PLS-5), which measures receptive and expressive spoken language skills, classroom observations, notes taken during C.S.’ speech pathology sessions, interviews with his teacher, service providers and adult family members, and a review of the Strong Start evaluation. AR at 45-49. The psychological assessment included administration of the ADOS-2, which evaluates a child for autism, the PDDBI, which evaluates a child’s social/emotional/behavioral functioning, a review of the IFSP and the classroom observation conducted by the speech pathologist, an interview with family members and a review of the Strong Start evaluation. AR at 55. Relying on the testimony of Keisha Mack, Plaintiff argues that the 2015 comprehensive psychological evaluation was not comprehensive because it did not include a classroom observation, teacher review or ratings scale. Pl. Mtn. at 16-17. She further argues that the classroom observation was a critical component of the evaluation process because “you definitely want to have the opportunity to see them in that environment to determine, you know, firsthand, also what may be happening in that environment.” Pl. Mtn. at 16; AR at 408. As previously discussed, the speech-language assessment included classroom observations, and the psychological evaluation considered these observations in its report. AR at 47, 57. An observation was also conducted by an occupational therapist. AR at Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 17 of 30 18 68. The speech-language assessment and psychological evaluation also included interviews with C.S.’ teachers and family members. AR at 48-49, 55. As Plaintiff’s own witness testified, a classroom observation is important because one should see how the child is doing in the school environment. DCPS conducted not one, not two, but three classroom observations. It should not matter whether the observation was conducted by a speech-language pathologist, an OT provider or by a school psychologist, and Plaintiff has not presented any reason why the MDT should not have relied on those three observations. Thus, Plaintiff’s argument is without merit. Plaintiff also argues the testimony of DCPS’s psychologist Sharron Williams should be given little weight because the DCPS counsel did not qualify her as an expert witness. Pl. Mtn. at 18. The fact that the DCPS counsel did not include the witness’ curriculum vitae in its disclosure statement, thereby preventing her from being qualified as an expert witness, does not suddenly render her knowledge and experience unreliable. It simply means that Dr. Williams could not provide opinion testimony. Dr. Williams has a Master’s Degree and a Doctorate in clinical psychology, and she has conducted more than 900 psychological assessments throughout her career. AR at 522-523. She can certainly shed light on the psychological evaluation process. When Dr. Williams testified during the hearing, she testified about the components of a comprehensive psychological evaluation, and explained the difference between an evaluation administered to a child younger than three years old and administered to a child older than three years old. She testified that a comprehensive psychological evaluation assesses a child’s cognitive abilities, academic achievement or functioning, and social-emotional development. AR at 537. She explained that a psychological Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 18 of 30 19 evaluation administered to a child younger than three years old is generally comprised of a developmental screening or assessment such as the Battelle, while a child older than three is given a psychological evaluation that evaluates a child’s global intelligence—the ability to reason and problem solve with and without the use of language. AR at 553- 554. Dr. Williams also testified that psychological evaluations administered to children older than three may include the BASC [behavioral assessment scale], the VMI [a fine motor test that examines a child’s ability to interpret visual information spatially], the WPPSI [Wechsler Preschool and Primary Scale of Intelligence] and the GARS [an autism ratings scale]—tests that are usually not administered to children under the age of two years and six months. AR at 554-557. Plaintiff further argues that the MDT should not have relied on the Strong Start evaluation, which included administration of the Battelle assessment, because the resulting data was old. Pl. Mtn. at 18-19. Plaintiff’s position is contrary to the requirements of the IDEA. The implementing regulations state that the public agency must review existing evaluation data on the child; thus, it was incumbent upon the MDT to review the Strong Start evaluation. 34 C.F.R. § 300.305(a)(1). Moreover, there is no evidence that the results of the Strong Start evaluation—which was administered eight months prior to the MDT ineligibility decision—were flawed or unreliable. In addition to the classroom observations and teacher and parent interviews, the DCPS psychological evaluation included the PDDBI, which measures social emotional functioning, and the ADOS-2, which evaluated C.S.’ behavior for signs of autism. Thus, Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 19 of 30 20 Plaintiff’s argument that DCPS failed to assess C.S.’ behavioral challenges is without merit. Upon cross examination, Dr. Mack admitted that she had not reviewed the Strong Start evaluation and had no idea what data was contained in that evaluation. Nor had she reviewed the May 2015 IFSP, the July 2015 family interviews summary, the July 2015 PDDBI or the July 2015 ADOS-2 evaluation. AR at 423-424. Indeed, Dr. Mack conceded that she could not dispute the conclusions of the 2015 Early Stages evaluations because she had not reviewed the underlying data. AR at 425. The record evidence clearly shows that the MDT used a “variety of assessment tools and strategies” to gather relevant information about C.S.—including information provided by Plaintiff—assessed C.S. in all areas of suspected disability, and “reviewed existing evaluation data, including observations by teachers and service providers” as required by the IDEA regulations. See 34 C.F.R. §300.304 and §300.305. Accordingly, the court should uphold the Hearing Officer’s conclusion that the evaluations on which the ineligibility decision was based were sufficiently comprehensive, and there was no denial of a FAPE. II. DCPS’ July 2015 Ineligibility Decision was Appropriate Based on the Data that was Available at the Time In July 2015, the MDT reviewed all of the relevant data available at the time—the Strong Start evaluation, the speech-language assessment, the psychological assessment, the OT observation, interviews with family members, teachers and service providers—and determined that C.S. was not eligible to receive special education and related services under Part B of the IDEA, because he did not meet the criteria for DD or ASD. C.S.’s ineligibility decision was appropriate; thus, there was no denial of a FAPE. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 20 of 30 21 The speech-language assessment report included a review of the October 2014 Strong Start evaluation, an otoacoustics emissions test, a Preschool Language Scales - Fifth Edition test (PLS-5) that measures receptive and expressive spoken language skills of preschool age children, notes taken during C.S.’ speech pathology sessions, classroom observations, and interviews with his teachers, service providers and adult family members. AR at 45-49. The report concluded that C.S’ language was in the “average range, with mildly delayed auditory processing skills and average expressive language skills.” AR at 52. The report further concluded that his auditory processing difficulties may be related to his tendency to “ignore people and activities when he is not interested in a task,” or may be related to his social-emotional development. Id. The report also concluded that C.S.’ expressive language skills were “adequate for accessing the general education classroom.” Id. Andrea Handscomb, the examiner and author of the speech-language report, testified that C.S. had made gains in his communication skills since the October 2014 Strong Start evaluation. AR at 640. His expressive skills were age appropriate and his vocabulary was good. Id. Although C.S. had “very mild” deficits in processing spoken language, she testified that he appeared to be functioning overall in the average range. Id. Ms. Handscomb also testified that C.S.’ social skills were both typical and atypical, and the atypical behavior seemed to be related to social emotional dysregulation. AR at 641. Thus, she referred C.S.’s family to parent-child interaction therapy. AR at 641-642. Ultimately, Ms. Handscomb determined in July 2015 that C.S. was not eligible for Part B services because his assessment scores were in the average range and he did not present as a child with autism. AR at 642. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 21 of 30 22 As part of the July 2015 comprehensive psychological evaluation, the evaluator reviewed C.S.’ Strong Start evaluation, reviewed the IFSP, reviewed the classroom observation conducted as part of the speech-language evaluation, interviewed family members, conducted a Pervasive Developmental Disorder Behavior Inventory (PDDBI) and administered the Autism Diagnostic Observation Schedule - Second Edition (ADOS- 2). Id. The evaluator noted that C.S. scored in the “average” range in expressive language and within the “below average” range in receptive language. AR at 57. The ADOS-2 evaluation included observations in the areas of language and communication, reciprocal social interaction, play, stereotyped behaviors and restricted interests and other abnormal behaviors. AR at 57-59. When comparing C.S.’ scores with those of children with autism, the evaluator concluded that C.S. was “non-spectrum,” and his behavior was “not consistent with an autism spectrum disorder.” AR at 59. Regarding the PDDBI, the evaluator indicated that the results should be “interpreted with extreme caution and not considered representative of C.S.’s current social/emotional/behavioral functioning,” because Plaintiff’s domain ratings were “significantly” different than what was observed during the evaluation and what was documented in the IFSP. AR at 60. The evaluator indicated that C.S. demonstrated “average” cognitive, communication social and motor developmental skills, as well as some challenging behaviors such as verbal and physical aggression. Id. The evaluator concluded that C.S. “demonstrates adequate developmental skills in order for him to participate in age appropriate learning activities and make progress within the general education curriculum.” AR at 62. The evaluator recommended that C.S. receive general education Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 22 of 30 23 accommodations “to facilitate appropriate peer interactions and engage him in structured learning activities.” AR at 60. When school psychologist Sharron Williams testified during the hearing, she testified that part of her duties as a school psychologist includes determining whether a child who had received Part C services would still need services once the child transitions to Part B. AR at 527. She testified that she typically begins reviewing a child for transition once the child is two years and six months old. AR at 530. In that capacity, she testified that she reviewed C.S.’ October 2014 Strong Start evaluation, the July 2015 speech-language assessment and classroom observation, the July 2015 comprehensive psychological evaluation and the July 29, 2015 MDT meeting notes. AR at 527-529, 545. She further testified that the Strong Start evaluation, which relied on the Battelle assessment, evaluated C.S.’s adaptive functioning, cognitive functioning, communication, personal social skills and fine motor skills. AR at 539, 544. She testified that the July 2015 testing showed that C.S. did not exhibit behavior consistent with autism, and that his skills were in the typical range of development in the areas of cognitive functioning, communication skills, fine motor development and adaptive functioning. AR at 603-604. A classroom observation of C.S. was conducted on July 2, 2015, at the National Children’s Center. AR at 44. C.S. was observed following classroom routines and directions, exhibiting normal neuromuscular functionality, age appropriate fine motor skills and engaging in appropriate self-care. Id. He did not appear to be overstimulated by the classroom environment. Id. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 23 of 30 24 When occupational therapist Carol Kramp testified during the hearing, she testified that her duties included participating in C.S.’ transition meeting in July 2015, and providing input on whether C.S. would need OT after transitioning to Part B. AR at 610. In that capacity, she spoke to C.S.’ current OT provider, conducted her own observation of C.S. and reviewed the 2014 Strong Start evaluation. AR at 610-611, 618. She testified that C.S.’ fine motor skills were appropriate for his age and his OT skills were in the average range. AR at 614, 616. She also testified that his OT provider informed her that C.S. was performing sequencing activities 80% of the time. AR at 634- 635. Based on the available data, she determined in July 2015 that C.S. did not need OT services. AR at 618. In addition to reviewing the assessments and classroom observations, the MDT also reviewed the criteria for Autism Spectrum Disorder (ASD), Developmental Delay (DD) and Speech-Language Impairment (SLI). AR at 84-89. To be found eligible for either of these disability categories, C.S. needed to exhibit all of the behaviors and characteristics of those specific disabilities. With respect to ASD, C.S. exhibited just two of the five criteria necessary to be found eligible under that disability category. AR at 84-85. With respect to DD, C.S. exhibited three of the five behaviors, and with respect to SLI, did not meet any of the criteria necessary to be found eligible under that disability category. AR at 86-89. In her motion, Plaintiff argues that DCPS denied Plaintiff a FAPE because the agency “deprived the MDT of information that was crucial in making an appropriate determination, hindering [Plaintiff’s] participation in the process and making rendering an appropriate decision impossible. Pl. Mtn. at 24. Plaintiff relies on Timothy O v. Paso Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 24 of 30 25 Robles Unified Sch. Dist., 822 F. 3d 1105 (9th Cir. 2016) to support her position. In Timothy O, the student had received speech, language and OT services under Part C of the IDEA. When the student was approaching his third birthday, he was given a psychological assessment, however that assessment did not include any testing for autism. The IEP that was eventually created did not include goals to address the student’s autism. The Ninth Circuit held that the school district denied the student a FAPE because the school district was aware that autism was a suspected disability and the school district failed to formally assess him for autism. The Ninth Circuit concluded that this failure to assess was a procedural violation of the IDEA because the MDT was unable to design an IEP that met the student’s unique needs. Here, Plaintiff speaks in general terms about “basic components” of a comprehensive evaluation, but fails to articulate the assessments that should have been conducted that were not, or the disability DCPS should have found but did not. Pl. Mtn. at 25. C.S. received speech-language therapy and OT services under Part C because he had mild delays in adaptive, communication and social emotion development. When it was time to determine whether services should continue under Part B, C.S. was given a speech-language assessment, an OT observation and a psychological evaluation that included assessments for autism and behavioral issues. Here, DCPS evaluated C.S. in all areas of suspected disability; therefore, there is no IDEA violation. Thus, Timothy O is distinguishable, and Plaintiff’s reliance on Timothy O is misplaced. Plaintiff also argues that finding C.S. eligible for services in May 2016 is evidence that DCPS should have found C.S. eligible for Part B services in July 2015. Pl. Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 25 of 30 26 Mtn. at 27-28. Plaintiff’s argument is without merit. During her testimony, occupational therapist Carol Kramp explained that a child who did not need OT services at two years and ten months old may need services at three and one-half years old because more is expected of the older child: The Battelle requires a child – a two-year-old child is expected to be able to pick up an object and put it in a cup, put a coin in a slot, put a peg in a hole, in a peg hole in [a] pegboard, scribble. That sort of thing. That’s what is expected of a two to three-year-old. A three to seven-year-old is expected to draw neat shapes, is expected to copy three dimensional patterns with blocks, is expected to lace a card, lace blocks, stack blocks, fold paper, snip paper with scissors. It’s a vast degree more of what is expected of a three to seven-year-old. AR at 623. Ms. Kramp further testified that she evaluated C.S. in April 2016. AR at 610, 619. As part of that evaluation she spoke to his teacher, conducted a classroom observation, and administered the Peabody Developmental Motor Scales (Peabody), which tests grasping and visual motor skills. AR at 619-620. She testified that C.S. scored below average on the Peabody, so she recommended that he receive OT services to support his fine motor development. AR at 621-622. She also testified that she developed the OT goals on the May 2016 IEP. AR at 624. Speech pathologist Andrea Handscomb also testified that it is possible for a child who had been determined ineligible for services to need services months later: As the child gets older, there is (sic) additional skills that the child would need to have. And so, if a child is showing some mild weakness [at an earlier age], it’s possible [that] as a child gets older, if they don’t develop those skills, they can fall into a level that goes from, you know, weakness to qualifying for services. AR at 650. School psychologist Dr. Sharron Williams also explained that a child who needed Part C services may no longer need services once the child transitioned to Part B. AR at Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 26 of 30 27 602-603. She testified that she attended the April 22, 2016 eligibility meeting, and believed that C.S. was eligible to receive special education services at that time because his skill level had not matured from July 2015, to April 2016, and C.S. had not demonstrated any growth in adaptive functioning, personal, social or socio-emotional functioning. AR at 532, 535. She also testified that she participated in the development of the May 2016 IEP. AR at 565. The record evidence shows that the MDT’s decision to find C.S. ineligible for special education and related services in July 2015 was appropriate. Accordingly, the court should uphold the Hearing officer’s conclusion that DCPS’s July 2015 ineligibility decision was appropriate based on the data that was available at the time, and there was no denial of a FAPE. III. Plaintiff is not Entitled to Compensatory Education Compensatory education has been determined to be an appropriate remedy once it has been shown that a child is entitled to coverage under the Act and the child was denied that coverage. Reid v. District of Columbia, 310 F. Supp. 2d 137, 149 (D.D.C. 2004). Thus, compensatory education may only be awarded if there is a finding of a denial of a FAPE. As previously argued, there has been no denial of a FAPE; therefore, Plaintiff is not entitled to compensatory education. If, however, the Court does believe that C.S. is entitled to compensatory education, the plan devised by Sharon Lennon should be rejected because her plan does not meet the Reid standard. An award of compensatory education must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid at 524. Here, Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 27 of 30 28 Plaintiff failed to show the educational level C.S. would have been had he received special education and related services. Dr. Lennon noted that the early stages services stopped on September 1, 2015, when C.S. turned three years old. AR at 342. She further noted that C.S. received no services for a 32-week period from September 1, 2015, through May 12, 2016, the date the IEP was developed. Id. She also noted that C.S.’ IEP provided five hours per week of specialized instruction and four hours per month of OT. Id. Using the services to be provided by the IEP as a guide, Dr. Lennon calculated that C.S. missed 160 hours of specialized instruction and 64 hours of OT during that period. Id. When asked by the Hearing Officer what information she had that could shed light on the position C.S. would have been in had he received services from September 2015 through May 2016, Ms. Lennon testified that she could not say. AR at 454-455. Hearing Officer: Is it fair to say that as of May 1, 2016, you don’t have the information that allows you to know where he is with regard to behavior, with regard to academics, with regard to fine motor OT issues? Ms. Lennon: It is fair to say that I can’t pinpoint exactly where he should be in terms of that, but he would be definitely operating at a higher grade level. He would definitely [be] placed on a path. AR at 454-455. Plaintiff did not satisfy the criterion established in Reid to demonstrate an entitlement to the compensatory education described in Dr. Lennon’s compensatory education plan. Accordingly, Plaintiff’s Motion must be denied. CONCLUSION The evaluations on which the ineligibility decision was based were sufficiently comprehensive. Further, DCPS’s ineligibility decision in July 2015 was appropriate, based Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 28 of 30 29 on the data that was available at the time. Because there was no denial of a FAPE, Plaintiff is not entitled to compensatory education. Accordingly, this Court should deny Plaintiff’s Motion and enter a judgment for Defendant. Respectfully submitted, KARL A. RACINE Attorney General for the District of Columbia GEORGE C. VALENTINE Deputy Attorney General Civil Litigation Division /s/ Veronica A. Porter___________ VERONICA A. PORTER [412273] Acting Chief, Civil Litigation Division Section II Suite 630 South 441 Fourth Street, NW Washington, D.C. 20001 (202) 724-6651 (202) 730-0644 (fax) E-mail: veronica.porter@dc.gov April 4, 2017 Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 29 of 30 30 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ : JASMIN RICHARDSON, : : PLAINTIFF, : : Civ. Action No. 16-1786(APM) v. : : DISTRICT OF COLUMBIA, : : DEFENDANT. : ____________________________________ ORDER On consideration of the parties’ cross motions for summary judgment, oppositions, the responses thereto and the record in this proceeding, it is, this _____ day of ______________, 2017, ORDERED, that Plaintiff’s motion for summary judgment is DENIED; it is FURTHER ORDERED, that Defendant’s cross motion for summary judgment is GRANTED; it is FURTHER ORDERED, that the June 13, 2016 Hearing Officer’s Determinations are affirmed; it is FURTHER ORDERED that judgment should be and hereby is entered in favor of Defendant. _______________________________________ UNITED STATES DISTRICT COURT JUDGE Case 1:16-cv-01786-APM Document 12 Filed 04/04/17 Page 30 of 30