Damarcus S. ex rel. K.S. v. Dist. of Columbia

• Decision Date: 23 May 2016
• Docket Number: Civil Action No. 15-851 (ESH)
• Citation: 190 F.Supp.3d 35
• Parties: Damarcus S., by and through his Parent, K.S., Plaintiffs, v. District of Columbia, Defendant.
• Court: U.S. District Court — District of Columbia

190 F.Supp.3d 35

Damarcus S., by and through his Parent, K.S., Plaintiffs,

v.District of Columbia, Defendant.

Civil Action No. 15-851 (ESH)

United States District Court, District of Columbia.

Signed May 23, 2016

Caitlin E. McAndrews, McAndrews Law Offices, PC, Alexandria, VA, Michael E. Gehring, McAndrews Law Offices, Berwyn, PA, for Plaintiffs.

Aaron Josiah Finkhousen, Office of the Attorney General for the District Of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Plaintiff Damarcus S. is a sixteen year-old student in the District of Columbia Public Schools ("DCPS") who has been diagnosed with an intellectual disability. (See Administrative Record ("AR") at 443.) Damarcus and his mother K.S. bring this suit under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. , and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. They allege that the District of Columbia ("the District") has failed repeatedly over many years to provide Damarcus with a Free Appropriate Public Education ("FAPE"), as required by the IDEA. After an administrative due process hearing, plaintiffs were awarded fifty hours of compensatory education for the District's failure to provide an appropriate behavioral plan in 2013 and 2014. (See AR at 1-17.) Otherwise, the majority of their claims were dismissed as either time-barred or lacking in merit. (Id. ) Plaintiffs challenge those rulings in the Hearing Officer's Determination ("HOD"). (See Compl. [ECF No. 1].)

Although the IDEA provides that the District Court "shall hear additional evidence at the request of a party," 20 U.S.C. § 1415(i)(2)(C), neither party has identified any deficiency in the record or moved for an evidentiary hearing. Instead, they have each filed cross-motions for summary judgment based on the existing administrative record. (See Pls.' Mot. for Summ. J. [ECF No. 15]; Def.'s Cross-Mot. for Summ. J. [ECF No. 17].) For the reasons set forth below, the parties' cross-motions are granted in part and denied in part, and the case will be remanded for further proceedings before the Hearing Officer.

BACKGROUND

Damarcus entered DCPS as a first grader in the 2006-2007 school year. (See AR at 30.) The District gave him a comprehensive psychological evaluation in November 2006, which showed "severe cognitive problems," assessment scores in the Below Average to Lower Extreme range, overall thinking and reasoning abilities in the 1st percentile, and behavioral problems that had previously resulted in a diagnosis of Oppositional Defiant Disorder

. (See id. at 29-39.) The 2006 evaluation also noted that the previous year Damarcus had been found to have a Full Scale IQ ("FSIQ") of 76. (See id. at 30.) The following year he was diagnosed by the District with an intellectual disability and placed full-time in the special education classroom. (See id. at 6, 40.) Damarcus faces numerous other challenges, including Attention Deficit Hyperactivity Disorder (id. at 289) and periods of homelessness (see id. at 432 (noting that Damarcus's family "has been displaced twice without securing permanent housing"). Nevertheless, the record consistently reflects both his friendliness and his eagerness to learn. (See, e.g., id. at 6 ("a pleasant and engaging young man with many social strengths"); id. at 132-33 (a friendly student "who is eager to attend and puts forth effort to complete activities requested of him").)

Since entering DCPS, Damarcus has failed to make meaningful academic progress in key areas—as an eighth grader, Damarcus's literacy and written expression skills were at a kindergarten grade level, while his mathematics skills ranged from kindergarten to second grade level. (See id. at 243-48.) This lack of progress is illustrated starkly in Damarcus's 2014 Individualized Education Program ("IEP"),¹ which indicated that his baseline in written expression had not changed in nearly three years. (See id. at 248 (stating baseline "[a]s of 8/30/11").) His goals and objectives, which also remained static across multiple IEPs, similarly indicate his lack of progress. (See, e.g., id. at 67-69, 154-55 (2012 IEP goals and objectives in mathematics, reading, and written expression all repeated word-for-word in 2013 IEP). Despite this, the level of individual services provided by DCPS steadily decreased throughout the relevant time period. In 2010 and 2011, as a student at Malcolm X Elementary School, Damarcus received four hours per month of speech-language pathology and four hours per month of behavioral support (id. at 45, 62); in 2012, his behavioral support at Langley Education Campus was cut in half to two hours per month (see id. at 71); the following year, his speech-language hours were cut to two hours per month (see id. at 159); and in 2014, having moved on to McKinley Middle School, Damarcus's speech-language hours were cut to thirty minutes per month. (See id. at 251.)

The District re-evaluated Damarcus in February 2013. His Speech-Language Reevaluation found "severe receptive-expressive language and low receptive-expressive vocabulary," with results on the TOLD-I:4 assessment in the Very Poor range on every metric. (See id. at 125, 127.) His Psychological Reevaluation showed scores on the KABC-II assessment in the Below Average to Lower Extreme range, with an FSIQ of 59. (See id. at 139.) His scores were even lower on the WJ-III assessment, which measures academic achievement, thus suggesting that, despite his cognitive difficulties, Damarcus is capable of more than he has achieved thus far. (See id. at 140-42.) The evaluation also found "behavior concerns that impact Damarcus's overall functioning within home and school settings." (Id. at 146.) It concluded that he has "global delays in cognition, academic achievement, and adaptive behavior functioning." (Id. at 149.)

On May 16, 2013, plaintiffs filed a Due Process Complaint ("DPC") with the District alleging, inter alia , that the February 2013 evaluations were inadequate and inappropriate, that Damarcus's IEPs from 2011 to 2013 were deficient, and that the District should have conducted a Functional Behavioral Assessment ("FBA") in order to provide Damarcus with a Behavioral Intervention Plan ("BIP"). (See id. at 175-81.) On January 29, 2014, they filed another DPC, seeking authorization for both an FBA and an Independent Educational Evaluation ("IEE") to examine Damarcus's psychoeducational needs. (See id. at 236-42.)² Finally, plaintiffs filed a complaint on December 16, 2014, raising basically the same deficiencies as those alleged in the May 2013 DPC, but also alleging these deficiencies regarding the 2014 IEP. (See id. at 334-41.)

The December 2014 complaint was buttressed by the conclusions of Dr. Lisi Levisohn, whom plaintiffs hired at their own expense to provide an independent neuropsychological evaluation of Damarcus. (See id. at 289-304.) Dr. Levisohn's evaluation relied in part on testing that showed Damarcus to have a General Ability Index of 73, with severe deficits in working memory and processing speed. (See id. at 284 (cognitive testing conducted by Dr. Dahlia Topolosky).) Dr. Levisohn concluded that (1) Damarcus's reading, math, and writing scores were "much weaker than they should be even compared to his intellectual level" (id. at 301) (emphasis omitted), (2) he presents with "extremely deficient auditory working memory and auditory processing" (id. ), and (3) he has a specific learning disability "beyond what would be expected for his low intellectual level" (id. at 303). Plaintiffs also hired Dr. Annie McLaughlin, a behavioral consultant, who submitted a report discussing her brief observations of Damarcus in the classroom. (See id. at 311-12.) Thus, in addition to seeking compensatory education and an appropriate IEP for Damarcus moving forward, plaintiffs also sought reimbursement for the IEEs completed by Drs. Levisohn and McLaughlin. (Id. at 6.)

A due process hearing was held by Hearing Officer NaKeisha Sylver Blount on March 9 and 12, 2015. (Id. at 3-4.) Plaintiffs offered testimony from Damarcus's mother, K.S.; behavioral specialist Dr. McLaughlin; psychologist Dr. Levisohn; speech-language pathologist Ms. Douglas; and Nancy Gregerson, who runs a school specializing in the Lindamood-Bell reading program. (See id. at 4.) The District offered testimony from Damarcus's ninth grade teacher, Christina Sandoval; DCPS social worker Vanessa Wortham; DCPS speech-language pathologist Marnie Cato; DCPS program manager Karen Morgan; and DCPS psychologist Courtney Richmond. (See id. at 4.) The Hearing Officer subsequently determined that (1) all claims arising from conduct that predated December 16, 2012, were barred by the IDEA's statute of limitations; (2) the District denied Damarcus a FAPE when it failed to conduct a behavioral assessment and put in place an intervention plan in 2013 and 2014; but that (3) all other claims relating to the 2013 and 2014 IEPs lacked merit. (See id. at 12-14, 17.) She awarded plaintiffs fifty hours of "behavioral support services to be utilized for mentoring, individual and/or family counseling, and/or any other reasonable purpose of Parent's choice," and she provided that any hours that were not used by June 30, 2016, would be forfeited. (See id. at 17.)

ANALYSIS

I. LEGAL STANDARD

Plaintiffs, as the party challenging the administrative decision, carry the burden of "persuading the court that the hearing officer was wrong." See Reid ex rel. Reid v. Dist. 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 Court must give "due weight" to the hearing officer's determinations and "may not substitute its own notions of sound educational policy for those of the school authorities." S.S. ex rel. Shank v. Howard Road Academy , 585 F.Supp.2d 56, 63–64 (D.D.C.2008) (quoting Bd. of Educ. v. Rowley , 458 U.S. 176, 206, 102 S.Ct. 3034, ...