M.O. v. District of Columbia , 20 F. Supp. 3d 31 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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M.O., et al., )
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Plaintiffs, )
)
v. ) Civil Action No. 11-1695 (RBW)
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DISTRICT OF COLUMBIA )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
The plaintiffs in this civil case, M.O., through her parents, Elizabeth Seymour and Robert
Ourlian, allege that the defendant, the District of Columbia (“District”), failed to provide M.O.
with the free appropriate public education (“FAPE”) to which she is entitled under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 (2006). Complaint
(“Compl.”) ¶¶ 74-80. The parties filed cross motions for summary judgment, and United States
Magistrate Judge John Facciola issued a Report and Recommendation recommending that both
motions be denied and that the matter be remanded to the hearing officer. Report and
Recommendation (“R&R”) at 26. Currently before the Court are the parties’ objections to
Magistrate Judge Facciola’s Report and Recommendation. After careful consideration of the
parties’ arguments and the administrative record, 1 the Court concludes for the reasons that follow
1
In addition to the submissions already identified, as well as Magistrate Judge Facciola’s Report and
Recommendation (“R&R”) and the Administrative Record (“AR”), the Court considered the following submissions
by the parties in rendering its decision: (1) the Plaintiffs’ Motion for Summary Judgment (“Pls.’ Mot.”); (2) the
Defendant’s Cross Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment
(“Def.’s Mot.”); (3) the Plaintiffs’ Opposition to Defendant’s Cross Motion for Summary Judgment and Reply to
Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment (“Pls.’ Cross Opp’n”); (4) the Defendant’s
Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment (“Def.’s Cross Reply”); (5) the
Plaintiffs’ Objections to the Report and Recommendations (“Pls.’ Obj.”); (6) the Defendant’s Opposition to
Plaintiffs’ Objections to the Magistrate’s Report and Recommendation (“Def.’s Opp’n”); (7) the Defendant’s
(continued . . .)
1
that it must accept the Report and Recommendation, deny both motions for summary judgment
without prejudice, vacate the hearing officer’s determination, and remand the matter to the
hearing officer for further evaluation of the evidence.
I. BACKGROUND
The full factual background of this action has already been laid out in great detail in
Magistrate Judge Facciola’s Report and Recommendation, see R&R ¶¶ 1-134, and the parties
have not objected to the findings of fact contained therein, see generally, Pls.’ Obj.; Def.’s
Opp’n; Def.’s Obj.; Pls.’ Opp’n; Def.’s Reply, and thus this Court will not repeat all of those
facts again here. The following facts are relevant to the parties’ objections.
M.O. began receiving speech therapy when she was two and a half years old, and
continued that therapy as well as occupational therapy while attending preschool at the Franklin
Montessori School. R&R ¶¶ 5-8. At the recommendation of M.O.’s speech therapist, she
subsequently attended the Maddux School because of its small class sizes, id. ¶¶ 9-10, which
consisted of twelve children and at least three staff teachers, id. ¶ 11.
Over several months in late 2009 and early 2010, several professionals conducted
evaluations of M.O.:
• Dr. Paula Elitov conducted a psycho-educational evaluation of M.O. on
October 29, 2009, November 9, 2009, and November 16, 2009, in which she diagnosed
M.O. with a learning disability, not otherwise specified (NOS), and attention deficit
(. . . continued)
Objections to the Magistrate’s Report and Recommendation (“Def.’s Obj.”); (8) the Plaintiffs’ Opposition to
Defendant’s Objections to the Report and Recommendations (“Pls.’ Opp’n”); (9) the Defendant’s Reply to
Plaintiffs’ Opposition to Defendant’s Objections to the Magistrate’s Report and Recommendation (“Def.’s Reply”);
and (10) the plaintiffs’ Notice of Supplemental Authority.
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disorder, primarily the inattentive type. Id. ¶ 15. Among other educational supports, Dr.
Elitov recommended a “small group setting” for M.O. Id. ¶ 15.
• Dr. Larry Silver conducted a psychiatric evaluation of M.O. on February
8, 2010, id. ¶ 16, and recommended that “[b]ased on the recommendations of the full
faculty at the Maddox [sic] School, [M.O.] should continue next year in an intensive
special education program that can address her learning, language, and motor
disabilities.” Id. ¶ 17.
• Beth Ciangiulli-Levy, a Speech-Language Pathologist, issued a speech and
language re-assessment summary for M.O. on March 2, 2010, which recommended that
M.O. continue with weekly speech and language therapy. Id. ¶ 18.
• Allison Misttrett of Leaps and Bounds Pediatric Occupational Therapy
evaluated M.O. on March 29, 2010, and April 1, 2010, and recommended that M.O.
receive “‘individual occupational therapy services 1-2 times per week for 1 hour’” and
that the therapist should be “‘trained and certified in sensory integration therapy.’” Id. ¶
19 (citation omitted).
The Lab School, a private, special education school, Compl. ¶ 20, also conducted an
Intermediate Speech and Language Assessment of M.O. on June 10 and 11, 2010, and proposed
an Individualized Education Program (“IEP”) for the 2010-2011 school year. R&R ¶ 21. The
assessment was conducted by Kathryn Riverso, a Speech-Language Pathologist. Id. ¶¶ 21-22.
She concluded that M.O. would do best in a classroom with “‘a small teacher-student ratio,
specialized teachers and instruction methods (e.g., hands-on, kinesthetic learning), and speech-
language therapy and other related services in a pull-out format and integration of these services
within the classroom.’” Id. ¶ 22 (citation omitted).
3
The plaintiffs completed the District’s Private-Religious Student Referral for Special
Education Services form on June 16, 2010, id. ¶ 23, and subsequently notified Dr. Shellie Wood,
the Special Education Coordinator at Janney Elementary School (“Janney Elementary”), the
public elementary school in their area, that they wanted to convene a multidisciplinary team to
address M.O.’s educational disability and her need for special education, id. ¶ 24. On July 15,
2010, before a multidisciplinary team was convened, the plaintiffs informed Dr. Wood that M.O.
would not be attending Janney Elementary for the 2010-2011 school year, but would instead
attend the Lab School. Id. ¶ 26. At Dr. Wood’s request, the plaintiffs permitted members of the
multidisciplinary team to observe M.O. at the Lab School, and also permitted District officials to
obtain information about M.O. from the Maddux School. Id. ¶¶ 27-29.
Dr. Wood received M.O.’s 2009-2010 School Progress Report from the Maddux School
after it was sent to her on September 13, 2010, in which the head teacher at Maddux stated that
M.O. “‘works best in small groups and benefits from sitting next to a teacher who can help her
maintain her focus and reassure her about interfering concerns.’” Id. ¶ 30 (citation omitted). A
multidisciplinary team meeting was held on September 21, 2010, and on October 5, 2010, the
Lab School issued its IEP for M.O. Id. ¶¶ 31-32. Dr. Wood received M.O.’s academic scores
and the Lab School IEP, which were sent to her on October 15, 2010. Id. ¶ 34.
Deborah Lahre-Joyner, a District Psychologist, observed M.O. at the Lab School,
reviewed multiple reports, including those prepared by Doctors Elitov and Silver, and thereafter
issued a Review of Independent Educational Evaluation report on October 25, 2010, in which
she recommended that M.O. “‘continue to receive specialized instruction in all academic areas
due to weaknesses in multiple areas of functioning.’” Id. ¶ 35 (citation omitted).
4
Dr. Wood issued a Prior Written Notice form on November 1, 2010, stating that M.O.
met the criteria to be identified as a student with a disability under the IDEA and that she
required special education and similar services. Id. ¶ 38. On November 17, 2010, the same day
as M.O.’s next multidisciplinary team meeting, Dr. Wood issued a Prior Written Notice which
stated:
[The District] offers & proposes placement in [M.O.’s] neighborhood school;
Janney Elementary in accordance with the Least Restrictive Environment
[(“LRE”)] of IDEA. [The District] rejects the parent[s’] request for [a] full time
special education separate school setting as that would deny LRE. Janney can
provide all requirements in [the] IEP by providing placement in a generalized
class with inclusion support and instruction in a separate class for remediation in
reading[,] writing and math. A dedicated aide will provide small group
instruction as needed.
Id. ¶ 40. The District also issued an IEP for M.O. on November 17, 2010, which provided for a
set number of hours per week of specialized training in various subjects in both a “General
Education” and an “Outside General Education” setting, as well as “the support of a full-time
dedicated aide” for M.O. AR at 6; R&R ¶ 42. Despite the issuance of the District’s IEP, M.O.’s
mother did not remove her from the Lab School due to concerns that M.O. would be unable to
handle the pace of the classroom, the noise, and the large class size at Janney Elementary. Id. ¶
46.
In March 2011, the plaintiffs hired Amy Mounce, an Educational Consultant, to conduct
a comparison between the District’s proposed program and M.O.’s then current educational
program at the Lab School. Id. ¶ 47. Mounce concluded that M.O. benefitted from a special
education program with a low student-teacher ratio, that the Lab School provided such an
environment and the proper educational supports, that M.O. could become overly reliant on the
use of a dedicated aide, and that the District’s proposed program did not provide sufficient
behavior supports for M.O. Id. The plaintiffs subsequently filed an administrative Due Process
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Complaint Notice, which presented three questions concerning the District’s November 17, 2010
IEP, id. ¶ 48; AR at 260, specifically:
1. Did [the District] deny [M.O.] a FAPE by failing to develop an appropriate
IEP for the 2010/2011 school year?
2. Did [the District] deny [M.O.] a FAPE by failing to propose a proper placement?
3. Is The Lab School of Washington a proper placement for [M.O.]?
AR at 265. The hearing officer, Bruce Ryan, issued a Pre-Hearing Order in June 2011, which
confirmed that the parties had agreed during a pre-hearing conference that the case presented the
same three issues enumerated in the plaintiffs’ administrative Due Process Complaint Notice.
R&R ¶ 55; AR at 294-96.
During the course of the administrative due process hearing, two expert witnesses
testified that M.O. required a full-time special education program, that the use of a full-time
dedicated aide would be inappropriate and unnecessary, and that the Lab School was able to
provide M.O. with the required educational supports, while Janney Elementary was unable to do
so. R&R ¶¶ 59-73 (discussing the testimony of Dr. Jennifer Durham, who holds a Ph.D. in
education focusing on special education, and educational consultant Amy Mounce). Five other
expert witnesses testified that they believed the District’s November 17, 2010 IEP was
appropriate, and each specifically stated that she approved of the component of the IEP that
called for a full-time dedicated aide for M.O. Id. ¶¶ 77-129 (discussing testimony of Janney
Elementary social worker Maureen Leventhal; Janney Elementary speech language pathologist
Toni Wills; Janney Elementary principal Norah Lycknell; Joyner; and Dr. Wood). In their
written closing argument, the plaintiffs asserted that the District officials had failed to review all
of the information concerning M.O. that M.O.’s parents had submitted to them. AR at 10.
The hearing officer issued his determination on July 7, 2011, which stated:
6
The November 17, 2010 IEP provides extensive special education and related
services in a combination setting that appears to reflect reasonable judgments by
the educational professionals and other members of the Student’s IEP team as to
how to serve her unique educational needs in the least restrictive environment,
based on the information available to the team as of that date. [The District] has
also offered an educational placement that can implement the IEP and is
otherwise appropriate to meet the Student’s demonstrated needs. As such, this
program and placement are reasonably calculated to provide meaningful
educational benefit. No more is required of [the District] under the IDEA.
Id. at 9-10. The hearing officer further determined that the plaintiffs had waived the issue of
whether the District had failed to review information about M.O. submitted by her parents
because they did not raise that issue in their administrative due process complaint. Id. at 10.
On September 20, 2011, the plaintiffs filed a complaint in this Court seeking declaratory
and injunctive relief and alleging that the District “failed to provide M.O. with the [FAPE] to
which she is entitled under the [IDEA].” Compl. ¶ 1. The plaintiffs also contended that “[t]he
Hearing Officer who decided this action compounded the IDEA violation when he failed to
render a fair or complete decision” and that
the Hearing Officer literally ignored significant evidence in the record, failed to
reference in any way the faulty schedule given by [the District] to the parents,
failed to rule on the school system’s blatant disregard of M.O.’s documentation of
the extent of her disability, and summarily dismissed the deleterious effects of a
one-to-one aide on M.O.’s independence and continued development.
Id. They alleged further that
[t]he Hearing Officer erred in issuing a Decision that concluded that the [IEP]
offered by [the District] in November of 2010 for the 2010-2011 school year
constituted a FAPE that could be implemented at the proposed school placement.
The Hearing Officer similarly erred in determining that the parents were not
entitled to receive tuition reimbursement for the 2010-2011 school year.”
Id. ¶ 2.
The parties filed cross motions for summary judgment, which were referred to Magistrate
Judge Facciola for a Report and Recommendation. Magistrate Judge Facciola agreed with the
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hearing officer’s determination that because the plaintiffs did not raise the issue of whether the
District failed to review information on M.O. submitted by her parents in their administrative due
process complaint, they could not raise that issue at the administrative due process hearing.
R&R at 24. Magistrate Judge Facciola also found that the hearing officer erred by failing “to
grapple with all of the evidence before him” and by failing “to explain why he accepted [the
District’s] position that M.O. could secure some educational benefit from placement in a general
education setting” and subsequently rejected the evidence to the contrary. Id. at 25. He thus
recommended that both motions for summary judgment be denied and that the matter be
remanded to the hearing officer “for further evaluation of the evidence before him, particularly
that evidence that contradicted his conclusion that M.O. could benefit from the general education
setting proposed by [the District].” Id. at 26.
The parties subsequently filed objections and oppositions to the Magistrate Judge’s
Report and Recommendation, which are the subject of this memorandum opinion.
II. STANDARDS OF REVIEW
A. Objections to Report and Recommendation
Federal Rule of Civil Procedure 72(b) governs the Court’s resolution of objections to a
magistrate judge’s report and recommendation on dispositive motions. The Rule provides that
“[t]he district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). In their objections, the parties may not present new
issues or arguments to the district judge; rather, “only those issues that the parties have raised in
their objections to the Magistrate Judge’s report will be reviewed by this court. . . . Furthermore,
8
objecting to only certain portions of the Magistrate Judge’s report ‘does not preserve all the
objections one may have.’” Aikens v. Shalala, 956 F. Supp. 14, 19-20 (D.D.C. 1997) (citations
omitted). And “when a party makes conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”
Alaimo v. Bd. of Educ. of the Tri-Valley Cent. Sch. Dist., 650 F. Supp. 2d 289, 291 (S.D.N.Y.
2009).
B. Rule 56 Motion for Summary Judgment
Summary judgment is proper where the pleadings, discovery, and affidavits 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.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of
“informing the district court of the basis for its motion, and identifying those portions of [the
pleadings or other parts of the record] . . . which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In assessing a
motion for summary judgment, “the Court must draw ‘all justifiable inferences’ in the non-
moving party’s favor and accept the non-moving party’s evidence as true.” Banks ex rel. D.B. v.
District of Columbia, 720 F. Supp. 2d 83, 87 (D.D.C. 2010) (Walton, J.) (quoting Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986)). Nevertheless, the non-moving party cannot rely on
“mere allegations or denials,” but “must set forth specific facts showing that there is a genuine
issue for trial.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477
U.S. at 248) (internal quotation marks omitted). Furthermore, “in ruling on cross-motions for
summary judgment, the court shall grant summary judgment only if one of the moving parties is
entitled to judgment as a matter of law upon material facts that are not genuinely disputed.”
Shays v. FEC, 424 F. Supp. 2d 100, 109 (D.D.C. 2006) (citation omitted).
9
In reviewing a hearing officer’s decision in an IDEA case, the 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
[it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The Court’s increased authority to
hear additional evidence and apply the preponderance of the evidence standard “plainly suggests
[that] less deference [is to be accorded to the hearing officer’s determination] than is
conventional in administrative proceedings.” 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))
(internal quotation marks omitted). However, the “party challenging the administrative
determination must at least take on the burden of persuading the court that the hearing officer
was wrong.” Id. (quoting Kerkam, 862 F.2d at 887) (internal quotation marks omitted). If “no
additional evidence is introduced [by the parties] in a civil suit seeking review of [an
administrative decision], a motion for summary judgment operates as a motion for judgment
based on the evidence comprising the record.” Thomas v. District of Columbia, 407 F. Supp. 2d
102, 109 (D.D.C. 2005) (citing 20 U.S.C. § 1415 (i)(2)(B); District of Columbia v. Ramirez, 377
F. Supp. 2d 63, 67 (D.D.C. 2005)).
III. LEGAL ANALYSIS
A. Waiver of Issue in Due Process Complaint
The plaintiffs object to the Magistrate Judge’s conclusion that because they did not in
their administrative Due Process Complaint Notice raise the issue of whether the District failed
to examine all of the information that the plaintiffs had provided to the IEP team, the plaintiffs
could not raise that issue at the due process administrative hearing. Pls.’ Obj. at 1-3.
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The IDEA’s implementing regulations make clear that schools must consider information
provided by a child’s parents when conducting evaluations. See 34 C.F.R. § 300.304(b)(1) (“In
conducting the evaluation, the public agency must [u]se a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information about the
child, including information provided by the parent.”). But the IDEA provides also that “[t]he
party requesting the due process hearing shall not be allowed to raise issues at the due process
hearing that were not raised in the notice . . . unless the other party agrees otherwise.” 20 U.S.C.
§ 1415(f)(3)(B); see also 34 C.F.R. § 300.511(d) (“The party requesting the due process hearing
may not raise issues at the due process hearing that were not raised in the due process complaint .
. . unless the other party agrees otherwise.”).
Here, the plaintiffs filed their administrative Due Process Complaint Notice in April
2011, challenging the District’s November 17, 2010 IEP. And as noted above, the administrative
Due Process Complaint Notice and the hearing officer’s Pre-Hearing Order identified the same
three issues concerning the IEP and its development. See AR at 260-66; 294-96. Neither the
administrative Due Process Complaint Notice nor the Pre-Hearing Order mentioned the issue of
whether the District failed to consider the totality of the information and evaluations provided to
the IEP team by M.O.’s parents. Accordingly, the Court finds that the plaintiffs waived their
ability to raise the issue now. 2 See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. § 300.511(d); see also
District of Columbia v. Pearson, 923 F. Supp. 2d 82, 87-88 (D.D.C. 2013) (finding that where an
issue “was not raised in the due process complaint . . . was not identified as an issue during the
2
In any event, the administrative record suggests that “[t]he [District] members” of M.O.’s multi-disciplinary team
“reviewed the evaluations submitted by the parent and agree[d] with the conclusions and recommendations therein”
before they “proceed[ed] with developing [the] IEP.” AR at 94. But even if the District officials did not review all
of the information provided by the parents, the hearing officer had the same information available to him during the
hearing. Accordingly, and as discussed in further detail below, the hearing officer should have taken it into account
when reviewing the plaintiffs’ case.
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pre-hearing conference . . . nor was it mentioned in the pre-hearing order,” the issue could not be
raised sua sponte by the hearing officer following the due process hearing in the hearing officer’s
determination).
The plaintiffs contend that “the issues that were before the [h]earing [o]fficer, including
whether [the District] denied M.O. a FAPE by proposing an inappropriate IEP and placement,
are directly related to the failure of the [IEP] team to consider the parents’ documentation,” and
thus the “issues are intertwined.” Pls.’ Mot. at 13, n.5 (citation omitted). In advancing their
position, the plaintiffs rely on Gellert v. District of Columbia Public Schools, a case in which
another member of this Court found that a hearing officer erred in concluding that the issue of
the appropriateness of the IEP had been waived. 435 F. Supp. 2d 18, 23-24 (D.D.C. 2006). The
District 3 in Gellert “argue[d] that the [h]earing [o]fficer was only asked to consider whether
Wilson could implement the . . . IEP, not whether the underlying IEP was adequate to provide
educational benefit” to the student. Id. at 23. The Court found the argument “unpersuasive,” in
part because “since the very beginning of the administrative process, [the] [p]laintiffs ha[d]
objected to the failure of the . . . IEP to include” appropriate accommodations. Id. By contrast,
the plaintiffs here admit that they did not raise the issue until it was raised at the administrative
due process hearing. 4 Pls.’ Obj. at 1.
3
The named defendant in Gellert was the District of Columbia Public Schools (“DCPS”) rather than the District of
Columbia itself. However, “[c]ourts in this District have held on numerous recent occasions that DCPS is non sui
juris—that is, non-suable as an entity separate from the District of Columbia.” Blue v. District of Columbia, 850 F.
Supp. 2d 16, 22 (D.D.C. 2012) (collecting cases). Rather, “[t]he proper party against whom [a] [p]laintiff must
bring her claims is the District of Columbia itself.” Id. at 23.
4
Further, unlike the substantive issues in Gellert, the issue that the plaintiffs raise in this case is procedural. Here,
the plaintiffs seek to ensure that the District followed the proper procedures and reviewed the appropriate evidence.
Such procedural issues are always properly considered by the hearing officer. And if, as the plaintiffs allege, “there
is no indication that the school officials’ expertise has been brought to bear on the individual needs of the
handicapped child[,] . . . the deference [the hearing officer should] grant[] will be commensurately lower.”
McKenzie v. Smith, 771 F.2d 1527, 1535 n.17 (D.C. Cir. 1985) (citing Davis v. Dist. of Columbia Bd. of Educ., 552
F. Supp. 1102, 1009 (D.D.C. 1981)).
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B. The Hearing Officer’s Failure to Consider All the Evidence
The District “objects to the [Report and Recommendation’s] conclusion that the hearing
officer failed to consider all of the evidence before him, objects to the recommended remand,
and maintains that” summary judgment is appropriate. Def.’s Obj. at 1.
Although the IDEA provides no specific guidance concerning what specifically must be
included in a hearing officer’s determination, it states that “a decision made by a hearing officer
shall be made on substantive grounds based on a determination of whether the child received a
free appropriate public education.” 20 U.S.C. § 1415(f)(3)(E)(i); see also 34 C.F.R. §
300.513(a)(1) (“[A] hearing officer’s determination of whether a child received a FAPE must be
based on substantive grounds.”). The District of Columbia Public Schools’ Due Process Hearing
Operating Procedures further elaborate upon the requirements of the hearing officer’s
determination and provide that “[t]he Hearing Officer’s Determination must . . . include findings
of fact and conclusions of law; identify who prevailed on what issue; and specify what the school
system, the parent(s), and the child are expected to do to carry out the decision.” District of
Columbia Public Schools, The Special Education Student Hearing Office Due Process Hearing
Standard Operating Procedures § 1003 (emphasis added).
To be sure, “[a] court must give ‘due weight’ to the [hearing officer’s determination] and
‘may not substitute its own notions of sound educational policy for those of the school
authorities.’” Turner v. District of Columbia, __F. Supp. 2d__, __, 2013 WL 3324358, at *3
(D.D.C. 2013) (quoting S.S. v. Howard Rd. Acad., 585 F. Supp. 2d 56, 63 (D.D.C. 2008)).
However, “less deference is to be accorded to the [hearing officer’s determination] than would
be the case in a conventional administrative proceeding. . . . Thus, a court may not simply ‘rely
on the Hearing Officer’s exercise of discretion,’ for a decision ‘without reasoned and specific
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findings deserves little deference.’” Id. (quoting Reid, 401 F.3d at 521). So while a certain
amount of deference should be accorded to the knowledge and expertise of the hearing officer,
courts will accord less deference if the hearing officer’s determination lacks reasoned and
specific findings.
The Court’s review of the hearing officer’s determination in this case reveals that the
determination lacks sufficiently detailed reasoning. The determination states in conclusory
fashion that the “program and placement [outlined in the November 17, 2010 IEP] are
reasonably calculated to provide meaningful educational benefit.” AR at 9-10. In the face of
extensive evidence to the contrary, including evaluations from Doctors Paula Elitov and Larry
Silver; assessments of Kathryn Riverso and Amy Mounce; and testimony of Doctor Jennifer
Durham and Amy Mounce, the Court is not convinced that the November 17, 2010 IEP was not
inappropriate.
Unlike other cases where the plaintiffs alone testified in support of their position, see,
e.g., Kerkam v. Superintendent, 931 F.2d 84, 88 (D.C. Cir. 1991), here several educational
professionals provided support for the plaintiffs’ position. The hearing officer’s determination
does little to address the concerns raised by those professionals. For example, in addressing the
plaintiffs’ argument that M.O. “requires self-contained special education,” the hearing officer
responds, with no citation to the administrative record or his findings of fact, by stating that “a
public school program that incorporates sufficient support mechanisms and services . . . may
well be an adequate (and less restrictive) alternative.” AR at 10. And in response to the
plaintiffs’ argument that the District “‘failed to consider the recommendations of professionals,’
as reflected in [M.O.’s] various evaluations, in developing the IEP,” the hearing officer states
only that the District did in fact consider the recommendations. Id. at 10-11. There is no
14
discussion of the adequacy of the District’s consideration of the recommendations, or why the
District’s review of the evaluations was credited over those of the plaintiffs’ witnesses. Id.
Because the Court “may not substitute its own notions of sound educational policy for
those of school authorities,” Turner, __F. Supp. 2d at __, 2013 WL 3324358, at *3, the Court
finds that on the record before it “a remand for further consideration of the evidence, and for
further findings of fact and conclusions of law, is the only vehicle by which review consistent
with the applicable statutory scheme can be accomplished,” Options Pub. Charter Sch. v. Howe
ex rel. A.H., 512 F. Supp. 2d 55, 57-58 (D.D.C. 2007) (remanding case where hearing officer
made “no findings with respect to the basis upon which she credited . . . testimony” and
“elsewhere . . . relie[d] upon speculation”); see also Iowa v. FCC, 218 F.3d 756, 760 (D.C. Cir.
2000) (remanding case for further consideration because the Commission failed to address the
petitioner’s argument); Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (“[T]he [agency’s]
decision did not respond to two of [petitioner’s] arguments, which do not appear frivolous on
their face and could affect the [agency’s] ultimate disposition . . . .”). 5
IV. CONCLUSION
For the foregoing reasons, the Court will adopt Magistrate Judge Facciola’s Report and
Recommendation, deny the parties’ motions for summary judgment, vacate the hearing officer’s
5
The defendant argues, Def.’s Reply at 2, that this Court should follow a decision authored by another member of
this Court in which he refused to vacate and remand a hearing officer’s determination because the determination was
“sufficiently detailed to permit the district court to understand the basis for the hearing officer’s resolution of the
parents’ claims . . . . and even if th[e] Court granted his assessment no deference, the administrative record fully
support[ed] his conclusions,” Anderson v. Dist. of Columbia, 606 F. Supp. 2d 86, 90 n.1 (D.D.C. 2009) (Leon, J.).
The standard that the Court applied in Anderson is no different than that applied here. In Anderson, the Court
observed that the IEP’s “attributes align[ed] almost exactly with those recommended by [the student’s] educational
advocate,” whereas the plaintiffs rested their objections “on a single visit” to the school that the student was to
attend. Id. at 92. On the contrary and as discussed above, the administrative record in this case presents a wealth of
evidence on both sides of the ledger, and thus the hearing officer must more adequately explain his reasoning for
choosing one position over the other.
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decision, and remand the matter to the hearing officer for further evaluation and in particular to
explain why certain evidence was credited in lieu of other conflicting evidence.
SO ORDERED this 30th day of September, 2013. 6
REGGIE B. WALTON
United States District Judge
6
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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