M.O. v. Dist. of Columbia, Civil Action No. 11–1695 RBW
| Decision Date | 30 September 2013 |
| Docket Number | Civil Action No. 11–1695 RBW |
| Citation | 20 F.Supp.3d 31 |
| Court | U.S. District Court — District of Columbia |
| Parties | M.O., et al., Plaintiffs, v. District of Columbia, Defendant. |
Michael J. Eig, Paula Amy Rosenstock, Michael J. Eig & Associates, PC, Chevy Chase, MD, for Plaintiffs.
Laura George, Office of Attorney General, Washington, DC, for Defendant.
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 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.
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 disorder
, primarily the inattentive type. Id. ¶ 15. Among other educational supports, Dr. Elitov recommended a “small group setting” for M.O. Id. ¶ 15.
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).
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).
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 Complaint Notice, which presented three questions concerning the District's November 17, 2010 IEP, id. ¶ 48; AR at 260, specifically:
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 (). Five other expert witnesses testified that they believed the District's November ...
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