Richardson et al v. District of Columbia

MOTION for Summary Judgment

D.D.C.February 28, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ : JASMIN RICHARDSON et al., : Plaintiffs : : : : v. : : Civil Action No. 16-cv-1786 (APM) : : DISTRICT OF COLUMBIA : Defendant : : : : PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT COMES NOW, the Plaintiffs, by and through their attorney, Robert W. Jones of James E. Brown & Associates, PLLC, pursuant to Local Rule 7.1 and Rule 56 of the Federal Rules of Civil Procedure, and respectfully move this Honorable Court for an entry of summary judgment for the Plaintiffs for the reasons that are more specifically set forth in the attached Memorandum of Points and Authorities filed contemporaneously herewith and incorporated herein by reference as though set forth in its entirety. Wherefore, upon these premises considered, Plaintiffs respectfully pray that this Honorable Court grant their motion for summary judgment. ______________/s/_________________ Robert W. Jones, Bar No. DC997776 Associate Attorney James E. Brown & Associates, PLLC 1220 L Street, 7 th Floor Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 1 of 32 2 Washington, D.C. 20005 (202) 742-2000 (voice) (202) 742-2098 (fax) Attorneys for Plaintiff Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 2 of 32 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ : JASMIN RICHARDSON et al., : Plaintiffs : : : : v. : : Civil Action No. 16-cv-1786 (APM) : : DISTRICT OF COLUMBIA : Defendant : : : : PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT COMES NOW, the Plaintiffs, by and through their attorneys, Robert W. Jones of James E. Brown & Associates, PLLC, and in their Memorandum of Points and Authorities Submitted in Support of Their Motion for Summary Judgment, respectfully represent unto this Honorable Court as follows: INTRODUCTION This case concerns an inappropriate evaluation of the minor child C.S., and the resulting denial of C.S.’s right to a free appropriate public education (“FAPE”) under the Individuals with Disability Education Act, (“IDEA”) 20 U.S.C. §§ 1400-1482. In July 2015, the Defendant determined C.S. ineligible as a student with a disability, on the basis of an evaluation that include no observation of the student’s classroom performance or teacher interview by a psychologist and which relied on testing which was ten months old at a time when the student was, himself, Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 3 of 32 4 only two years, ten months old. This evaluation was inappropriate and failed to make available to the team appropriate information necessary to determine if C.S. was eligible for special education and related services. On the basis of this inadequate information, the team rendered an inappropriate decision. This inappropriate decision was not remedied until Ms. Richardson sought independent evaluations, which demonstrated his eligibility after obtaining the information missing from the Defendant’s original evaluation. On March 31, 2016 the Plaintiffs filed an administrative due process complaint (“the Complaint”) which resulted in a hearing an administrative hearing of the claims made in this Complaint conducted by the District of Columbia Office of the State Superintendent of Education State Enforcement and Investigation Division. See Administrative Record (“AR”) at 4. The Complaint asserted two claims: that the Defendant failed to comprehensively evaluate C.S. in July 2015 and that the inappropriate evaluation led it to incorrectly determine him ineligible as a student with a disability. See AR at 166-176. In an order dated June 13, 2016, the Hearing Officer found against Ms. Richardson. On September 7, 2016, the Plaintiffs filed this action seeking a reversal of the hearing officer’s order. The Hearing Officer’s order inappropriately found that the evaluation data relied on by the Defendant was sufficient, despite evidence at hearing demonstrating that it was outdated and unreliable. The Hearing Officer further erred in permitting the Defendant to rely on the classroom observation and teacher interview conducted by a speech-language pathologist as a way of assessing his broader developmental issues, despite evidence that such reliance was misplaced. The evidence adduced at Hearing demonstrated that the Defendant’s evaluation of C.S. was insufficiently comprehensive and relied on outdated data; the Hearing Officer erred in upholding it and his decision should be set aside. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 4 of 32 5 FACTUAL BACKGROUND C.S. is a four year old student who currently attends National Children’s Center (“NCC”) where he is enrolled in their preschool program. See AR at 6. Prior to July 2015, he received services at NCC through an individual family services plan (“IFSP”) under Part C of the IDEA for developmental delays in communication, adaptive, and socio-emotional skills. See AR at 26- 37. These delays were discovered by administering C.S. the Battelle Development Inventory- Second Edition (“BDI-2”). In addition, he had low average scores in cognitive development, indicating developmental levels approximately six months below his age at the time. See Id. at 33. Following that evaluation he received speech and language and occupational therapy (“OT”) through an IFSP. See AR at 7. In the spring of 2015, C.S. was referred for evaluations by Early Stages, because he was turning three and aging out of Part C services. See AR at 463-464. At that time, both C.S.’s teachers and a therapist believed he would continue to require services. See AR at 464 (“his teachers at the time felt like he still needed services”) and (“[C.S.’s therapist] felt like not giving him his services was going to make him decrease because he still needed services.”). In evaluating C.S. for eligibility under Part B, the Defendant conducted a psychological evaluation of C.S. and a supplemental speech-language assessment. See AR at 55-63, 45-54. The psychological evaluation conducted an Autism Diagnostic Observation Schedule, Second Edition (ADOS-2) and the Pervasive Developmental Disorder Behavior Inventory (PDDBI), though this measure was completed only by Ms. Richardson and C.S.’s grandmother. See AR at 55-63. It conducted no new testing of C.S.’s cognitive abilities or academic achievement, relying instead on the BDI-2 completed in 2014 as part of testing through Strong Start for Part C eligibility, and it made no recommendation regarding whether C.S. was a student with a developmental delay, Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 5 of 32 6 stating merely that he did not meet the eligibility criteria as a student with autism. See AR at 56, 61. On July 29, 2015, the multi-disciplinary team (“MDT”) met and after reviewing the evaluations conducted by Early Stages, C.S. was determined ineligible as a student with a disability under Part B of the IDEA. See AR at 72-74. Despite determining him ineligible, the MDT noted that he had “behavioral challenges including verbal and physical aggression” and “difficulty remaining engaged in individual activities for an age appropriate amout of time.” AR at 73. The MDT also noted that he had risk factors that may impact his development, including exposure to domestic violence, a family history of mental health and learning challenges, and an inconsistent sleep pattern. See id. The team did not seek additional data, despite these noted concerns, and C.S.’s eligibility for services terminated on his third birthday. Following that meeting, Ms. Richardson requested that the Defendant fund independent educational evaluations (IEEs) of C.S., based on her disagreement with the evaluations it conducted. See AR at 106. In November 2015, the Defendant agreed to fund an independent comprehensive psychological and independent speech and language evaluations. See AR at 112. In February 2016, the independent comprehensive psychological evaluation (“IEE psychological”) was completed, recommending that the MDT consider classifying C.S. as a student with the disability of developmental delay and reconsider the classification of autism following further testing. See AR at 146. That evaluation gathered current information on C.S.’s developmental functioning by administering an updated BDI-2. See AR at 138. In the area of adaptive functioning, the ability to use information and skills acquired in other domains, the BDI-2 indicating that C.S. has a mild delay. Id. In the domain of personal-social, the ability of the student to engage in meaningful Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 6 of 32 7 social interaction with adults and peers, C.S. had a mild developmental delay, including scores below the first percentile in his ability to interact with peers. See AR at 139. He also had a mild developmental delay in the area of motor, the ability to use large and small muscles of his body, with weakness in fine motor skills. Id. In the communication domain, C.S. had a significant developmental delay with scores below 0.1 percentile. Id. The evaluation found that he “struggles to engage in conversation” and “often speaks gibberish or nonsensical words that make communicating with others difficult.” AR at 139. Finally, C.S. demonstrated significant developmental delay in the cognitive domain, with a score in the 0.4 percentile. See id. at 140. In addition, the IEE psychological indicated impairments in the areas of visual processing, integration and synthesis of part-whole relationships, attentiveness to visual detail, non-verbal concept formation, and visual motor integration. See AR at 137. In addition, working memory was found to be an area of weakness for C.S. Id. The IEE psychological further conducted a classroom observation and teacher interview of C.S. See AR at 134-135. During classroom observation, he was observed to have minimal interaction with peers and flap his hands and stare off while eating. See AR at 134. When an adult tried to engage with him, he turned away and avoided interaction. Id. In the classroom, he was observed to play alongside a peer, but avoided cooperative play. Id. During her interview, his teacher Ms. Roy reported concerns about his social and academic development. See AR at 135. She reported that he is rigid and remains on the periphery during instruction and social situations. Id. She further explained that he has minimal interactions with peers, rarely plays with other children, and selects the same toy to play with or song to sing during class. Id. She reported that he often uses nonsense words and when overwhelmed he resorts to screaming, which is a Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 7 of 32 8 disruption to the classroom. Id. Her overall assessment was that lacks age appropriate academic and social skills. Id. Finally, the IEE psychological administered testing to determine if C.S. likely had autism. That testing included the Gilliam Autism Rating Scale, Third Edition (GARS-3) which was administered to Ms. Richardson and to C.S.’s teacher Ms. Roy; from these, the evaluation generated a Total Autism Index, rating the likelihood that C.S. has autism and what level of support he requires. See AR at 142. Ms. Richardson’s responses generated a Total Autism Index of 118, indicating a very likely probability that C.S.’s behavior and symptom are associated with autism and that he likely requires very substantial support. Id. Ms. Roy’s responses generated a Total Autism Index of 87, also ranking his likelihood of autism as very likely, and indicating a substantial level of support. Id. Ultimately, the IEE psychological recommended finding C.S. eligible for special education under the classification of developmental delay and conducting additional testing and reconsidering autism as well. See AR at 144-145. On April 22, 2016, the MDT met and again reviewed C.S.’s eligibility as a student with a disability under the IDEA. See AR at 291-307. At that time, the team determined him eligible for special education under the disability classification of Developmental Delay. AR at 299. On March 31, 2016, following receipt of the IEE psychological, Ms. Richardson filed the underlying due process complaint (“the Complaint”) alleging violations of the IDEA when the Defendant failed to comprehensively evaluate and C.S. and from the resulting inappropriate eligibility decision. See AR at 169-182. The Complaint proceeded to Hearing on July 1, 2016. See AR at 3. At Hearing, Ms. Richardson presented the testimony of Dr. Keisha Mack, who was qualified without objection as an expert in conducting psychological evaluations for children Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 8 of 32 9 suspected of having an IDEA disability and making recommendations regarding eligibility and services. See AR at 403-404. Dr. Mack has a doctorate in clinical psychology from George Washington University, a master’s in counseling psychology, and a bachelors in psychology, both from Howard University. See AR at 361. Since 2006, Dr. Mack has been the Director of Clinical Services at the MECCA Group, where her responsibilities include providing testing and assessment services for children. See AR at 362. She also worked as a psychologist at the Village School, where she conducted psychoeducational and clinical evaluations. Id. Dr. Mack also conducted such evaluations as a contractor with Maria Cohn, Ph.D & Associates and in other roles throughout her career. See AR at 363, 364-366, 405. In this case, Dr. Mack was responsible for the IEE psychological and also testified concerning the defects in the evaluation conducted by the Defendant in 2014. In discussing the 2014 psychological evaluation conducted by the Defendant, Dr. Mack stated that there were “several pieces that were missing from the evaluation” and that “there wasn’t any cognitive testing, there weren’t any teacher interviews…there wasn’t any academic testing, social emotional testing.” AR at 407, 408. She further described elements including cognitive testing, social emotional testing, teacher interviews and classroom observation as “basic components of a comprehensive evaluation.” AR at 409. Finally, Dr. Mack explained that the prior BDI-2 which the Defendant’s evaluation “use[d] to justify their recommendations and their determinations” was almost a year old and “developmentally a lot happens in a year.” AR at 412-413. For this reason, she explained that she conducted a new BDI-2. See Id. at 413. She also said that typically a classroom observation would be included in the evaluations. See Id. at 408. Regarding the failure to include a classroom observation, she said that evaluators “definitely want to have an opportunity to see them in [the classroom] environment firsthand” Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 9 of 32 10 and that the observation was a “pretty important aspect of this evaluation process, particularly as it relates to education, academic concerns.” AR at 408 (emphasis added). She also explained that teacher rating scales are important, because they are specifically designed to address the concerns of each particular student and maybe be specifically designed to help determine eligibility. See Id. at 408-409. C.S.’s grandmother, Ms. Wanda Richardson testified to her involvement in the process of getting C.S. evaluated by the Defendant. See AR at 464-482. She testified that C.S. had an IFSP until he turned three, to address his social emotional issues and developmental delay. See AR at 464. She also testified that following the termination of services, teachers reported concerns with outbursts and disruptive behavior, banging his head, social skills, and screaming. See AR at 470. She also reported that these behaviors had been present prior to the termination of services as well. See AR at 471. In addition, Ms. Richardson presented the testimony of Dr. Sharon Lennon. See AR at 431-458. She testified that, based on her review of both psychological evaluations, C.S. would likely have been found eligible in 2015, had the Defendant conducted a complete and comprehensive evaluation. See AR at 437 (“if I look at the DCPS psychological…it showed me that there were a number of areas that were missing. And if this data –if this were a comprehensive evaluation, then probably C.S. would have been found eligible for services in 2015.”). To remedy this, she proposed a compensatory education plan calling for 120 hours of specialized tutoring, twenty (20) hours of behavior support services, and thirty-two (32) hours of occupational therapy to compensate him for services she testified he would have gotten had the Defendant conducted a fully comprehensive evaluation. See AR at 441-442. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 10 of 32 11 Witnesses for the Defendant were Ms. Sharron Williams, a school psychologist who was not qualified as an expert witness and who did not participate in the 2015 eligibility process, Ms. Carol Kramp, an occupational therapist, and Ms. Andrea Handscomb, a speech-language pathologist, who both participated in both eligibility determinations. See AR at 72, 301. The psychologist who conducted the 2015 evaluation and participated in the eligibility meeting in July 2015 did not testify. Ms. Williams testified that the BDI-2 scores from 2014 were valid for C.S.’s “age range” indicating that it was used for students up to six or seven. See AR at 544. She acknowledged, however, that there was “no current, no updated cognitive testing” at the time of the July 2015 evaluation. AR at 595. Despite this, she indicated that updated testing was no conducted, because it was “not part of the referral question.” Id. Ms. Kramp testified concerning her involvement in each of the eligibility decisions. See AR at 610-636. Concerning the use of the 2014 BDI-2 she testified that "“we were asked to use Strong Start testing.” AR at 631. Following the Hearing, the Hearing Officer issued his Hearing Officer Determination (“HOD”) on June 13, 2016. See AR at 3-22. That HOD found that the 2015 psychological was not insufficiently comprehensive, because it used the BDI-2 scores from 2014 and because the evaluator had access to an observation conducted by a speech-language pathologist. See AR at 15. The Hearing Officer also found that Ms. Richardson had not demonstrated that C.S. was likely eligible in 2015, despite the fact that he was determined eligible when updated testing was completed. Ms. Richardson filed this action on September 7, 2016 in order to demonstrate that the HOD erred in reaching this conclusion. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 11 of 32 12 STANDARDS A. Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when the pleadings and the evidence demonstrate that “. . . there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law and no genuine issue of material fact exists . . .” The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The party seeking summary judgment may successfully support its motion by informing the district court of the basis of its motion and identifying those portions of the record including the pleadings, depositions, answers to interrogatories, as well as admissions on file together with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c). There is no genuine issue of material fact where the relevant evidence in the record, taken as a whole, indicates that a reasonable fact finder could not return a verdict for the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Facts and inferences drawn from those facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, summary judgment may still be granted if evidence favoring the non-moving party is merely colorable, or is not significantly probative. Anderson, 477 U.S. at 249-50. “Summary judgment is appropriate if the non-movant fails to offer evidence on which the jury could find for the [non-movant].” See Holbrook v. Reno, 196 F.3d 255, 259-60(D.C. Cir. 1999); see also Anderson, supra, at 249-50. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 12 of 32 13 Once a proper summary judgment motion is filed which demonstrate the tests of sufficiency as herein immediately stated, the burden then shifts to the non-moving party to produce “specific facts showing that there is a genuine issue for trial.” FED.R.CIV. P. 56(e); Anderson, 477 U.S. at 250. The non-moving party, to establish that a genuine issue for trial exists, must do more than simply show there is some ephemeral doubt as to the material facts. Matsushita Elec. Indus. Co. 475 U.S. at 586. Because of the foregoing stated by the Plaintiffs in this matter, the Motion for Summary Judgment should be granted. B. Standards for Review of Administrative Decisions under the IDEA Under the IDEA, "[a]ny party aggrieved by the findings and decision" rendered during administrative proceedings may bring a civil action in state or federal court challenging that decision. 20 U.S.C. § 1415(i)(2), (i)(3)(A); 34 C.F.R. § 300.516(a). The reviewing court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C); 34 C.F.R. § 300.516(c). On review of an HOD, the burden of proof falls upon the party who challenged the HOD, 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 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)). The due weight standard does not mean, "that the district court must defer to [the hearing officer's] findings when its own review of the evidence indicates that the hearing officer erroneously assessed the facts or erroneously applied the law to the facts." Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 13 of 32 14 While this preponderance-of-the-evidence standard of review does not authorize unfettered de novo review, "the district court's authority to 'hear additional evidence at the request of a party,' and 'bas[e] its decision on the preponderance of the evidence' ... 'plainly suggest[s] less deference than is conventional' in administrative proceedings." Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). Further, these powers of fact-finding and remedy- crafting, the Supreme Court has explained, entail "broad discretion" and implicate "equitable considerations." See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (internal quotation marks omitted). Moreover, a hearing decision "without reasoned and specific findings deserves little deference." See Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d 84, 87 (D.C.Cir.1991) ("Kerkam II") (internal quotation marks omitted). Where no additional evidence is introduced in a civil suit seeking review of an HOD, a motion for summary judgment operates as a motion for judgment based on the evidence comprising the record. 20 U.S.C. § 1415(i)(2)(C);Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). ARGUMENT I. Evaluations under the IDEA The IDEA was designed to address the history of educational neglect of disabled students. See Schaffer ex rel. Schaffer v. Weast 546 U.S. 49, 52. That history includes the fact that, prior to the passage of the IDEA’s predecessor, the Education of the Handicapped Act “undiagnosed disabilities prevented the children from having a successful educational experience.” 20 U.S.C. §1400(c)(2)(C). As part of that program, the Defendant, as local educational agency (“LEA”), is responsible for providing a FAPE to its students with disabilities. See 20 U.S.C. § 1412(a)(1)(A). This includes the requirement to conduct full and individual initial evaluations to determine which disabilities are, as yet, undiagnosed. See 20 U.S.C. § 1414 Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 14 of 32 15 (a)(1)(A); 34 C.F.R. 301(a). An initial evaluation must be sufficiently comprehensive to determine “whether a child is a child with a disability” and the educational needs of the child.” 20 U.S.C. §1414(a)(1)C). This evaluation must occur in all areas of suspected disability, including “health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities” where appropriate. 34 C.F.R. 300.304 (c)(4). In addition, the LEA must: (1) 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—(i) Whether the child is a child with a disability under § 300.8; and(ii) The content of the child's IEP, including information related to enabling the child to be involved in and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities); (2) Not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability and for determining an appropriate educational program for the child; and (3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 34 C.F.R. 300.304(c). The requirement of a full, individualized, and comprehensive evaluation, in all areas of suspected disability, serves a vital purpose in achieving Congress’s goal of ensuring that all students with disabilities receive a FAPE. See Timothy O. v. Paso Robles, 822 F. 3d 1105, 1119, (9 th Cir. 2016) (“this requirement serves a critical purpose: it allows the child’s IEP team to have a complete picture of the child’s functional, developmental, and academic needs, which in turn allows the team to design an individualized and appropriate educational plan tailored to the needs of the individual child.”) Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 15 of 32 16 II. The Psychological Evaluation Conducted in April 2015 was insufficiently comprehensive a. The 2015 psychological evaluation lacked classroom observation or teacher interview components It is undisputed that the psychological evaluation conducted in 2015 lacked either a classroom observation or teacher interview. See AR at 57 (“[C.S.’s] teacher was not able to be reached to provide input as part of the current psychoeducational evaluation” and “[d]ue to scheduling conflicts within the evaluation timeline, classroom observation was not able to be completed.”) It also lacked rating scales. See AR at 408. At Hearing, Dr. Mack explained that such elements are basic components of a comprehensive evaluation. See AR at 409. The Hearing Officer excused this failure, however, because of a belief that the evaluator could rely on the classroom observation and teacher interview information provided by the speech language pathologist who evaluated C.S. See AR at 16. Examination of evidence offered a hearing, however, reveals that the Hearing Officer’s conclusion was incorrect. The Court should, therefore, find that the 2015 evaluation was insufficiently comprehensive. Dr. Mack, testifying as an expert in conducting psychological evaluations for children suspected of having an IDEA disability, explained that the failure to include a classroom observation or teacher interview was one of several pieces that the 2015 psychological was missing. See AR at 407, 408. She further described these elements as “basic components of a comprehensive evaluation.” AR at 409. With regard to the observation specifically, she testified that “you definitely want to have the opportunity see them in that environment to determine, you know, firsthand, also what may be happening in the environment” and that observation is “a pretty important aspect of this evaluation process.” AR at 408. She also testified that classroom observation and “interviews with relevant folks including teachers” were part of what makes a comprehensive psychological evaluation comprehensive. AR at 409. She further testified that Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 16 of 32 17 teacher rating scales, which the evaluation lacked, were an important part of the evaluation process. Id. at 408. Despite Dr. Mack’s expert opinion that the evaluation completed was not comprehensive, the Hearing Officer excused the Defendant’s failure to gather this information, stating that the psychologist relied on information gleaned from the observation of the speech-language pathologist who did observe C.S., Andrea Handscomb. See AR at 15. While the 2015 psychological does refer to Ms. Handscomb’s observation, it does not describe or consider it in any clear way. See AR at 57. No information from that observation is incorporated into the text of the evaluation. See AR at 55-63. As Ms. Handscomb is a speech-language pathologist, she did not conduct the type of rating scales Dr. Mack testified were an important part of the evaluation process, so this information was not available to the team. It is further logical to assume that a trained psychologist would observe a student looking for different things than a person whose training is in speech-language pathology; one expert cannot simply be substituted for another. Dr. Mack’s testimony emphasized the imporantance of the expert observing the student in the classroom, firsthand. See AR at 408. Indeed, review of the teacher interview conducted by Ms. Handscomb, which was not referenced in the 2015 psychological, reveals that it focuses entirely on C.S.’s speech-language abilities. See AR at 48. When a trained psychologist finally did interview C.S.’s teacher, she expressed concerns about his social and academic development and his ability to interact with other children. See AR at 135. This information was not available from the interview conducted by Ms. Handscomb. The psychologist who conducted the evaluation, Mr. Timothy Peerenboom, did not testify to explain how that information was considered, nor did any teacher of C.S. participate in the 2015 eligibility meeting to discuss his classroom performance. See AR at 72. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 17 of 32 18 Ultimately, Dr. Mack offered her expert opinion that the evaluation as a whole was insufficiently comprehensive, including review of the 2015 psychological with its statement to refer to Ms. Handscomb’s observation. By contrast, the Defendant presented no witnesses who testified as experts in conducting psychological evaluations who would be qualified to present opinion as the comprehensiveness of the evaluation. The psychologist who did testify, as a lay witness, for the Defendant, Ms. Sharron Williams was not a participant in the 2015 evaluation process, having become involved after reviewing C.S.’s IEE conducted in 2016. See AR at 525. Further, while she testified that she had reviewed Ms. Handscomb’s observation of C.S., she did not, and could not, testify that the 2015 evaluator had. AR at 545. The Hearing Officer’s finding that the failure of the 2015 psychological evaluation to include a classroom observation, teacher interview, or teacher rating scales did not render the evaluation insufficiently comprehensive because it relied on the observation of Ms. Handscomb is contrary to the evidence offered by the most qualified expert who testified, contrary to the logical understanding that a speech-language pathologist will observe a student with a different focus than psychologist, and unsupported by any testimony or evidence that can document how the information was considered. The HOD finding should be set aside. b. The 2015 psychological evaluation lacked current testing At Hearing Ms. Richardson also demonstrated that the 2015 psychological was insufficiently comprehensive, because it lacked current testing as to the student’s cognitive levels, academic achievement, and socio-emotional functioning. Despite this, the Hearing Officer found that the BDI-2 conducted by the Defendant in 2014 was sufficient to evaluate C.S. and did not credit Dr. Mack’s expert testimony that updated testing was required. The evidence offered at Hearing, however, demonstrates that the Hearing Officer’s basis for disregarding Dr. Mack’s Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 18 of 32 19 testimony was inappropriate and that the evidence demonstrated that, to adequately evaluate C.S., the Defendant should have conducted updated testing in these areas. Dr. Mack testified, unambiguously, that the 2015 evaluation was missing “cognitive testing…academic testing, social-emotional testing” that were part of a comprehensive evaluation. See AR at 408. She also testified that the use of a previously conducted BDI-2, as happened in this case, for C.S. was inappropriate because “the test was almost a year old and developmentally a lot happens in a year” AR at 412-413. She explained that for that reason, an updated BDI-2 was conducted as part of the IEE. This result is supported by consideration of the age of C.S. at the time of the evaluation in 2015. At that time, he was two years, ten months old. See AR at 55. Despite that, the Defendant’s evaluation relied on data that was ten months old, meaning that roughly 30% of C.S.’s life and development had occurred after the evaluation data the team relied on. That this data could not possibly be sufficient to reflect his developmental levels in July 2015 should be plainly evident to anyone who has a basic understanding of child development. Given the degree of progress normally made at these ages, Ms. Handscomb testified that she conducted an updated speech-language evaluation “to see if he had in fact made that growth.” AR at 269. As Dr. Mack testified, developmentally a great deal happens in the ten months between the 2014 evaluation and the 2015 psychological. Just as updated speech- language testing was obtained, updated testing for cognitive, academic, or social-emotional functioning should have been conducted to gather information concerning where C.S. was at the time of the eligibility determination, but it was not done. In addition, there were notable signs in the student’s history that the team agreed indicated he was at risk to make less than expected growth. The MDT noted that he had risk Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 19 of 32 20 factors that may impact his developmental growth, including exposure to domestic violence, a family history of mental health and learning challenges, and an inconsistent sleep pattern. See AR at 73. The MDT also noted that he had “behavioral challenges including verbal and physical aggression” and “difficulty remaining engaged in individual activities for an age appropriate about of time.” Id. Despite these warning signs, the team did not seek updated data. Ms. Williams, testifying for the Defendant, conceded that there was “no current, no updated cognitive testing.” AR at 224. While she testified that the previous BDI-2 was “valid” she was referring to the assessment being valid for C.S.’s age. See AR at 544 (“No the age range was fine, it was a valid assessment if that’s what you’re asking me”). She never contradicted Dr. Mack’s testimony concerning how much development happens during the time periods in question and acknowledged that at the time of the 2015 evaluation there was no current testing. See AR at 595. When asked to explain this, she stated only that it “was not part of the referral question.” Id. This answer does not explain why the team would not want updated testing in light of the lengthy time between the 2014 evaluation and the 2015 eligibility meeting and the amount of development that a student typically undergoes in that period of time. It further does not explain why the team would not want updated information in light of the specific challenges it identified as potential risk factors for delayed development. Further, Ms. Williams offered her opinion testimony as a lay witness to an area in which Dr. Mack was qualified as an expert. Her opinion is, therefore, far less persuasive. Courts considering the duty to comprehensively evaluate have emphasized that a district must assess a particular disability whenever it has notice that the student displays symptoms of the disability and thus it is suspected. See Timothy O v. Paso Robles Unified Sch. Dist., 822 F. 3d 1105, 1119-1120 (9 th Cir. 2016) (noting that testing is required even where the school district Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 20 of 32 21 disagrees with a parent’s suspicions), see also, N.B. v. Hellgate Elementary Sch. Dist, 541 F.3d 1202 (9 th Cir. 2008). Further, the process should be designed to provide “a complete picture of the child’s functional, developmental, and academic needs.” Timothy O. 822 F.3d at 1119. The emphasis on a full and complete evaluation in all areas of suspected disability, found both in the case law and in the statute, is not served by reliance data which was, at time of evaluation, significantly outdated. The Defendant was on clear notice that C.S. may have had a developmental delay by the fact that he had been found to have such a delay under Part C of the IDEA. Despite this, it declined to obtain current information to determine if his developmental delay had worsened, improved, or remained the same. This decision is inconsistent with the broad scope of assessment described by the statute. The Hearing Officer found that Dr. Mack’s opinion was not persuasive because she had not reviewed the Strong Start assessment data, but that finding is contrary to Dr. Mack’s actual testimony. See AR at 15. Dr. Mack testified that prior to conducting her evaluation, she reviewed the comprehensive evaluation, which included data from Strong Start. AR at 56, 406-407. She also, as described above, testified that the she was aware the team had relied on the BDI-2 conducted as part of the Strong Start evaluation. See AR at 412. (“In this particular case they stated and really discussed—I’m sorry; they did refer to those scores to justify their recommendations.”). What she testify that she had not reviewed was the actual Strong Start report itself, which was not provided by the Defendant and indeed was not disclosed at Hearing either; review of that document by Dr. Mack was impossible. See AR at 424 (“Q: Did you review the Strong Start Birth to 3 program evaluation report from October 27, 2014 A: No.)(emphasis added). The scores from the BDI-2, about which Dr. Mack testified, were reviewed. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 21 of 32 22 Further, Dr. Mack testified that she did not need to review the underlying data from Strong Start to determine if the Early Stages evaluation was comprehensive. When asked if she would have needed to review the Strong Start report to make a determination about the comprehensiveness of the Early Stages evaluation, she stated “I would not need to review that because they report their findings in this evaluation.” AR at 428. No expert testified to contradict Dr. Mack’s opinion about what she required to assess whether the evaluation was comprehensive. The Hearing Officer’s finding that Dr. Mack’s testimony is not persuasive on that basis is unsupported by the evidence and should be set aside. With regard to the failure to conduct socio-emotional testing, the Hearing Officer found that the Defendant assessed that area by administering the PDDBI and ADOS-2 in 2015. Those evaluations, however, are not full assessments of C.S.’s socio-emotional functioning, but are both narrowly focus on autism. The PDDBI is an assessment of autism related problem behaviors and communication skills, not general socio-emotional functioning. See AR at 59 (“The PDDBI is an age-standardized behavioral rating scale designed to assist in determining the severity of problem behaviors and social communication skills related to ASD in individual”) The ADOS-2, also, is a narrow assessment assessing “behaviors…related to autism spectrum disorder.” AR at 57. As discussed above, Dr. Mack reviewed this evaluation, including the ADOS-2 and PBDDI components, and testified that it was insufficiently comprehensive. Her opinion is the most reliable evidence presented, and the Court should reject this finding of the Hearing Officer. At Hearing, Ms. Richardson presented the testimony of Dr. Mack who testified clearly that, in her expert opinion, the evaluation done in 2015 was insufficiently comprehensive, in that it lacked a teacher interview or classroom observation and updated testing in cognitive, Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 22 of 32 23 academic, or social-emotional functioning. The Hearing Officer declined to credit that testimony for reasons that can be demonstrated to be contrary to the evidence presented: Dr. Mack did review the Strong Start scores and testified that she had a sufficient basis for determining the 2015 evaluation insufficiently comprehensive, and the evidence demonstrated that the observation of Ms. Handscomb was not a sufficient substitute for observation by a psychologist. The Court should reject the Hearing Officer’s findings and find that Ms. Richardson demonstrated that the evaluation of C.S. in 2015 was insufficiently comprehensive. III. The Failure to comprehensively evaluate C.S. was a denial of FAPE Failure to comprehensively evaluate a student is a procedural violation of the IDEA, which may serve as a denial of FAPE. See Timothy O v. Paso Robles Unified Sch. Dist., 822 F. 3d 1105 (9 th Cir. 2016). When a considering a procedural violation of the IDEA, a hearing officer may only find that a child did not receive a FAPE where the violation: (i) Impeded the child's right to a FAPE; (ii) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or (iii) Caused a deprivation of educational benefit. 34 C.F.R. § 300.513(a)(2). In drafting the IDEA, Congress paid special attention to procedures that would give parents participation in the process. See Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 205-6 (1982), see also, M.M. v. Lafayette Sch. Dist., No. 12-15769, No. 12-15770, slip op. at 15 (9th Cir. 2014) (stating that “A core principle throughout the IDEA is meaningful participation by parents and informed parental consent, making the parents an integral part of the team that determines both whether the child is a child with a disability and the content of the child's IEP” and that “[p]rocedural compliance is essential to ensuring that every eligible child Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 23 of 32 24 receives a FAPE, and those procedures which provide for meaningful parent participation are particularly important.” (internal citations omitted)). It is, therefore, of great importance that, when reviewing an alleged violation of the IDEA’s procedural requirements, a court or hearing officer determine whether the violation denied the parent the right to meaningfully participate in the IEP process. In this case, the failure to comprehensively evaluate C.S. deprived Ms. Richardson of her right to participate in decisionmaking regarding the provision of FAPE to C.S. and resulted in an inappropriate eligibility decision. The Court should find that the procedural violation of conducting insufficiently comprehensive evaluations of C.S. denied him a FAPE. a. The 2015 evaluation deprived Ms. Richardson of her right to participate in the decisionmaking process In Timothy O v. Paso Robles Unified Sch. Dist. the Ninth Circuit analyzed when a procedural violation of the IDEA consisting of insufficiently comprehensive evaluations constituted a denial of FAPE. See 822 F. 3d 1105 (9 th Cir. 2016). Applying the considerations outlined in Timothy O. to the instant case reveals that the Defendant’s failure deprived the MDT of information that was crucial to making an appropriate determination, hindering Ms. Richardson’s participation in the process and making rendering an appropriate decision impossible. In Timothy O., after finding that a student who was later determined to be autistic had not been properly evaluated for suspected autism at the time of his initial evaluation, the court determined that this failure was a denial of FAPE. See Timothy O. 822 F. 3d 1105 (9 th Cir. 2016). The court found that the failure “deprived his IEP team of critical evaluative information about his developmental abilities” and that it “made it impossible for the IEP team to consider and recommend appropriate services.” Id. at 1119. While discussing the failure to evaluate in the Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 24 of 32 25 context of autism specifically, the court emphasized that “the provision of a free appropriate public education is ‘impossible’” when the team fails to obtain necessary information. Id. at 1124 It further found that “this lack of information denied [the student] educational opportunities and substantially hindered his parents’ ability to participate in the IEP process.” Id. at 1124-1125. Applying that model to the instant case leads to a similar result. Here, the Defendant failed to obtain information that testimony indicated was required to make an appropriate decision. Dr. Mack testified that the 2015 psychological was missing “basic components of a comprehensive evaluation,” including up to date testing of the student’s developmental levels and a teacher interview and classroom observation AR at 409. Like in Timothy O., the Defendant’s failure deprived the team of information that was necessary to render an appropriate eligibility decision. This failure made an appropriate decision impossible and prevented Ms. Richardson from meaningfully participating in the decisionmaking process, in that she lacked information regarding her son’s actual classroom performance as observed by a psychologist as well as up to date cognitive, academic, and socio-emotional testing, information which was necessary for her to participate in the eligibility process. Without the results of a classroom observation conducted by a psychologist, Ms. Richardson lacked the information necessary to determine the impact of any disability on C.S. in the actual classroom setting. Without up to date testing, the team lacked the information necessary to determine if C.S. was making developmental progress appropriate for his age level. Without this information, Ms. Richardson could not meaningfully participate in a discussion of whether C.S. had a developmental delay. As discussed above, the data she was provided was very outdated and did not reasonably reflect C.S.’s abilities at the time of the meeting. The lack Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 25 of 32 26 of information prevented her from participating appropriately in the eligibility meeting held in 2015 and is a denial of C.S.’s right to a FAPE; the Hearing Officer’s decision should be reversed. b. The 2015 evaluation process resulted in an inappropriate eligibility decision In addition to denying Ms. Richardson her right to participate in the decisionmaking process, the failure of the Defendant to comprehensively evaluate C.S. in July of 2015 resulted in an inappropriate eligibility determination because the team lacked information that would have likely demonstrated he was eligible; this decision was not remedied until April of 2016. During the time between these eligibility determinations, C.S. did not receive any services under the IDEA. This was a denial of FAPE, forming the second of the two issues plead by Ms. Richardson, and the Court should award C.S. the requested relief. Ms. Richardson is not be required to show definitively that the outcome of the 2014 eligibility meeting would have been different absent the Defendant’s error, only that there is a strong likelihood an alternative program would be considered. See Timothy O. 822 F. 3d at 1124 (“A loss of educational opportunity occurs, for example, when there is a ‘strong likelihood’ that but for a procedural error an alternative placement would have been considered”)(citations omitted). In the instant case, the team that convened in July 2015 lacked current information concerning C.S.’s academic, cognitive, or social-emotional development. When that information finally was gathered as part of the IEE psychological, it demonstrated that he was eligible. Instead of conducting new testing, the Defendant relied on testing that was ten months old in the form of the Strong Start BDI-2. Dr. Mack testified that this was inappropriate, due to the amount of development that children that age experience during that time. See AR at 412-413. Further, Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 26 of 32 27 when updated developmental information concerning C.S. finally was gathered, it demonstrated that he likely had made trivial or no progress during that ten month period. A comparison of the scores received on the two BDI-2s conducted demonstrates that C.S. was not making progress during the period in question, and that he likely was developmentally delayed in July of 2015. During the 2014 BDI-2, C.S. was 25 months old (two years, one month). See AR at 33. At the time of the IEE psychological, he was three years, five months old See AR at 116. In the cognitive domain, C.S. received an age equivalency in 2014 of one year, eight months. See AR at 33. At the time of the IEE psychological, despite being over a year older, he received age equivalencies of one year, three months on one subdomain and one year, eleven months on the other two. See AR at 140. This reflects minimal progress over the course of the one year, four months between evaluations. In the communications domain, C.S. received an age equivalency of one year, three months in 2014. See AR at 33. At the time of the IEE psychological he received an age equivalency of ten months in the receptive domain and one year, two months in the expressive domain. See AR at 139. During the time between evaluations, he actually declined in his ability to communicate. In the social domain, he received an age equivalency of one year, five months in 2014. Id. He received scores of one year, four months and one year, eleven months on two of the three subdomains of the social domain on the IEE psychological. See AR at 139. This reflects minimal progress over that time span. In the domain of fine motor, C.S. received an age equivalency of one year, nine months in 2014. See AR at 33. By the time of the IEE psychological, his skills had declined and he Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 27 of 32 28 received an age equivalency of less than one year. See AR at 140. Again, in this area, C.S.’s abilities declined despite being over a year older. Had the Defendant tested C.S. again in July 2015 to see if he had made the substantial progress expected during that ten month period, it would have very likely caught C.S.’s lack of progress and, indeed, declining skills in some areas. Lacking that data, the team was unable to make a correct eligibility determination. The Defendant’s 2015 psychological evaluation also lacked an interview with C.S.’s teacher or a classroom observation. When those were completed, as part of the IEE psychological, the results demonstrated that C.S. was struggling in the area of socializing with peers and adults, including avoiding contact with adults, sitting alone during breakfast, and playing alone during class. See AR at 134. His teacher Ms. Roy also reported concerns about his social and academic development. See AR at 135. Further, his teacher reported many issues with peer relations including a lack of cooperative play, and that he becomes overwhelmed and screams during class. Id. Had this interview been conducted in July of 2015, it most likely would have alerted the Defendant to the need for updated developmental testing. See AR at 135. In considering C.S.’s eligibility at the time of the July 2015 meeting, the Hearing Officer continues to rely on testing from ten months prior to that meeting, which Dr. Mack testified should have been updated. See AR at 18. The Defendant’s witness was unable to make a persuasive case that that evaluation remained reliable in July 2015, acknowledging that the data was not current and stating only that updated testing was not part of the referral question. See AR at 595. As discussed above, when updated data was collected, it demonstrated that C.S.’s development had been stagnant or even declining in multiple developmental areas since the BDI- 2 from 2014. Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 28 of 32 29 In relying on the Strong Start BDI-2 from 2014, the Hearing Officer erred. Dr. Mack’s testimony demonstrated that that assessment was an unreliable measure of C.S.’s development in July 2015. When updated testing finally was conducted, it demonstrated, as the team agreed, that C.S. was eligible as a student with a developmental delay. Further, when a classroom observation and teacher interview were conducted, the result indicated that C.S. was not developing appropriately in his peer relations and that his teacher was concerned about his academic development. While definitive information showing C.S.’s eligibility in 2015 is not available, such information is not required. See Timothy O. 822 F. 3d at 1124. Furthermore, the fact that information concerning C.S.’s cognitive, academic, and socio-emotional functioning in July 2015 is not available is directly the fault of the Defendant who declined to obtain such information. When Ms. Richardson undertook steps to make such information available, it supported eligibility. It would be inequitable to allow the Defendant to deny C.S. services on the basis of an evaluation of outdated evaluation, and then demand that Ms. Richardson produce definitive information concerning C.S.’s abilities at the very time that the Defendant refused to complete updated testing. C.S.’s scores indicate strongly that he very likely made little progress or even regressed between the 2014 Strong Start evaluation and the 2015 eligibility determination. Here the team that met in July 2015 lacked up to date information on C.S.’s cognitive, academic, and socio-emotional functioning and it lacked the results of a teacher interview and classroom observation conducted by a psychologist. Had these elements been conducted as part of the July 2015 evaluation process, that information would have been before the team. When that information was before the team, C.S. was found eligible, indicating a strong likelihood that Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 29 of 32 30 the team would have at least considered the issue differently had it had access to comprehensive evaluations in 2015. On this basis, the Court should find that the failure to comprehensively evaluate C.S. likely denied him eligibility. IV. The requested compensatory education is appropriate relief As relief for the fact that C.S. was inappropriately found ineligible in July 2015, Ms. Richardson requested compensatory education to remedy the denials of FAPE demonstrated in this case. Under the theory of “compensatory education” courts and hearing officers may award “educational services . . .to be provided prospectively to compensate for a past deficient program.” Reid v. District of Columbia, 401 F. 3d 516 (D.D.C. 2005); quoting G. ex rel. RG v. Fort Bragg Dependent Schls., 343 F.3d 295, 308 (4 th Cir. 2003). See also Miener v. State of Missouri, 800 F2d 749, 753 (8 th Cir. 1986); and Burr v. Ambach, 863 F. 2d 1071 (2 nd Cir. 1989). In the instant case, Ms. Richardson has demonstrated that C.S. was denied a FAPE when the Defendant failed to conduct a full assessment of him in July 2015 and inappropriately found him ineligible for special education without sufficient information. She further presented a detailed and thoughtful compensatory education proposal. See AR at 339-344. The proposal identifies the harm to C.S., finding that “had a thorough and comprehensive initial evaluation been completed, the data required to determine the student eligible for services would have been available.” AR at 341. It also identified the missed services resulting from this failure, namely 160 hours of specialized instruction, thirty-two (32) hours of behavior support services, and sixty-four (64) hours of occupational therapy services. See AR at 342-343. Relying on the standard in Reid, Dr. Lennon proposed 120 hours of specialized tutoring, twenty (20) hours of behavior support services, and thirty-two (32) hours of occupational therapy to compensate him for services she testified he would have gotten had the Defendant conducted a fully comprehensive evaluation. See AR at 343-344. This proposal appropriate uses the Reid standard, Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 30 of 32 31 identifies the harm to C.S., and specifies what program would put him in the place he would have been, had the Defendant fully evaluated him in 2015. It should be granted to address the harmed caused to C.S. by the Defendant’s denial of FAPE. CONCLUSION The evidence presented demonstrated that the evaluation process undertaken by the Defendant as the basis for the July 2015 eligibility determination was seriously flawed. It lacked updated testing of C.S.’s development and it lacked a classroom observation or teacher interview by a psychologist. Expert testimony indicated that these elements were necessary for a comprehensive assessment of C.S., and evidence of the results of the IEE psychological indicated that, had the assessments been conducted, he would likely have been found eligible. Therefore, for the above reasons the Plaintiffs respectfully request that this Honorable Court enter an Order granting the Plaintiffs’ Motion for Summary Judgment, reversing the findings of the HOD and granting the requested relief. Respectfully submitted, ______________/s/_________________ ROBERT W. JONES, Bar No. DC997776 Associate Attorney James E. Brown & Associates, PLLC 1220 L Street, 7 th Floor Washington, D.C. 20005 (202) 742-2000 (voice) (202) 742-2098 (fax) Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 31 of 32 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ : JASMIN RICHARDSON et al., : Plaintiffs : : : : v. : : Civil Action No. 16-cv-1786 (APM) : : DISTRICT OF COLUMBIA : Defendant : : : : PROPOSED ORDER Upon consideration the Plaintiffs’ Motion for Summary Judgment and any opposition and reply thereto, it is this __________ day of _____________, 2017, hereby ORDERED that the Plaintiffs’ Motion is GRANTED, and further ORDERED that the Plaintiffs’ requested relief is GRANTED _________________ Judge United States District Court for The District of Columbia Case 1:16-cv-01786-APM Document 10 Filed 02/28/17 Page 32 of 32