W.G. v. Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
E.W.-G., et al.,
Plaintiffs,
v. Civil Action No. 20-2806 (CKK)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
(March 22, 2023)
E.W.-G., a former student (“Student”) in the District of Columbia, and her parents
(collectively, “Plaintiffs”), filed this action against the District of Columbia (“Defendant” or “the
District”), to challenge a July 7, 2020 Hearing Officer Determination (“HOD”) that rejected their
claim that E.W.-G. had been denied a free and appropriate public education for the 2019-2020
school year, pursuant to the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §§ 1400-1482.
The parties filed cross-motions for summary judgment regarding that HOD, and upon
consideration thereof, this Court issued its [16] Memorandum Opinion and Order, denying without
prejudice the parties’ motions and remanding the case to the Hearing Officer to “adequately
address whether the District’s IEP was ‘reasonably calculated’ to meet E.W.-G.’s academic and
behavioral needs.” Memorandum Opinion and Order, ECF No. 16, at 2.
On March 25, 2022, the Hearing Officer issued his Hearing Officer Determination on
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Remand, which was amended and re-issued on March 27, 2022 (“Am. HOD on Remand”). See
Ex. 1 to Defendant’s [26] Opposition to Third Motion for Summary Judgment. The Court set a
briefing schedule for dispositive cross-motions related to that Amended HOD on Remand, and
those motions are now ripe for resolution. Upon consideration of the Plaintiffs’ [24] Third Motion
for Summary Judgment, and Defendant’s [27] Cross Motion for Summary Judgment, the relevant
legal authorities, and the entire record herein, the Court shall DENY Plaintiffs’ Third Motion and
GRANT Defendant’s Cross Motion, for the reasons explained in detail below.1 A separate Order
accompanies this Memorandum Opinion.
I. BACKGROUND
A. Statutory Framework
The IDEA was enacted to “ensure that all children with disabilities have available to them
a free appropriate public education (“FAPE”) that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education, employment,
and independent living.” M.G. v. District of Columbia, 246 F. Supp. 3d 1, 7 (D.D.C. 2017) (citing
20 U.S.C. § 1414 (d)(1)(A)), see also Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C.
Cir. 2015). Once a child is identified as disabled, the school district must convene a meeting of a
1
In connection with this Memorandum Opinion and Order, the Court considered: (1)
Plaintiffs’ [24] Third Motion for Summary Judgment (“Pls.’ Mot.”) and their Memorandum in
support thereof (“Pls.’ Mem.”) and the exhibits attached thereto; (2) Defendant’s [26] Opposition
to the Third Motion and Cross Motion for Summary Judgment [with the Cross Motion docketed
separately at ECF No. 27] (“Def.’s Opp’n”) and the Amended Hearing Officer Determination on
Remand (“Am. HOD on Remand”), attached thereto as ECF No. 26-1; (3) Plaintiffs’ [28]
Opposition to Defendant’s Cross Motion and Reply in support of Third Motion (“Pls.’ Reply”);
(4) Defendant’s [30] Reply to Plaintiffs’ Opposition (“Def.’s Reply”); and (5) the entire record in
this case, including the Administrative Record, ECF Nos. 8, 9, 23. In an exercise of its discretion,
the Court finds that holding oral argument in this action would not be of assistance in rendering a
decision. See LCvR 7(f).
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multi-disciplinary team to develop an individualized education program (“IEP”) for the student.
See 20 U.S.C. § 1414 (d)(1)(A). The IEP “is the centerpiece of the statute’s education delivery
system for disabled children[.]” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 391
(2017) (citation omitted).
The IDEA requires that a school system “offer an IEP that is reasonably calculated to
enable a [disabled student] to make progress in light of the child’s circumstances.” Id. at 399. To
achieve this benchmark, an IEP must include a variety of information, including the child’s current
levels of academic achievement and functional performance, measurable annual goals, how the
child’s progress towards the goals will be measured, and the special education and related services
to be provided to the child. 20 U.S.C. § 1414 (d)(1)(A). The IEP must be formulated in accordance
with statutory requirements that not only require consideration of the child’s individual
circumstances but also emphasize collaboration among parents and educators. 20 U.S.C. § 1414(d)(1)(B); see also 20 U.S.C. § 1415 (b)(1) (the IDEA guarantees parents of disabled children the
opportunity to participate in the evaluation and educational placement process).
Once the IEP is developed, the school system must provide “an appropriate educational
placement that comports with the IEP.” Alston v. District of Columbia, 439 F. Supp. 2d 86, 90
(D.D.C. 2006). “If no suitable public school is available, the school system must pay the costs of
sending the child to an appropriate private school.” District of Columbia v. Vinyard, 901 F. Supp.
2d 77, 80-81 (D.D.C. 2012) (Kollar-Kotelly, J.) (quoting Reid v. District of Columbia, 401 F.3d
516, 519 (D.C. Cir. 2005)). However, parents who “unilaterally” place a child with a disability in
a private school, without consent of the school system, “do so at their own financial risk.” Florence
Cty. Sch. Distr. Four v. Carter, 510 U.S. 7, 15 (1993) (quoting School Comm. of Town of
Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 373-74 (1996)). To qualify for tuition
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reimbursement under the IDEA, a plaintiff must demonstrate that: (1) the school district failed to
provide a FAPE; (2) the plaintiff’s private placement was suitable; and (3) the equities warrant
reimbursement for some or all of the cost of the child’s private education. Forest Grove Sch. Dist.
v. T.A., 557 U.S. 230, 247 (2009).
B. Factual Background2
E.W.-G. was a 13-year old student residing in the District of Columbia with her parents at
the time of the due process hearing in this case, and she qualifies for special education under the
IDEA disability classification Specific Learning Disabilities (“SLD”). Am. HOD on Remand,
ECF No. 26-1, at 3. E.W.-G. experiences difficulties “understanding language organization,
language processing, and [has] compromised lexical/semantic skills” that impact her in the
classroom setting. Administrative Record (“AR”) 224. And while E.W.-G. performs in the
“average to above-average range” with her cognitive functions, she has academic “deficits” in
math calculation, problem solving, reading comprehension, and written expression. AR 218-233.
Moreover, E.W.-G. struggles behaviorally to regulate her emotions and adjust to her social settings
within a general education school environment. AR 217-227.
For the 2018-2019 academic school year, E.W.-G. attended sixth grade at a small private
2
This factual background section reiterates some of the factual background from the
Court’s previous Memorandum Opinion and Order, ECF No. 16, with additional citations to the
Administrative Record, consistent with the facts summarized in Plaintiffs’ Motion and in
Defendant’s Opposition. Citations to the Plaintiffs’ separate Statement of Material Facts as to
Which there is No Dispute, ECF No. 24-2, are not included. Pursuant to LCvR 7(h)(2), the
requirement under subsection (h)(1) to submit a statement of undisputed material facts for or in
opposition to summary judgment “shall not apply to cases in which judicial review is based solely
on the administrative record [but instead], [i]n such cases, motions for summary judgment and
oppositions thereto shall include a statement of facts with references to the administrative record.”
LCvR 7(h).
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school in Bethesda, Maryland, called Oneness Family School (“Oneness”). AR 626. Within
Oneness, E.W.-G. was placed in general education classes with approximately 17-18 students and
two teachers. AR 9. Academically, E.W.-G. started her sixth-grade year on grade level. AR 7-8.
But E.W.-G. became “easily overwhelmed by sounds” and would sometimes “elope from the
classroom.” AR 9. E.W.-G. also developed a habit of laughing at her classmates and making
“mean-spirited comments to them.” AR 9. Laura Solomon, Ed.D., the parent’s educational
consultant, was brought into the school to collaborate with the therapist and school staff and
develop a behavior plan. AR 482-483. Furthermore, Oneness required that E.W.-G.’s parents
provide her with an academic tutor, and E.W.-G. also received counseling from a licensed social
worker. AR 627-629. Notwithstanding these efforts, E.W.-G. became increasingly “disruptive”
and “difficult to manage” during the 2018-2019 school year, and in March 2019, Oneness
“informed E.W.-G.’s parents that [E.W.-G.] was not welcome to return” for the 2019-2020
academic year. AR 11, 637.
E.W.-G. underwent some academic and psychological testing while at Oneness and also
subsequently. On January 6, 2019, Dr. Solomon completed an educational assessment of E.W.-
G. AR 10. E.W.-G. scored in the high average range on sentence reading fluency; average in
broad reading, letter-word identification, passage comprehension, basic reading skills, word
attack, broad written, language, spelling, and writing samples; low average in math facts fluency;
and low in broad math, calculation, applied problems, and sentence writing fluency. AR 10. On
February 8, 2019, Laura Rubinoff, M.S., CCC-SLP, completed a Speech and Language Evaluation
of E.W.-G. that revealed “a statistically significant Receptive and Expressive Language Disorder,
characterized by challenges in actively holding onto incoming language long enough to act upon
it, in understanding language that increases in length, grammatical complexity and degree of
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abstraction, in verbal expression and in memory storage strength and work retrieval.” AR 10-11.
Ms. Rubinoff recommended that the Student “resume language and literacy treatment no less than
120 minutes per week.” AR 11.
In April 2019, E.W.-G’s parents initiated a “Child Referral” request to District of Columbia
Public Schools (“DCPS”), asking the District to consider special education placements for E.W.-
G. for the upcoming 2019-2020 school year. AR 311. On July 18, 2019, Delisa Green, DCPS
Speech and Language Pathologist, completed an Independent Educational Evaluation Review of
Ms. Rubinoff’s evaluation and found that it “lacked discreet assessments of receptive and
expressive vocabulary, which are essential elements in what is considered to be a comprehensive
speech and language evaluation from DCPS.” AR 11. Ms. Green conducted fluency, picture
vocabulary and expressive vocabulary testing, and she noted neither a statistically significant nor
clinically meaningful difference between the receptive and expressive vocabulary scores. AR 11.
Accordingly, Ms. Green concluded that E.W.-G. “should be able to understand and use curriculum
vocabulary on par with her age matched peers given some cues and support” although she had
speech deficits requiring direct services. AR 11.
On July 25, 2019, Shannon Waters, M.A., DCPS school psychologist, completed a review
of Dr. Solomon’s January 6, 2019 evaluation and reviewed a Wechler Intelligence Scale (WISC-
V) test of E.W.-G. conducted on January 3, 2019, where E.W.-G. was average to above average
in all cognitive areas, AR 12, and she conducted a behavior assessment (Behavior Assessment
System for Children). AR 246-256. Ms. Waters concluded that E.W.-G. “appears to have
difficulty with self-regulation across all areas and will likely require support in and out of the
classroom in the school setting,” and she noted that a [Functional Behavioral Assessment] may
need to be completed to determine the need for a more formal behavior plan. AR 12, 255.
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On July 31, 2019, a team from DCPS convened and determined that E.W.-G. was “eligible
as a student with SLD in the areas of Written Expression, Math Calculations, and Reading
Comprehension, and would require specialized education in all academic areas, and related
services in Behavior Support [ ] and Speech.” AR 13. On August 21, 2019, DCPS held an IEP
meeting for E.W.-G., and the IEP team, which included E.W.-G.’s mother, agreed to establish
goals for E.W.-G. in the areas of math, reading comprehension, written expression, and behavioral
self-awareness. AR 216-231. E.W.-G.’s IEP noted the E.W.-G. “demonstrates difficulty with
aggression, conduct problems, anxiety, depression, anger control and withdrawal.” AR 217. The
IEP stated further that E.W.-G. “is able to communicate on an every day level with her peers and
teachers” although she “presents weaknesses in her oral language skills” while she “presents
relative strengths in her . . . speaking vocabulary, her pragmatic language skills, her vocal
functioning, and speech fluency skills.” AR 217. E.W.-G’s IEP prescribed 15 hours per week of
specialized instruction, 5 in general education and 10 outside general education, 4 hours per month
of speech-language services outside general education, 4 hours per month of behavioral support
services outside general education, and 1 hour per mount of speech and language consultation
services. AR 228, 232-235. DCPS proposed to implement E.W.-G.’s IEP at Alice Deal Middle
School (“Deal School”), where she would take science, history, and “non-core” classes, such as
physical education and art, within general education classes of approximately 25 students and 1
teacher. AR 848-851; 871-874.
At the end of the meeting, Plaintiffs’ counsel indicated that the family felt that E.W.-G.’s
“needs are multifaced and [she] require[s] a more restrictive environment than Deal Middle
School. AR 15. Plaintiffs were encouraged by DCPS to visit Deal Middle School. AR 15. On
August 23, 2019, two days after the IEP meeting, Plaintiffs notified the District that they rejected
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E.W.-G.’s IEP and her proposed placement at Alice Deal Middle School. AR 15. Plaintiffs
unilaterally enrolled E.W.-G. at the Chelsea School for the 2019-2020 academic year. AR 15. The
Chelsea School is a non-public day school in Hyattsville, Maryland, and the cost of tuition for the
2019-2020 school year was $39,000, plus an additional $3,200 for related services. AR 650, 668.
On March 19, 2020, Plaintiffs filed a request for an administrative due process hearing to
challenge E.W.-G.’s August 21, 2019 IEP, under the IDEA. Plaintiffs argued that the IEP “fail[ed]
to provide sufficient special education instruction outside of general education to enable [E.W.-
G.] to make meaningful educational progress and that E.W.-G.’s “academic skill deficit, combined
with her significant challenges with social, emotional, behavioral, and attention deficits
necessitates a more restrictive placement.” AR 58. Subsequently, Hearing Officer Terry Michael
Banks convened an administrative hearing over the course of three consecutive days in June 2020.
On July 7, 2020, the Hearing Officer issued his amended final HOD denying Plaintiffs’ due process
challenge to the IEP. On October 2, 2020, Plaintiffs filed a civil action in this Court to challenge
the HOD under the IEP. See Compl., ECF No. 1, at ¶¶ 36-42.
As previously noted, Plaintiffs filed a motion for summary judgment challenging the July
7, 2020 HOD, and this Court issued its [16] Memorandum Opinion and Order remanding the case
to the Hearing Officer to address “whether the District’s IEP was ‘reasonably calculated’ to meet
E.W.-G.’s academic and behavioral needs.” Id. at 1-2. In accordance with the remand Order, the
Hearing Officer held a second administrative hearing on June 16-18, 2020, via videoconference,
and his [23] HOD on Remand was issued on March 25, 2022, and amended on March 27, 2022.
See Amended HOD on Remand, ECF No. 26-1. Plaintiffs move this Court for summary judgment
vacating the Amended HOD on Remand and awarding tuition reimbursement. Defendant cross-
moves for summary judgment upholding the Amended HOD on Remand and denying tuition
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reimbursement.
II. LEGAL STANDARD
“Although motions for review of an HOD are called motions for summary judgment, the
Court does not follow ‘a true summary judgment procedure.’” Middleton v. District of Columbia,
312 F. Supp. 3d 113, 128 (D.D.C. 2018) (quoting L.R.L. ex rel. Lomax v. District of Columbia,
896 F. Supp. 2d 69, 73 (D.D.C. 2012)); cf. Fed. R. Civ. P. 56. Rather, in a civil action brought to
challenge a Hearing Officer’s determination pursuant to the IDEA, “[a] motion for summary
judgment operates as a motion for judgment based on the evidence comprising the record and any
additional evidence the court may receive.” D.R. v. District of Columbia, 637 F. Supp. 2d 11, 16
(D.D.C. 2009). The motion for summary judgment is “the procedural vehicle for asking the judge
to decide the case on the basis of the administrative record.” M.G. v. District of Columbia, 246 F.
Supp. 3d at 8 (citation omitted).
A court reviewing an administrative IDEA determination “shall grant such relief as the
court determines is appropriate,” based upon “a preponderance of the evidence.” 20 U.S.C. § 1415(i)(2)(C)); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley,
458 U.S. 176, 205-206 (1982). Courts, however, must refrain from “substitut[ing] their own
notions of sound educational policy for those of the school authorities which they review.” Id. at
206. Accordingly, “[c]ourts sitting on an IDEA appeal do not have unfettered review but must. . .
give due weight to the administrative proceedings and afford some deference to the expertise of
the [independent hearing officer] and school officials responsible for the child’s education.” Gill
v. District of Columbia, 751 F. Supp. 2d 104, 108 (D.D.C. 2010) (citing Lyons v. Smith, 829 F.
Supp. 414, 418 (D.D.C. 1993) (internal quotation marks omitted)). As a general matter, “a hearing
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officer’s findings ‘based on credibility determinations of live witness testimony’ are given
‘particular deference’ where there is no supplementation of the record.” McAllister v. District of
Columbia, 45 F. Supp. 3d 72, 76-77 (D.D.C. 2014) (citation omitted). Nonetheless, “a hearing
decision ‘without reasoned and specific findings deserves little deference.’” Reid v. District of
Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005) (quoting Kerkam v. Superintendent, D.C. Pub.
Schs., 931 F. 2d 84, 87 (D.C. Cir. 1991) (internal quotation marks omitted).
III. ANALYSIS
Plaintiffs argue that, in the March 27, 2022 Amended HOD on Remand, the Hearing
Officer failed to properly evaluate E.W.-G.’s IEP under the requirements of the IDEA. To comply
with the substantive components of the IDEA, an IEP must be “reasonably calculated to enable a
child to make progress appropriate in light of the child’s circumstances.” Endrew F., 580 U.S. at
399. The adequacy of an IEP necessarily turns on a fact-intensive assessment of a child’s “unique
needs,” as “a focus on the particular child is at the core of the IDEA.” Id. at 400. Inherent in this
analysis is a direct focus on the specific terms of a student’s IEP and an assessment of how the
provisions of that IEP will further the student’s academic progress. Accordingly, the hearing
officer must expressly evaluate whether the specific IEP under consideration is “reasonably
calculated” to achieve that goal. Id. at 399-400.
The IDEA also requires, however, that “to the ‘maximum extent appropriate,’ public
schools provide students with disabilities an education in the ‘least restrictive environment’
possible.” Z.B. v. District of Columbia, 888 F.3d 515, 528 (D.C. Cir. 2018) (quoting 20 U.S.C. §
1412 (a)(5)(A)). The “least restrictive environment” is the one that “most closely approximates”
the education the disabled child would receive absent her disability. Kerkam, 931 F.2d at 86.
Ultimately, “[t]he key inquiry regarding an IEP’s substantive adequacy is whether, taking account
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of what the school knew or reasonably should have known of a student’s needs at the time, the IEP
it offered was reasonably calculated to enable the specific student’s progress.” Z.B., 888 F.3d at
524; see id. at 526 (“In determining whether [an] offered IEP[ ] [is] reasonably calculated to
provide . . . an appropriate education, the pertinent question is what DCPS actually offered[.]”)3 In
order to be “reasonably calculated,” the IEP must “provid[e] personalized instruction with
sufficient support service to permit the child to benefit educationally from that instruction.” Reid,
401 F. 3d at 519.
A. Amended HOD on Remand
In his Amended HOD on Remand, the Hearing Officer set out lengthy Findings of Fact –
including many references to the record evidence – and Conclusions of Law, which address
whether DCPS denied Student a FAPE by failing to provide an appropriate IEP and placement for
the 2019-20 school year. The Conclusions of Law discuss both the “appropriateness” of the IEP
and “small class” environment. See Am. HOD on Remand, ECF No. 26-1. In this case, the
Hearing Officer concluded that “the IEP [the District] developed for [E.W.-G.], and the placement
it proposed, were reasonably calculated to enable [E.W.-G.] to make progress appropriate in light
of her/his unique circumstances.” Am. HOD on Remand, ECF No. 26-1, at 23. But Plaintiffs
argue that this conclusion, and the Hearing Officer’s rationale as to the appropriateness of the IEP
3
In their Reply, Plaintiffs contest Defendant’s statement that because the “record evidence
does not demonstrate that E.W.-G. required full-time specialized instruction outside of the general
education setting,” the HOD should be affirmed. Pls.’ Reply, ECF No. 28, at 7 (quoting Def.’s
Opp’n, ECF No. 26, at 16). Although Plaintiffs themselves challenged the level of specialized
instruction outside of general education, Plaintiffs submit that this is “not the issue;” rather, the
issue is whether the “IEP offered E.W.-G. FAPE.” Pls. Reply, ECF No. 28, at 7 (citing Z.B., 888
F.3d at 526). The Court notes that while Defendant did make the statement that is contested by
Plaintiffs, Defendant’s discussion and analysis focus ultimately on whether E.W.-G.’s IEP was
appropriate.
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– as summarized in five paragraphs, see Am. HOD on Remand, ECF No. 26-1, at 17-19 – were
flawed.
Specifically, the Hearing Officer found that the IEP was appropriate for the following
reasons: (1) Petitioner “did not contest the Student’s classification, the proposed Areas of Concern,
or any of the goals proposed in the IEP” but only disagreed with the “restrictiveness of the
environment,” preferring a “non-public day school with significantly smaller class sizes;” (2) the
program proposed by DCPS “is more than adequate to meet Student’s documented academic
needs;” (3) because the Student’s limited academic deficits do not warrant an extensive amount of
specialized instruction, it is justified only if “his/her behavior, executive functioning deficits, or
inattention are so extreme as to warrant the additional service,” but the record here “does not
support intensive services for Student’s social/emotional issues;” (4) that while it would be
“inappropriate” to speculate as to the reason why Oneness School disinvited Student to return for
the 2019-20 school year, the Hearing Officer noted that it was only after the Student was disinvited
that the Plaintiffs’ educational consultant “adopted the position that the Student’s social/emotional,
executive functioning, and inattentiveness made it impossible for her/him to succeed in a less than
full-time special education environment with a small student to teacher ratio;” and (5) the records
submitted from Oneness School “do not support that s/he presented anything other than age-
appropriate inattention, which is consistent with the conclusion in the 2016 Psychological
Assessment,” and the only support from Oneness School that varied from this was [Ms. Chick,
identified as Teacher C] reporting that the Student had “difficulty attending in one-on-one
situations, in groups and during lengthy instruction, and demonstrated inappropriate interactions
with his/her peers.” Am. HOD on Remand, ECF No. 26-1, at 17-19. Each of these five “reasons,”
and the parties’ responses thereto, will be discussed in turn.
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1. Parent’s Failure to Contest the Placement
In the instant case, at the July 31, 2019 Eligibility Team Meeting, the team “prescribed
fifteen hours per week of specialized instruction, five in general education and ten outside general
education, four hours per month of speech-language services outside general education, four hours
per month of behavioral support services outside general education, and one hour per month of
speech and language consultation services.” Am. HOD on Remand, ECF No. 26-1, at 17. During
the IEP meeting, E.W.-G,’s mother “agreed with virtually all aspects of the IEP; she expressed
concerns about the size of the school but did not specifically object to the level of specialized
instruction.” Id. at 12. Plaintiffs assert that the parent’s failure to “contest the classification, the
proposed areas of Concern, or any of the goals proposed by the IEP” in this case “has no bearing
on whether the proposed IEP and placement are ‘reasonably calculated to enable E.W.-G. to make
progress appropriate in light of her circumstances.’” Pls.’ Mem., ECF No. 24-1, at 14. While
Plaintiffs’ failure to object to the services proposed may not be dispositive of this issue, it is
certainly relevant to an inquiry regarding the appropriateness of the IEP insofar as the only
objection was school size versus the amount and type of services to be provided. See Schoenbach
v. District of Columbia,309 F. Supp. 2d 71, 89 (D.D.C. 2004) (noting that “parents must talk, or
complain, when given the chance” when a child’s IEP is being developed).
2. Adequacy of the Program to Meet Student’s Academic Needs
At the Eligibility Team Meeting held on July 31, 2019, the team “determined that the Student
was eligible as a student with SLD in the areas of Written Expression, Math Calculations, and Reading
Comprehension, and would require specialized education in all academic areas, and related services in
Behavior Support (“BSS”) and Speech.” Am. HOD on Remand, ECF No. 26-1, at 10. Plaintiffs argue
13
that this finding, acknowledged by the Hearing Officer, is inconsistent with his focus in the Amended
HOD on Remand on the Student’s weakness in math. See Am. HOD on Remand, ECF No. 26-1, at 18
(noting that E.W.-G. is a “student whose only true academic weakness is in Math”). Plaintiffs cherry-
pick one sentence from the Amended HOD on Remand, ignoring the context for the Hearing Officer’s
statement that the Student’s weakness in math was demonstrated by the Student “performing at grade
level in November in all subjects [and] [e]ven in Math, the Progress Reports reveal that s/he was earning
C- level grades.” Id.The Hearing Officer explained that “[t]he IEP provides for an hour each day of specialized
instruction in each of [Mathematics, Reading, and Written Expression], “despite evidence that [E.W.-
G.] is already capable of grade level work in Written Expression and Reading,” and he indicated that
neither Plaintiff nor her consultant or counsel raised any objections to the goals developed by the IEP
team in these three areas of concern. Am. HOD on Remand, ECF No. 26-1, at 18. While the Hearing
Officer may have highlighted the Student’s deficits in math in the Amended HOD on remand, the Court
finds that Plaintiffs’ “argument” that the Hearing Officer’s commentary highlights deficiencies in math
has no real bearing on whether the IEP was adequate. Ultimately, the IEP team “maintained Student’s
classification as SLD and provided goals in Mathematics, Reading, Written Expression, Speech, and
Language, and Emotional, Social and Behavioral Development.” Id. at 17. Furthermore, the Hearing
Officer made substantial reference to record evidence when he concluded that the program proposed by
DCPS – “providing a substantial amount of specialized instruction” in areas where there were identified
deficits – would meet E.W.-G.’s academic needs. See, e.g., Am. HOD on Remand, ECF No. 26-1, at
16 (concluding that as of the August 21, 2019 IEP team meeting, E.W.-G.’s cognitive abilities measured
in the average range); at 9 (referencing the school psychologist’s review of the Wechsler Intelligence
Scale for Children, where Student was Average to Above Average in all cognitive areas); at 7-8 (noting
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Dr. Solomon’s January 6, 2019 educational assessment of the Student, where she scored “in the high
average range on sentence reading fluency, average in broad reading, letter-word identification, passage
comprehension, basic reading skills, word attack, broad written, language, spelling, and writing sample;
low average in math facts fluency; and low in broad math, calculation, applied problems, and sentence
writing fluency”).4 Accordingly, the Court concludes that the Hearing Officer’s properly evaluated the
Student’s IEP and provided an ample explanation for his conclusion that the IEP adequately met the
Student’s academic needs.
Plaintiffs allege additionally that the Hearing Officer does not explain why he believes
“the environment in which the services would be delivered is appropriate.” Pls.’ Mem., ECF
No. 24-1, at 16 (emphasis omitted), but the Court disagrees with this statement. The Hearing
Officer indicated that “[s]ince the IEP also provides that 10 of the 15 hours per week of specialized
instruction would be provided out of general education, s/he will be receiving two hours of specialized
instruction per day in a small group environment, and another hour of individualized support in the
general education classroom.” Am. HOD on Remand, ECF No. 26-1, at 18. Furthermore, the issue of
classroom environment was addressed by the Hearing Officer in the first HOD, see
Memorandum Opinion and Order, ECF No.16, at 11 (noting that the Hearing Officer’s “analysis
focuses almost entirely on whether E.W.-G. should be placed in a ‘small-class environment’”)
and was addressed further in pages 19-20 of the Amended HOD on Remand. The larger school
size at Deal was addressed also in this Amended HOD on Remand; see ECF No. 26-1, at 21
4
Plaintiffs state that the Hearing Officer’s analysis ‘ignores that while she was at Oneness, E.W.-
G.’s parents were required to provide her with an academic tutor, along with counseling from a social
worker.” Pls.’ Mem., ECF 24-1, at 16. Plaintiffs do not, however, explain the relevance of this statement,
especially when the IEP provides for specialized instruction outside general education as well as behavioral
support services.
15
(noting Student’s negative reaction to Deal Middle School after visiting and signing the contract
for Chelsea School and expressing the opinion that “the smaller facility footprint, enrollment,
and class sizes at [Chelsea School] are [likely] more desirable to Student and Petitioners than
the circumstances at [New Deal School].”) The Hearing Officer explained however that the
“IDEA does not require a local education agency to maximize the services to disabled students,
but to provide those services that are reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Am. HOD on Remand, ECF No. 26-1, at 21.
Accordingly, this Court finds that Plaintiffs’ challenges to the Hearing Officer’s conclusion that “the
program proposed by DCPS is more than adequate to meet [E.W.- G’s] documented academic needs,”
see Am. HOD on Remand, ECF No. 26-1, at 17, are unpersuasive.
3. Student’s Social/Emotional Issues
The Hearing Officer was tasked with considering whether the IEP was “reasonably calculated” to
enable Plaintiff’s progress in “light of her circumstances,” Memorandum Opinion and Order, ECF No. 16,
at 13, where such circumstances include social and emotional issues. The Hearing Officer noted that the
Student was not diagnosed with ADHD, although Student’s behaviors were “consistent with “suspected”
ADHA.” Am. HOD on Remand, ECF No. 26-1, at 18, 22. Addressing the Student’s inattentiveness, the
Hearing Officer indicated that “[i]n the 2016 Psychological Assessment Addendum, neither
Petitioner/mother nor Student’s teacher questionnaire response resulted in significantly elevated scores
related to inattention.” Am. HOD on Remand, ECF No. 26-1, at 18. Furthermore, “in the two years prior
to the IEP meeting,” there had been no “teacher [who] ha[d] confirmed inattentiveness in the context of an
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evaluation[.]”5 Id. Additionally, the Student’s November 2018 Progress Report praised her for
demonstrating a level of independence and organization. Id. Accordingly, the Hearing Officer concluded
that “at least through the first reporting period of the 2018-2019 school [year], there [was] no credible
evidence whatsoever in the record that Student exhibited inattentiveness in the classroom to the level that
would require extensive services.” Id. Furthermore, “[t]he record does not support that [the Student’s]
behavior is so disruptive, or so significantly impairs her ability to access the curriculum, that a highly
restrictive environment is the appropriate solution.” Id. at 21.
The Hearing Officer did acknowledge that E.W.-G.’s “behavior during the second half of the 2018-
2019 school year complicated the development of an appropriate program.” Am. HOD on Remand, ECF
No. 26-1, at 16. He indicated however that “if Student’s very limited academic deficits do not warrant an
extensive amount of specialized instruction, it can only be justified if his/her behavior, executive
functioning deficits, or inattention are so extreme as to warrant the additional services [but] the record [in
this case] does not support intensive services for Student’s social/emotional issues.” Am. HOD on Remand,
ECF No. 26-1, at 18. In sum, the Hearing Officer proffered that, in this case, the Student’s IEP provided
fifteen hours per week of specialized instruction and one hour per week of BSS, services which Student
never received at the Oneness School, where Student still “made academic progress . . . despite his/her
behavioral issues[.]” See Am. HOD on Remand, ECF No. 26-1, at 21 (noting that “considerably more
services” would be received by the Student under the IEP than Student had previously received).
Besides examining the record evidence relating to Student’s behavioral issues, the Hearing
Officer acknowledged testimony by Paul Rubenstein, a Licensed Social Worker, that Student would
Plaintiffs assert that the “IEP states at Page 2 that “E.W.-G. has ADHD. . .” but “[w]hether
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E.W.-G. does or does not have a diagnosis of ADHD is immaterial[.]” Pls. Mem., ECF No. 24-1,
at 19.
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elope from the classroom when she was overwhelmed, and she tended to laugh at her classmates and make
mean-spirited comments. Id. at 7. The Hearing Officer noted however that while Mr. Rubenstein had
participated in meetings with the Student’s mother and teachers, he had “never conducted a formal
observation of Student in the Classroom.” Am. HOD on Remand, ECF No. 26-1, at 7 n. 27. The Hearing
Officer noted that Dr. Solomon had observed the Student for approximately five cumulative hours over 4-
5 times and stated that she “confirmed” Mr. Rubenstein’s testimony about Student’s elopement and
mocking of her peers. Id. at n. 27. Plaintiffs argue that this acknowledgement of testimony by the Hearing
Officer is inconsistent with his ultimate finding Paul Rubenstein’s and Dr. Solomon’s testimony regarding
the Student’s elopement and antisocial behavior was “anecdotal and exaggerated.” Am. HOD on Remand,
ECF No. 26-1, at 18. The Court disagrees with Plaintiffs’ conclusion that this is inconsistent on its face.
Before concluding that the testimony was “exaggerated” and “anecdotal,” the Hearing Officer weighed the
testimony against other aforementioned record evidence – namely, Student had not been diagnosed with
ADHD; there were no elevated scores for inattentiveness in the 2016 Psychological Assessment
questionnaire responses; the lack of teacher corroboration of inattentiveness in the two years prior to the
IEP; and reports that Student demonstrated a “level of independence and personal organization” and carried
out assignments accurately. Am. HOD on Remand, ECF No. 26-1, at 18.
To bolster their argument that Mr. Rubenstein and Dr. Solomon’s assessment of E.W.-G. was not
exaggerated, Plaintiffs reference some language from the IEP that discusses E.W.-G.’s difficulties with,
inter alia, anger control and resisting impulses that “impact[ ] her progress in the general education
curriculum.” Pls.’ Mem., ECF No. 24-1, at 17. But Plaintiffs’ argument is misplaced for two reasons.
First, the Hearing Officer did not deny that E.W.-G. had behavioral issues; rather, he disputed that the record
in this case indicated that E.W.-G.’s behavioral issues were so serious as to warrant placement in a more
restrictive environment. Second, the IEP in this case took into account that the Student had behavior issues
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that hindered her academic performance, and as such, the IEP prescribed ten hours weekly of specialized
instruction outside general education (and five hours weekly inside general education) as well as specific
behavioral services. Accordingly, as the Hearing Officer was in the best position to assess the credibility
of the witnesses, particularly when measured against the entirety of the record, this Court denies Plaintiffs’
challenge to the Hearing Officer’s conclusion that the Student’s “behavior, executive functioning deficits,
or inattention” were not so extreme as to warrant services additional to those provided by the IEP. See
United States v. Vega, 826 F.3d 514, 543 (D.C. Cir. 2016) (“[C]redibility determinations are entitled to the
greatest deference”) (quotation omitted).
4. Relevance of the Reason that Student was Not Invited back to Oneness School
As part of his analysis of the appropriateness of the IEP, the Hearing Officer looked for the reasons
why Oneness School “disinvited Student to return for the 2019-20 school year.” Am. HOD on Remand,
ECF No. 26-, at 18-19. He proffered that there was no documentation or testimony to explain this, and in
fact, “t[he only negative comments in the meager records offered by Petitioner from [Oneness School]
relate to Student’s laughing at her/his classmates.” Id. at 19. The Hearing Officer found it “inappropriate
to speculate as to the reason,” [for the disinviting] but he did note that it was only after that happened that
Student applied to Chelsea School and was accepted. Id. Subsequently, Dr. Solomon concluded that the
Student was “incapable of progressing in a less than full-time special education environment,” with a “small
student to teacher ratio,” because of her “social/emotional, executive functioning, and inattentiveness
issues.” Id. According to the Hearing Officer, this conclusion by Dr. Solomon stood in contrast to her
earlier evaluations of Student that were supportive of continued enrollment at Oneness School. Id.
Plaintiffs surmise that the Hearing Officer attempts to discredit Dr. Solomon. They argue that, even
as early as 2017, Dr. Solomon supported Student attending Oneness “as long as she receives all the supports
recommended in this report and is seen for a medical consultation,” and Dr. Solomon recommended also
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that the Student’s parents visit other schools and consider beginning the process of obtaining special
education. Pls.’ Mem., ECF No. 24-1, at 20 (referencing Dr. Solomon’s 2017 report). Plaintiffs contend
further that Dr. Solomon’s concerns about E.W.-G. are supported by DCPS’s own psychologist, who
concluded that the Student appears to have difficulty with self-regulation and will require support in and
out of the classroom. Pls. Mem., ECF No. 24-1, at 21.
The Court finds that the Hearing Officer’s fourth “reason” for his decision is not actually a “reason”
supporting his decision but instead, an observation that draws attention to the timing of the educational
consultant’s challenge to the Student’s DCPS placement. Plaintiffs, in turn, point to some record evidence
that demonstrates that the educational consultant raised some general objections earlier in time. As such,
this fourth “reason” stands in equipoise.
5. Records regarding Student’s Inattention
The Hearing Officer indicated that the “only records submitted from [Oneness School] reveal that
Student was performing at grade level in a general education class of 18 students [and] [t]he Progress
Reports do not support that s/he presented anything other than age-appropriate inattention[.]” See Am.
HOD on Remand, ECF No. 26-1, at 19 (noting that the progress Reports were consistent with the
conclusion in the 2016 Psychological Assessment regarding this issue). Furthermore, the Hearing Officer
found that the “only support in the record from [Oneness School] for Student’s performance being affected
by inattentiveness is [Ms. Hannah Chick’s] comments to [Ms. Delisa Green] in July 2019, long after
Student had departed [Oneness School], that Student was not performing on grade level. ” Id. The Hearing
Officer contrasted this with progress reports from other teachers and concluded that Ms. Chick’s comments
did not “justify the level of restrictiveness requested by Petitioner.” Id.
Plaintiffs challenge these statements by the Hearing Officer insofar as Ms. Chick’s “assessment of
E.W.-G. does not “stand alone” as the Hearing Officer suggests, but rather aligns precisely with the
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testimony of Mr. Rubenstein . . . who described E.W.-G. as being overwhelmed, fleeing the classroom, and
when in the classroom requiring one-on-one attention.” Pls. Mem., ECF No. 24-1, at 23. While Ms.
Chick’s assessment may well be consistent with Mr. Rubenstein’s testimony, and while the Hearing Officer
acknowledged both, as previously discussed herein, the Hearing Officer noted that Mr. Rubenstein never
formally observed the Student in the classroom, and the Hearing Officer characterized Mr. Rubenstein’s
statements as “exaggerated.” In this case, the Hearing Officer weighed Ms. Chick’s assessment against
other record evidence assessments that are somewhat inconsistent, and he gave less credence to Ms. Chick’s
assessment. “It is undisputed that ‘the hearing officer is best positioned to make credibility judgments as
to testifying witnesses and resolve factual disputes that amount to inconsistent testimony.’” A.D. v. District
of Columbia, 20-cv-2765 (BAH), 2022 WL 683570, at *11 (D.D.C. March 8, 2022) (quoting J.T. v. District
of Columbia, 496 F. Supp. 3d 190, 207 (D.D.C. 2020)). As previously noted herein, on an IDEA appeal,
courts do not have “unfettered review” but instead must give “due weight” to the administrative
proceedings and “afford some deference to the expertise of the hearing officer and school officials
responsible for the child’s education.” Gill, 751 F. Supp. 2d at 108-109. Accordingly, the Court finds that
Plaintiffs’ challenge to the Hearing Officer’s weighing of Ms. Chick’s assessment fails.
B. Timing of the Amended HOD on Remand
Finally, Plaintiffs argue that Defendant denied E.W.-G. a FAPE “by failing to provide a revised
HOD within a reasonable time.” Pls.’ Mem., ECF No. 24-1, at 38. In support of this argument, Plaintiffs
rely on the fact that the IDEA “prescribes a specific time frame for due process disputes to be decided,” and
furthermore, the “HOD [ ] must be rendered no later than 45 days after the expiration of the resolution
period.” Id.; see 20 U.S.C. § 1415(f)(1)(B)(ii). Plaintiffs cite cases that rely on a failure to provide a timely
HOD or due process hearing, but in the instant case, Plaintiffs do not suggest that the initial HOD was
untimely filed. Rather, Plaintiffs contest the timing of the Amended HOD on Remand, and none of the
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cases cited by Plaintiffs address this issue, nor is there a time frame set out in the IDEA relevant to HODS
issued after remand.
Plaintiffs ignore also that this Court ordered Defendant to file a status report by March 1, 2022, to
explain why the Hearing Officer “had yet to issue a new Determination and when such a Determination
can be expected to issue.” February 26, 2022 Minute Order. Defendant filed its [19] status report on March
1, 2022, indicating reasons for the delay (workload and family emergency circumstances) and proposing
an expected delivery date of March 28, 2022 for the remand HOD. The Court did not alter this proposed
delivery date, and in this case, the HOD on Remand was issued on March 25, 2022, and amended and re-
issued on March 27, 2022. Accordingly, this Court denies Plaintiffs’ argument that the timing of the
provision of the Amended HOD on Remand constitutes a denial of FAPE.
IV. CONCLUSION
Plaintiffs argue that this case is similar to E.W. v. District of Columbia, Case No. 21-cv-1598
(FYP/GMH), ECF 20 [Report and Recommendation] (May 11, 2020), at 10-20, where the court found that
the Hearing Officer (same one as in this case) failed to consider the totality of the evidence and proffered
“meager and insufficient analysis” and the Defendant was chastised for arguing affirmance of the HOD on
grounds not considered by the Hearing Officer. Pls. Reply, ECF No. 28, at 2-3. The Court notes that, in
this case, while the Defendant cited to testimony and portions of the Administrative Record that may or
may not have been considered by the Hearing Officer, the Court looked to the Hearing Officer’s decision
and the sources he relied upon in making its decision.
Defendant asserts that this case is more similar to A.D. v. District of Columbia, No. 20-cv-2765
(BAH), 2022 WL 683570 (D.D.C. Mar. 8, 2022) (involving the same Hearing Officer), which also
involved a dispute about the extent of specialized instruction outside of general education that was adequate
to meet the child’s academic and behavioral needs and a challenge to the proposed placement selected by
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DCPS. In that factually similar case, Chief Judge Beryl Howell found that the Hearing Officer properly
weighed the witness testimony and other record evidence, and his HOD properly assessed the adequacy of
the IEP and provided sufficient evidence to support the conclusion that the IEP satisfied the requirements
of the IDEA.
Having reviewed the Hearing Officer’s Amended HOD on Remand, this Court concludes that
the Hearing Officer correctly determined that the August 21, 2019 IEP was reasonably calculated to
enable E.W.-G. to make progress appropriate in light of her circumstances. See generally Endrew F.,
580 U.S. at 399-400. Furthermore, the Hearing Officer’s conclusion is supported by record evidence,
some of which is specifically discussed in the Findings of Fact set forth in the Hearing Officer’s
Amended HOD on Remand and other evidence that is mentioned more generally throughout the Hearing
Officer’s analysis. Contrary to Plaintiffs’ contentions, the Hearing Officer provides a clear analysis that
demonstrates why the IEP “actually offered” by the District was “reasonably calculated” to meet E.W.-
G.’s academic and behavioral needs, which is what he was tasked to do on remand. The party
challenging the underlying HOD bears “the burden of persuading the [reviewing] court that the
hearing officer was wrong.” Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988). In this
case, the Plaintiffs have failed to meet their burden to persuade this Court that the Hearing Officer was
wrong. Accordingly, this Court need not address Plaintiffs’ ultimate argument that tuition
reimbursement is the appropriate remedy in this case.
__________/s/____________________
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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