N.S., by

his parents, B RUCE and SUSAN STEI N, et al. , Plaintiffs,

v. DI STRI CT OF COLUMBIA, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09–621 (CKK)

MEMORAN DUM OP INION (May 4, 2010) Plaintiffs Bruc e and Susan Stein, on beha lf of their minor son N.S., bring this action under the Individuals with Disabilit ies Education Act (“IDEA” ), 20 U.S.C. §§ 1400 et seq. Plaintiffs claim that N.S. was denied a fre e appr opriate public e ducation (“ FAPE” ) as r equire d by the Act by

Def endants District of Columbia, Adria n M. Fe nty , the Mayor of the D istrict of Columbi a, and Mic helle A. Rhee , Chance llor of District of Columbia Public Schools (“DCPS ”) (collec tively , “De fenda

nts”). Plaintiffs seek to r ever se the de cision of an impar tial hear ing office r, who re

jected Plaintiffs’ c laims that the individualiz ed educ ation prog ram (“ I EP”) cr eate d for N.S. wa s inadequate and that N.S. should have been pla ced in a private sc hool that could addre ss his educational ne eds for the 2008-09 school year . The Steins subsequently place d N.S. in a private school and now se ek re imbursement from De fenda nts for his education ex penses a s well as attorney s’ fe es and c osts. Presently pendingbefor e the Court ar e Plaintiffs’ [13] Motion for Summary

J udg ment and De fenda

nts’ [14] Motion for Summary J udg ment, both of which have be en fully

briefe d and ar e now r ipe for de cision. Also pendingbefor e the Court isPlaintiffs’ [25] Motion for L eave to Supplement the Record. Ha ving c onsidered the parties’ filings, the a

pplicable a

uthorities, and the re cord a s a whole, the Court shall DENY Plaintiffs’ Motion for L eave to Supplement the Record, GRAN T Plaintiffs’ Motion for Summary J udg ment, and DEN Y Def

endants’ Motion for

Summary

J udg ment. I. BACKG ROUND A. The IDEA Statutory Framework The purpose of the I DEA is “to ensur e that all childre n with disabilit ies have available to them a fr ee a

ppropriate public education that emphasizes special educ ation and re lated ser vices desig ned to meet their

unique nee ds . . . .” 20 U.S.C. § 1400(d)(1) (A). “ I mplicit” in the I DEA’s g uara ntee “ is the require ment that the educ ation to which ac cess is provided be sufficie nt to confe r some educ ational bene fit upon the handica pped child.” Bd. of Educ. of Hendric k Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 200 (1982). As a condition of rec eivingfundingunder the I DEA, school districts ar e re quired to adopt proc edure s to ensure a ppropriate educational place ment of disabled students. See20 U.S.C. § 1413. A student’s eligibility for a FAPE unde r the I DEA is deter

mined by the re sults of testing and e valuatingthe student, and the f indings of a “multidiscipli nary

team” or “individualized education program tea m” (“ MDT/I EP team”). Id. § 1414. Such a tea

m consists of the pare nts and teac hers of the disabled student, as w ell as other educational specialists, who meet a nd confe r in a c ollaborative pr ocess to dete rmine how be st to
acc ommodate the nee ds of the student and pr ovide a F APE. See id. § 1414(d)( 1)(B ). School districts must also deve lop a compre hensive plan, known as an individualized education prog ram (“ I EP”), for meetingthe spec ial educa tional needs of e ach disa

bled student. See20 U.S.C. § 1414(d)(2)( A). The I EP must be formulated in ac corda nce w ith the terms of the
2I DEA a

nd “should be re asonably calc ulated to ena

ble the child to ac hieve pa ssing mar ks and advanc e fr om gr ade to grade .” Rowley , 458 U.S. at 204. “I f no suitable public school is available , the school sy stem must pay the costs of sendingthe child to an appr opriate pr ivate school.” Reid ex

rel. Reid v. D istrict of Columbia , 401 F.3d 516, 519 ( D.C. Cir. 2005) (citation and alter ations omitt ed). The I DEA re quires I EPs to include, amongother thing s: (1) “a statement of the c hild’s present leve ls of aca demic ac hievement a nd functional pe rfor

mance , including . . . how

the child’s disability

aff ects the c hild’s involvement and prog ress in the g ener al educ ation curr iculum”; (2) “ a stateme nt of measur able a nnual g oals, including aca demic and func tional goa ls, designe d to . . . meet the child’s ne eds that re sult from the child’s disability to enable the child to be involved in and make prog ress in the g ener al educ ation curr iculum . . . [and] meet ea ch of the child’s other e ducation nee ds that result from the c hild’s disabilit y ”; (3) “ a descr iption of how the child’s progress towa rd mee ting the[se] annual g oals . . . will be
measure d”; and ( 4) “a

statement of the spe cial educ ation and re lated ser vices a nd supplementary aids and ser

vices . . . to be pr ovided to the child, or on be half of the child, and a statement of the prog ram modifica

tions or supports for school per sonnel that will be provided f or the c hild.” Id. § 1414(d)( 1)(A) (i). The I DEA re quires that childre n with disabilit ies be plac ed in the “le ast restric tive environment” so that they can be educated in an integ rate d setting w ith children who a re not disabled to the maxim um ext ent appr opriate. See 20 U.S.C. § 1412(a)(5) (A). T he I DEA a lso g uara ntees pa rents of disable d children the opportunity to participate in the evaluation and place ment proce ss. See20 U.S.C. §§ 1414(f), 1415(b) (1). Par ents who objec t to their child’s “identification, evaluation, or e ducational plac ement” a re e ntitled to an impartial due proc ess 3hear ing, see20 U.S.C. §§ 1415(b)(6), ( f)( 1), at whic h they have a “rig ht to be acc ompanied and advised by

counsel” and a “ rig ht to present evide nce a nd confr ont, cross-e x amine, and c ompel the attenda

nce of witnesses.” 20 U .S.C. § 1415(h). A qualified impar tial hear ing of

fice r conducts the due proce ss hear ing in a ccor dance with the Act. 5 D.C. Mun. Reg s. § 3030.1. Under the I DEA, a

party is entitled to attorney ’s fe es and c osts if he or she is a “ preva iling par ty .” 20 U.S.C. § 1415(i)(3)(B ). To be a preva iling par

ty , one must g ain a “ materia l altera tion of the leg al re lationship of the parties” and g ain a judg ment on the merits. Bridgeforth v. Dist. of Columbia , 933 F. Supp. 7, 10 (D.D .C. 1996). Parents “a g g rieve d by ” a he aringoffice r’s finding s and dec ision may bringa civil ac tion in either state or

fede ral c ourt. 20 U.S.C. § 1415(i)(2); 5 D.C. Mun. Reg s. § 3031.5. The district court ha s remedia l authority under the Act, and br oad discre tion to gra nt “such re lief as the c ourt deter mines is appropriate ” under the I DEA a s g uided by

the g oals of the Ac t. 20 U.S.C. § 1415(i)(2) (C)(iii). B. Facts Relating to the Education of N.S. N.S. is an eig ht-y ear -old child living in the District of Columbia who ha s been deter mined to be elig ible for spe cial educ ation and re lated ser vices. De fs.’ Stmt. ¶ 1. N.S. has a 1
As a pre liminary

matter, the Court notes that it strictly adher es to the text of L ocal Civil 1 Rule 7(h) (f

ormerly Rule 56.1 when re solving motions for summary judgme nt). See B urke v

. Gould , 286 F.3d 513, 519 ( D.C. Cir. 2002) (findingdistrict courts must invoke the local rule befor e apply

ing it to the ca se). The Court has advised the pa rties that it strictly

adher es to Rule 7(h) a nd has stated that it “a ssumes fac ts identified by the moving pa

rty in its st atement of materia l fac ts are a dmitted, unless such a fa ct is controver ted in the statement of g enuine issues filed in opposition to t he motion.” [9] Orde r at 1-2 ( J une 8, 2009). Thus, in most instances the Court shall cite only

to one par

ty ’s Statement of Mate rial F acts (“ Stmt .”) unle ss a statement is contra dicted by

the opposingparty . The Court shall also cite dire ctly to evidence in the rec ord, wher e appr opriate. 4rang e of e ducational disabilities, including sig nificant spee ch/languag e, executive f unctioning, dy slex ia, dy sg raphia , and socia l/emotional difficulties, including a g ener al dy sregulation disorder. Pls.’ Stmt. ¶ 2. From 2006 to 2008, N.S. attended kinde rg arte n and first g rade at Murch Ele mentary

School, his neighbor

hood school. Def

s.’ Stmt. ¶ 2. N.S. was initi ally place d into special educ ation service s at Murch on Ma rch 8, 2007. Id. ; see Admin. Record ( “AR”) 74- 75 (Initial Pl ace ment and Prior to Action Notice ). Duringhis tim e at Murc h, N.S. rec eived spe cial educ ation service s using a “pullout” model in which spec ialized inst ruction wa s delivere d outside the g ener al educ ation classroom setting w ith a specia l educator and fe wer students. Pls .’ Stmt. ¶ 7. The I EP prepar ed for N.S. in 2 September 2007 c alled for N.S. to rece ive 7.5 hours per wee k of spec ialized inst ruction fr om the specia l education teache r and ha lf an hour pe r we ek of c ounselingfrom a sc hool social worke r. See AR 47 (9/21/07 I EP). All of these hour s were provided a s pullout i nstruction awa y from the g ener al educ ation classroom, a nd the September

2007 I EP called for

N.S. to spend 25% of his
overa ll tim e outside the g ener al educ ation setting. See id. ; 2/24/09 Tr. at 148-49. This I EP also stated annua l goa ls for N.S. such as “ master f irst gr ade r eadingstandards w ith 80% acc urac y ” and “ma ster first g rade math standards w ith 80% acc urac y .” See AR at 49-50. The September 2007 I EP indicated that supplemental a ids and servic es could not be pr ovided to N.S. in the g ener al educ ation setting be cause “[s] tudent require s small structured e nvironment to
acc ommodate disabilities.” See AR at 53. Acc ording ly , the September 2007 I EP called for

N.S.
Def endants c ontend that “much of the pullout services f

or N.S. took place in the g ener al 2 education classroom setting.” See Def s.’ Resp. Stmt. ¶ 7. However , the re cord e vidence cited for this proposition is testi mony about what would ha

ve occ urre d in the 2008-09 school y ear , not what ser vices we re pr ovided while N.S. was at Murch in 2006-08. See 2/24/09 Admin. Hr’gTr. (her einaf ter, “ 2/24/09 Tr.”) at 38-39. 5to be place d in a combination of g ener al educ ation and re source classroom (i.e ., pullout) settings.

Id. N.S. experience d signific ant ac ademic a nd behavior al difficulties while at Murch. Pls.’ Stmt . ¶ 8. N.S.’s par ents provided him with private outside e ducational se rvice s duringthis ti me, but he fa iled to make ade quate pr og ress. Id. ¶ 9. In J anuar y 2008, N.S.’ pare nts arra

ng ed for him to be eva luated by

Dr. Kimber ly

Glass. Id. ¶ 10. Dr. G lass found that N.S. had seve ral educational disabilit ies and re commended the maxi mum amount of special e ducation ser vices to be implemented f

or the c oming year

in order to c lose the g ap betwe en N.S.’s ac ademic skills and those of his pee rs. Id. Dr. Gla ss’s repor t also indicated that N.S. had w eak motor c ontrol, with very weak handwr iting skills. See AR at 129-30. On Fe bruar

y 28, 2008, an MDT/I EP team meetingtook place at Murch to re view N.S.’s prog ress. De fs.’ Stmt. ¶ 3. At the meeting , the par ents asked if they could pay

for a private tutor to come into the school and a ssist N.S . duringschool hours. Pls.’ Stm t. ¶ 13. The MDT/I EP team told the par ents that such an a ction would act a s a re jection of the pr oposed I EP, meaning that N.S. would not rece ive any specia l education services f rom the District of Columbia. Id. On May 29, 2008, another

MDT/I EP team meetingwas c onvened, a nd afte r re viewingN.S.’s
rec ords, the tea

m reque sted that new e valuations be c onducted. De fs.’ Stmt. ¶ 6. On J une 12, 2008, the MDT/I EP team met ag ain to discuss N.S.’s I EP and place ment for the upcoming2008-09 school y ear . Pls.’ St mt. ¶ 16. This meeting was attended by N.S.’s pare nts, their counsel, their la w cler k, a socia l worker , a spee ch and la ng uag e patholog ist, the specia l education coordinator f or Murc h, and other

participa nts. Defs.’ Stmt. ¶ 7. The r ecor d contains deta iled notes from the me etingthat descr ibe the discussion that took place
. See AR at
6212-14 (Me etingNotes). The notes indicate tha t the MDT/I EP team would reque st an occupational therapy

(“O T”) e valuation of N.S. See AR 212. N.S.’s g ener al educ ation teac her indicated that N.S. “r equire s a g ood deal of one-to-one instruction.” Id. at 213. The MDT /I EP team dec ided to incre ase N .S.’s special e ducation ser vices fr om 8 hours to 15.5 hours per w eek. Def s.’ Stmt. ¶ 8. The team also propose d that N.S. rec eive a ll of his special educ ation service s in the g ener al educ ation setting using a less intensive “ inclusion” model. Pls.’ St mt. ¶ 18. The meetingnotes indicate that “[g]oals [were] shared in the c ontext of the inclusion classr oom” but also that the “[t] eam discusse [d] the nee d for more time in specialized instruction.” See AR 213. The tea m decided that they

“should revisit/review

the inclusion model of [N.S.’s] instruction afte r the fir st advisory .” Id. at 214. N.S.’s pare nts ex presse d conce rns that an inclusion program would be inappropriate and
overwhelming to N.S., pre ventinghim from makingprog ress. Pls.’ Stmt . ¶ 21. The pa rents then notified the team of their intent to place N.S. at the L ab School, a pr ivate spec ial education school, and see k public fundingfor that plac ement. Id. ¶¶ 23, 32. In addition to their disag ree ment with the ultimate proposal, N.S.’s par ents identified other problems with the I EP that they believed r ender ed it incomplete and ina dequate
. Id. ¶ 24. The June 2008 I EP failed to include N.S.’s pre sent levels of a cade mic achie vement and f unctional per formanc e. Pls.’ Stmt . ¶ 25. The I EP failed to identify any supplementary

aids and ser

vices that N.S. would re ceive in the classroom. Id. ¶ 30. The I EP also failed to include spe cific g oals and objec tives to address N.S.’s signific ant def

icits in written lang uag e skills. Id. ¶ 27. The I EP indicated that N.S. “re quires small structure d environment to ac commodate disabilities” and c ites this as a rea son why “cur ricular modification, ac commodation and/or supplementa ry aids and ser

vices [cannot]
7be used f

or a [least re strictive environme nt] setting in g ener al educ ation.” See AR at 339. The I EP also repe ated a

nnual g oals from the pr evious y ear ’s I EP, calling for N.S. in the sec ond g rade to “master f

irst gr ade r eadingstandards w ith 80% acc urac y ” and “ master f irst gr ade math standards w ith 80% acc urac y .” AR at 336-37. N.S. beg an the 2008- 09 school y ear at the L ab School, wher e he is re ceivingan appropr iate educ ation. Pls.’ St mt. ¶¶ 32-34. N.S. did not attend Murc h afte r the June 2008 I EP was de veloped. De fs.’ Stmt. ¶ 14. On October 31, 2008, N.S.’s pare nts filed a re quest for a due proce ss hear ing to a

ppeal the de cision of the I EP team. Pls.’ St mt. ¶ 35. A due proc ess hea ring
was c onvened ove r two day s, Dec ember 12, 2008, and F ebrua

ry 24, 2009, befor e He aringOffic er L atif Doman. Pls.’ Stmt. ¶ 36. C. Testimony at the Due Proc ess Hearing N.S.’s pare nts presente d testimony at the due pr ocess he aringfrom thre e outside witnesses: Michelle Da

vis, a specia l education ex pert, Donna Pavluk, a spee ch and la

ng uag e thera py expert, and Christine Chang , an occ upational thera py expert. Pls.’ S tmt. ¶ 37. N.S.’s mother, Susan Stein, also testified. Id. DCPS prese nted testimony from B renda

L ewis, the principal at Murch, Andr ea Chua hy , a spec ial educator at Murc h, and Jeanette Perr y Mitchell, specia l education supervisor at Murc h. Id. ¶ 38. Ms. Davis testified that N.S. had f ailed to make prog ress a

t Murch and that N.S. was makingprog ress at the L ab School. Id. ¶ 40. Mses. Chang and Pavluk also noted N.S.’s progress at the L ab School and his nee d for e x tensive support eve n in that setting. Id. ¶ 42. DCPS’s witnesses testified that the proposa l at Murch wa s appropr iate for N.S. Id. ¶ 44. Principal L ewis explained in her testimony that for the 2008- 09 school y ear , Murch
8adopted a

new inclusion model for

specia l education known as the “sc hoolwide application model.” See 2/24/09 Tr. at 54. Ms. L ewis testified that she e x plained to N.S.’s par ents how the inclusion setting wor

ks and what it would look l ike. See 2/24/09 Tr. at 37-39. She testified that she had e x plained that N.S. would re ceive a combination of instruc tion in the ge nera l education setting a nd pullout specialized instruction. See id. at 37-38 (“ [I ]twas spec ifically stated by me that [N.S .] wil l not ge t strictly inclusion settings that he w ould also be able to have the pullout setting a s well.”); id. at 39 (“H e would also be havingthe pullout specialized instruction so that he is meetinghis benchmar ks.”) Ms. Stein testified that it was her understandingthat for the 2008-09 school y ear , Murch wa s not going to do pullout s essions any more a nd that the J une 2008 I EP called for

N.S. to rece ive all of his instruction in the g ener al educ ation setting. See 12/5/08 Admin. Hr’gTr. (he reina fter, “ 12/5/08 Tr.”) at 92-93. Ms. Stein also testified that Murch officia ls did not ex plain to her pre cisely in what setting N.S. would rec eive his instruction and that “they ’d just fig ure it out.” Id. at 93. Ms. Mitchell testified that the possibilit y of adding pullout sessions for N.S. was discussed at the June 2008 I EP meetingbut that she did not know how clea rly that messag e wa s rec eived. See 2/24/09 Tr. at 143. Ms. Chuahy

testified that at the mee ting on June 12, 2008, the MDT/I EP team ag ree d that the 15 hours of spe cialized instruction should all be in the g ener al educ ation setting. See 2/24/09 Tr. at 123- 24. Ms. Chuahy testified that she did not rec ommend pullout services at that time beca use the I EP called for

possible adjustments to be made and pullout servic es could be added later. Id. Specifica lly , Ms. Chuahy testified that the team discussed at the June meetingthe possibili ty

of addingpullout services a fter the first advisory meeting
. See id. at 125-27. B oth Ms. L ewis and Ms. Mitchell testified that the June 2008 I EP did not call for N.S. to be provided
9with any

pullout services. 2/24/09 Tr. at 57, 156. Ms. Mit chell explained that the intent was to
rea ssess how N.S. was doingafte r an initial period to see whether pullouts would be nece ssary . See id. at 157. Ms. Mitchell also explained that Murch’s a doption of the “schoolwide application model” had some bear ing on N .S.’s placeme nt. Id. at 149. When asked how the J une 2008 I EP would have be en implemented at Murch, Ms. Chuahy testified that N.S. would have be en provide d two hours of spec ialized inst ruction ea ch morning in rea ding a

nd math, with one hour of a dditional inst ruction ea ch af ternoon. See 2/24/09 Tr. at 77-82. The two hours of re adingand math instruction ea ch morningwould be provided in the g ener al educ ation classroom settingwith the specia l education teache r g iving specia l instruction to a small group of students. See id. at 78-79. Ms. Chuahy testified that N.S. would be pulled out of the c lassroom for the additional hour of instruction in the af ternoon, which would be pr ovided by the spec ial education teache r. See id. at 81-82. Ms. Chuahy testified that additional pullout tim e could be arr ang ed if ne cessa ry and could be provided by other re adingand math spec ialists. Id. at 82-84. Ms. Mitchell testified that the I EP is “alway s a workingdocument” tha

t could be modified if ne cessa ry based on the student’s nee ds, and that if pullout services we re ne eded f or N.S., he would g et them. See id. at 142-44. Ms. Mitchell further testified if the MDT/I EP team had de termined that N.S. could not make it in an inclusion prog ram, it would have considere d place ment at another school. Id. at 144. Ms. L ewis testified that based on he r per sonal knowledg e of N .S., she believed he could be suc cessf ul “[w] ith the inclusion as well as the a dditional supports provided throug h the pullout.” 2/24/09 Tr. at 39. D. The Hearing Officer De cision The He aringOffic er issued a written dec ision and order (“H ear ing O ffice r De cision” or
10“HOD ”) on Ma rch 6, 2009. SeeAR 1-6 (HO D). The Hea ringOffic er r ejec ted Plaintiffs’ claims that Def endants de nied N.S. a F APE by failingto include nec essar y sections in his I EP. Id. at 5. The He aringOffic er a lso rejec ted Plaintiffs’ claims that the I EP was inappropr iate bec ause it failed to mee t N.S.’s needs. Id. The He aringOffic er c oncluded that Plaintiffs had not met their burden to show that Murc h was a n inappropriate place ment and that N.S. should have be en place d instead at the L ab School. Id. at 5-6. The Hea ringOffic er note d that beca use N.S. had not spent any

time at Murch lea

rningunder the J une 2008 I EP, Pl aintiffs’ c oncer ns about its inadequa cy

wer e spec ulative. Id. at 5. The H ear ing O ffice r also cr edited the testimony of DCPS witnesses who said that N.S.’s ne eds could be addre ssed at Murc h and found the ir testimony more pe rsuasive tha

n Plaintiffs’ witnesses. Id. In particula r, the He aringOffic er f

ound persua sive the testimony

of the spec ial education teache r at Murc h, Ms. Andrea Chuahy , who had previous experienc e tea chingat the L ab School and testified that N.S.’s needs c ould be met with the I EP at Murch. Id. at 5-6. The Hea ringOffic er c oncluded that Plaintiffs had f ailed to re but her te stimony

that place ment at Murch pr ovided N.S. with the basic floor of opportunity

require d by the I DEA. Id. at 6. II. LEGAL STANDARD A. Summary J

udgment Unde r Federal Rule of Civil Proce dure 56 The pa rties have filed cr oss motions for summary judgme nt pursuant to Fe dera l Rule of Civil Procedur e 56. Summary judgme nt is proper whe n “the plea dings, the discovery [i f any] and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P
. 56(c) . Under

the summary

judgme nt standard, the movingparty bear s the “initial responsibility
11of informingthe district court of the basis for its motion, and identifying those portions of the

pleading s, depositions, answers to interr og atories, a nd admissions on file, toge ther with the aff idavits, if any , which it believes de monstrate the a bsence of a g enuine issue of materia l fac t.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (inter nal quotation marks omitted). In response , the non-movingparty must “g o beyond the pleading s and by [i ts] own af

fidavits, or by the depositions, answer s to interrog atories, a nd admissions on file, desig nate spe cific f acts showing that there is a g enuine issue f or trial.” Id. at 324 (interna l quotation marks omitted). All underlying f

acts a nd infere nces a

re a naly zed in the light most favora ble to the non-movingparty
. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). The mer e existence of a

fac tual dispute, by

itself, is insufficient to bar summar y judgme nt. See A nderson v. Liberty Lobby, Inc

. , 477 U.S. at 248. To be mate rial, the fa ctual
asser tion mustbe ca

pable of aff ectingthe substantive outcome of the litigation; to be g enuine, the issue must be supported by sufficie nt admissible evidence that a re asonable trier of fac t could find for the non-moving party
. Laningham v. U.S. Navy , 813 F.2d 1236, 1241 ( D.C. Cir. 1987); Liberty Lobby , 477 U.S. at 251-52 (the c ourt must determine “ whether the evidenc e pre sents a sufficie nt disag ree ment to require submissi on to a jury or whe ther it is so one-sided that one party must prevail as a

matter of la

w”) . “I f the e vidence is merely colora ble, or is not sufficie ntly probative, summar

y judgme nt may

be g rante d.” Liberty Lobby , 477 U.S. at 249-50 (inter nal citations omitt ed). “ Mere alleg ations or denials in the a dverse party ’s pleading s are insufficient to defe at an other

wise prope r motion for summary judgme nt.” W

illiams v. Call aghan , 938 F. Supp. 46, 49 (D.D.C. 1996). The a dverse party must do more than simply “show that ther e is some metaphy sical doubt as to the material fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio
12Corp. , 475 U.S. 574, 586 (1986). Conclusory asser tions offere d without any fac tual basis for support do not satisfy

an opponent’ s burden to set for th “af firmative e vidence ” showinga g enuine issue f

or trial. Broaddrick v . Exe c. Office of the President , 139 F. Supp. 2d 55, 65 (D.D.C. 2001) ( citing Laningham , 813 F.2d at 1241). B. Rev iew of an Administrat ive De cision Under the I DEA The I DEA pe rmits “any

party ag g rieve d by

the finding s and dec ision” rende red dur ing administrative proc eeding s to “bringa civil ac tion” in state or fe dera l court without reg ard to the amount in controver sy . 20 U.S.C. § 1415(i)(2). The revie wingcourt “ shall rec eive the r ecor ds of the a dminist rative pr ocee dings, sha ll hear a dditional evidence at the re quest of a pa rty , and, basingits decision on the preponde ranc e of the evidenc e, shall g rant such r elief a s the court deter mines is appropriate .” 20 U.S.C. § 1415(i)(2) (C). In a re view of a Hea ringOffic er Dec ision (“HOD” ), the burde n of proof is alway s on the party

challeng ing the administrative deter mination, who must “at least take on the burden of persua ding the court that the he aring office r wa s wrong , and that a c ourt upsetting the office r’s de cision must at least expl ain its basis for doingso.” Reid, 401 F.3d at 521 (quoting Kerkam v . McKenzie , 862 F.2d 884, 887 ( D.C. Cir. 1988)). The Supreme Court has held that the I DEA’s pr eponder ance -of- the-e vidence standard of revie w does not authorize unfe ttered de novo revie w. See Rowley , 458 U.S. at 206 (“Thus the provision that a re viewingcourt ba se its decision on the ‘pr eponder ance of the e vidence ’ is by no
means a n invitation to t he cour

ts to subst itute their own notions of sound educa tional policy

for those of the sc hool authorities which they revie w.”) Courts must give administrative pr ocee dings “due w eig ht,” id. , and “[f]actual finding s from the a dminist rative pr ocee dings a re to be
13considere d prima fa cie c orre ct.” Roark ex rel. Roark v . District of Columbia , 460 F. Supp. 2d 32, 38 (D.D.C. 2006) ( quoting S.H. v. State- Operated Sc h. Dist. of the Cit y of Newark, 336 F.3d 260, 270 (3d Cir. 2003)). H oweve r, the statute a lso sugg ests “less def ere nce tha

n is conventional in administrative proc eeding s,” Reid , 401 F.3d at 521, since the district cour t is allowed to hear additional evidenc e at the r equest of the party
. See 20 U.S.C. § 1415(i)(2)(C)( ii). When no additional evidenc e is introduced in a civil suit seeking r eview of a HOD , a motion for summary judgme nt operates as a motion for judg ment based on the evidenc e compr ising the r ecor d. 20 U.S.C. § 1415(i)(2)(B ); District of Columbia v. Ramirez , 377 F. Supp. 2d 63, 67 (D.D .C. 2005). Under the I DEA, pa

rents who unilater ally

decide to place the ir disabled child in a pr ivate school, without obtaining the c onsent of loca l school officia ls, “do so at their own f inancial r isk.” FlorenceCounty Sch. Dist. Four v. Carter , 510 U.S. 7, 15 (1993) (quoting Sch. Comm. v . Dep’ t of Educ. , 471 U.S. 359, 374 (1985)). Par ents may only rec eive tuition reimburseme nt if a cour t conclude s that (1) “ the public school plac ement violated the I DEA” and (2) “ the private school place ment was prope r under the Act.” Id. at 15. Importantly , the first fa ctor is a thre shold question: if the public school place ment would have be en appr opriate, the court’s a naly sis ends, and a disa bled child’s par ents are not entitled to reimbursement. 20 U.S.C. § 1412(a) (10)( C)(i) (“[The I DEA] does not require a loca l educational ag ency to pay for the c ost of educa

tion, including spe cial educ ation and re lated ser vices, of a

child with a disability

at a pr ivate school or fac ility if that ag ency

made a [FAPE] available to the child and par ents elec ted to place the child in such private sc hool or fac ility .”); M.C. ex re l. Mrs. C v. Voluntown Bd. of Educ. , 226 F.3d 60, 66 (2d Cir. 2000) (“ Only

if a c ourt deter

mines that a cha lleng ed I EP was inadequate should it proce ed to the sec ond question.”).
14III. DISCUSS ION

In revie wingan administrative de termination under the I DEA, the Court must addre ss two questions that are aimed at DCPS’s para lleling r esponsibiliti es to comply with the proce dural and substantive re quirements of the I DEA: First, has the State complied with the proce dures set forth in the Act? And second, is the individual i z ed educa tional prog ram develope d throug h the Act’s proce dures reas o nably calc ulated to enable the child to rec eive educational benef its? I f these requir ements are met, the State has complied with the obligations imposed by Congr ess and the c ourts can r equire no more. Rowley , 458 U.S. at 206-07. Ac cording ly , the Court must analy ze (1) whe ther the I EP designe d for N.S. wa s proce durally defic ient, and (2) whether , g iven the contour s of the I EP, N.S. was
rec eivingsufficie nt educational benef its to m eet the r equire ments of a F APE. Howeve r, “proc edura l flaws do not automatica lly rende r an I EP leg ally

defe ctive.” Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 994 ( 1st Cir. 1990) (en ba nc). Rathe r, “a

n I DEA c laim is viable only if . . . proce dural violations aff ecte d the student’s substantive rig hts.” Lesesne e x rel. B.F. v

. District of Columbia , 447 F.3d 828, 834 ( D.C. Cir. 2006). “B efor e an I EP is set aside, there must be some rational basis to believe that proc edura l inadequac ies compromised the pupil’s right to an appr opriate e ducation, ser iously hamper ed the pa

rents’ oppor

tunity to participate in the formulation proc ess, or c aused a deprivation of educa

tion benefits.” Roland M. , 910 F.2d at 994. Her e, Plaintiffs contend that the I EP prepar ed for N.S. in J une 2008 wa s proce durally and substantively

inadequate and that the H ear ing O ffice r improper ly ignor ed or discounte d the evidenc e in the re cord showingthat Def endants de nied N.S. a F APE. Defe ndants disag ree , arguing that the I EP was prope r and that any defe cts in the I EP did not cause substantive har m to N.S. beca use Plaintiffs unilatera lly place d him at the L ab School bef ore the I EP could be put into
15action at Murc h. Def endants c oncede that the L ab School was a proper place ment for N.S., and there fore the only

question befor e the Court is whethe r De fenda nts denied N.S. a F APE by failingto provide an a dequate I EP for the 2008-09 sc hool y ear . Plaintiffs alleg e a numbe r of purported pr ocedur al and substantive de ficienc ies in the J une 2008 I EP. The Court shall review
eac h of these a lleg ed def

iciencie s and then a ddress the a dequac y of the I EP. A. Alleged De

ficiencies in the J

une 2008 IEP 1. Fa ilure to Include Pre sent L evels of Per formanc e Plaintiffs contend that the June 2008 I EP was inadequate bec ause it did not include a statement of N.S.’s pr esent leve ls of aca demic ac hievement a nd perf ormanc e as r equire d by

20 U.S.C. § 1414(d)(1)( A)(i) (I ). Plaintiffs argue that without a stateme nt of prese nt levels of perf ormanc e, it is imposs ible for e ducator s and par ents to assess how much pr og ress the student is ex pecte d to make under the I EP. See Pls.’ Mem. at 15-16. Def endants do not dispute that the I EP failed to include N.S.’s pr esent leve ls of aca demic ac hievement a nd perf ormanc e. See Pls.’ Stmt . ¶ 25; Def

s.’ Resp. Stmt. ¶ 25. The MDT/I EP team meetingnotes also re flec t a minimal 3
Def endants do not dispute this fact in their r esponses to Plaintiffs’ Statement of Material 3 Fa cts. See Def

s.’ Resp. Stmt. ¶ 25. However , Def endants take a diffe rent position in their briefs, claimingthat the I EP did

contain pre sent levels of pe rfor mance and that Plaintiffs’ ver sion of the I EP is mi ssing the pa g e that discusses them. See Def s.’ Mem. at 16 & n.2; Defs.’ Reply at 4 & n.1. This “missing pag e” c an be f ound at pag e 335 of the Administrative Record in De fenda nts’ version of the I EP, and it does in fac t describe some of N.S.’s pre sent levels of pe rfor mance . See AR 335. Plainti ffs c ontend that they rec eived “ a new

copy of the I EP” with this mi ssing pa g e on October 14, 2008, afte r they

inquired about its omission. See Pls.’ Mem. at 15 n.5. Plainti ffs also raise d this iss ue at the he aring
. See 12/5/2008 Tr. at 23-24. Althoug h the Hea ringOffic er did not rule on this issue ex plicitly , his written decision assumes that the I EP did not i nclude prese nt levels of per formanc e and g oes on to consider whether the omission caused a

ny substantive harm to Plaintiffs. See AR 5. Be cause the Court strictly enfor ces L CvR 7(h), the Court shall hold Defenda nts to the positi on they

adopted in their r esponse to Plaintiffs’ Statement of Mater ial Fa cts, which wa s that Defe ndants do not dispute that DCPS failed to include prese nt levels of a cade mic achie vement and pe rfor mance in the I EP, but that such a fa ilure is “immateria l 16discussion of N.S.’s prese nt levels of per formanc e. See AR 212-14. Def endants a rgue, howe ver, that this omi ssion was harmless. The Hea ringOffic er c oncluded that Plaintiffs off ere d no evidenc e that this failure impeded the e x erc ise of any substantive rig ht under the I DEA. 2. Fa ilure to I dentify Supplementary

Aids & Ser

vices Plaintiffs also argue that the I EP was inadequate bec ause it did not identify any supplementary

aids and ser

vices that the sc hool sy stem planned to provide N .S. in the classroom
as re quired by

20 U.S.C. § 1414(d)(1)( A)(IV). See AR 209. Defe ndants do not dispute that the N.S. require s a multitude of supplementary aids and ser

vices in the c lassroom and that the I EP failed to identify

any such aids and se rvice s. See Pls.’ St mt. ¶¶ 29-30. The MDT/I EP team meetingnotes also do not ref lect a de tailed discussion of what suppleme ntary aids and ser

vices would be provide d to N.S. See AR 212-14. Howe ver, D efe ndants argue that the omission was harmless be cause Murch of ficials testified at the due proc ess hea ringthat supplementary

aids and service s could be provide d to N.S. if nece ssary . See Def s.’ Mem. at 16. The Hea

ringOffic er Dec ision does not specifica lly addre ss this deficiency

in the I EP. 3. L ack of

Appropriate Goals a

nd Objectives f

or Written L anguag e Plaintiffs contend that the I EP was inadequate bec ause it did not include g oals and objectives for

N.S. with respec t to his written langua g e skills, an are a that De fenda nts alleg edly knew wa s deficie nt. The I DEA re quires the I EP to include “a state ment of mea surable a nnual g oals, including aca demic and f unctional g oals, desig ned to . . . meet the c hild’s needs that re sult from the c hild’s disabilit y to enable to the c hild to be involved in and make pr og ress in the

in that N.S. never a

vailed himself of this I EP and suffe red no substantive ha rm from a ny minor proce dural de fec t in the I EP.” Def s.’ Resp. Stmt. ¶ 25.

17g ener al educ ation curr iculum . . . [ and] meet ea ch of the child’s other e ducation nee ds that result

from the c hild’s disabilit y .” 20 U.S.C. § 1414(d)(1) (A)( I I ). The MD T/I EP meeting notes do specific ally

addre ss N.S.’s written languag e skills deficits. Def endants c oncede that the I EP failed to include specific g oals and objec tives to address N.S.’s sig nificant de ficits in written languag e. See Pls.’ St mt. ¶ 27. Howeve r, De fenda nts argue that this failure was immateria l beca use N.S. neve r re turned to Murc h for the 2008- 09 school y ear , wher e his I EP could have been modifie d if nec essar y . See Def

s.’ Resp. Stmt. ¶ 27. At the due proce ss hear ing, Ms. Chuahy , N.S.’s specia l educa tion teache r, testified that the r eason f or excluding written languag e objectives wa s that N.S. first neede d to master letter and sound re cog nition before movingon to writing
. See 2/24/09 Tr. at 107-08. The Hea ringOffic er D ecision does not addr ess this issue. 4. L ack of

Sufficiently

Individualiz ed Goa ls Plaintiffs argue that the g oals articulated in the I EP were not sufficiently individualiz ed to meet N.S.’s nee ds. Plainti ffs re ly for this proposition on Michelle Davis, a n educational consultant who testified on Plaintiffs’ be half at the hear ing. Ms. Da vis testified that the J une 2008 I EP’s g oals in rea ding a nd math—which ca ll for N.S., as a se cond g rade r, to master firstg rade rea ding a

nd math standards w ith 80% acc urac y —are too broad to provide me aning ful g uidance
. See 12/5/08 Tr. at 55-56. Ms. Davis noted that these g oals are the same a s those found in the previous y ear ’s I EP, indicating tha t N.S. did not m ake sig nificant progress in mee ting those g oals, which sug g ests they wer e not prope rly

individualiz ed to ensure his development. See id. The He aringOffic er D ecision does not explicitly addre ss this i ssue. 5. L ack of

Speech & L anguag e Servic es Plaintiffs claim that the I EP was inadequate bec ause it fa iled to include spee ch and
18languag e ser vices, whic h Plaintiffs believe we re ne cessa ry g iven N.S.’s difficulties with languag e. Plaintiffs rely

on testimony

g iven at the he aringby

Donna Pavluk, a spe ech a nd languag e ther apy

expert, who claimed that N.S. had difficulties discriminatingand manipulating sounds in way s that make it hard f or him to spell and rea d fluently
. See 12/5/08 Tr. at 114-15. Ms. Pavluk opined that N.S. should receive thera py for his spee ch and la

ng uag e def

icits. See id. at 120. The H ear ing O ffice r dec ision does not ex plicitly addre ss this i ssue. 6. Occ upational Ther apy Service s Plaintiffs claim that the I EP is inadequate be cause it failed to propose oc cupational thera py (“O T”) se rvice s to address N.S.’s motor skills deficit, despite the f act that DCPS was
awa re of N.S.’s need f

or some for

m of OT ser

vices. It is clear that the J une 2008 I EP document itself does not propose a

ny OT for N.S. See AR 333-44. Howeve r, De fenda nts call this is a 4 “nitpickingattack,” see Def s.’ Mem. at 16 n.1, be cause a Prior to Action Notice was issued on the same da

y as the I EP, J une 12, 2008, ca lling for N.S. to be evalua

ted for oc cupational ther apy service s. See AR 215 (Prior to Action Notice) . At the hea ring , Ms. Mitchell testified that althoug h the I EP was finished on June 12, 2008, the OT eva luation was not completed until later in the summer. See 2/24/09 Tr. at 155-56. The OT eva luation was conduc ted on J uly 18, 2008, and re commended that N.S. rece ive 45 minutes per we ek of sc hool-based oc cupational ther apy to addre ss fine motor skills. See AR 229-33 (OT e valuation); 12/5/08 Tr. at 136-40 ( testimony of Christine Chang, oc cupational ther apy expert). Howe ver, the MDT/I EP team did not reconve ne
or re vise N.S.’s I EP to include OT servic es af ter the e valuation. The H earing O ffice r De cision
On one pa g e of the I EP, “Occ upational Ther apy” is written in as a service to be provided 4 to N.S. but is crosse d out. See AR 334. 19does not addre ss this i ssue. 7. Pullout Service s Plaintiffs argue that the June 2008 I EP is inadequate be cause it calls for a ll of N.S.’s specia liz ed instruction to be provide d in the g ener al educ ation classroom setting , which Plaintiffs believe w ill not be adequate to addre ss N.S.’s needs. Plaintiffs contend that the I EP proposed an inclusion prog ram for

N.S. solely

beca use Murc h was be comingan inclusion school and that the decision to move aw ay

from the pullout model ignor ed N.S.’s nee ds for spec ialized inst ruction. Plaintiffs point outthat the I EP itself acknowle dg ed that N.S. “r equire s small structured environment to ac commodate disabilities.” See AR 339. The He aring Offic er r ejec ted Plaintiffs’ claim that place ment at Murch in a n inclusion setting wa s inadequa te to meet N.S.’s nee ds. Ms. Chuahy and Ms. Mitchell both testified that the inclusion prog ram c ould meet N.S.’s nee ds, and the Hea ringOffic er f

ound their testimony

more pe rsuasive. See AR at 5. B. Adequac

y of the June2008 IEP Ultimately , the question befor e the Court is whethe r or not the de fec ts in the J une 2008 I EP are so sig nificant that De fenda nts failed to offe r N.S. a F APE. The He aringOffic er f ound that althoug h the I EP was incomplete, Plaintiffs could not prove they wer e substantively

harme d by the inadequa cies be cause they unilatera lly

place d N.S. at the L ab School bef ore the I EP went into effe ct and ther efor e could not show that the de ficienc ies preve nted DCPS from providing a n appropr iate educ ation at Murch. The He aringOffic er a lso concluded, ba sed on the testimony of 5

The He aringOffic er D ecision only mentions one of the a lleg ed proc edura l deficie ncies: 5 the fa ilure to include pre sent levels of pe rfor mance . See AR at 5. The Court ca nnot determine from the r ecor d whether

the Hea ringOffic er c onsidered the other proc edura l defe cts enumer ated above. 20DCPS witnesses, that plac ement at Murc h in an inclusion setting wa s appropr iate. De fenda nts defe nd the Hea

ringOffic er D ecision, ar g uing that the defe cts in the I EP were mere ly proce dural or tec hnical and that they did not deprive N.S. or his par ents of any substantive rig hts under the I DEA. De fenda

nts, as well as the H ear ing O ffice r, cite c ases suc h as Kruvant v. District of Columbia , 99 F. App’ x 232 (D.C. Cir. 2004), and Lesesne v . District of Columbia , 447 F.3d 828 (D.C. Cir. 2006), for

the proposition that proce dural fla ws will not automatically rende r an I EP leg ally defe ctive. Howe ver, the proce dural e rror s in Kruvant and Lesesnewer e fa ilures to meet statutory deadlines, e rror s that are far less signific ant than fa ilures to include re quired information in an I EP about the servic es to be provide d a disabled student. Def endants c ontend that as longas Murc h was “ willing and a ble” to provide N.S. with appropr iate ser

vices to mee t his educational ne eds, any err ors or de ficienc ies in the I EP are harmless. See Def

s.’ Mem. at 16. How ever , the I DEA re quires that a sc hool district do more than simply

provide ser

vices a dequate to meet the nee ds of disabled students; it require s school districts to invol ve par ents in the cre ation of individualiz ed educ ation prog rams tailore d to addre ss the specific needs of eac h disabled student. See A .I. ex rel. Iapalucc i v. District of Columbia , 402 F. Supp. 2d 152, 163-64 (D .D.C. 2005) (“ Given the importanc e of the I DEA’s proce dural saf

eguards, it should be of no surpr ise that when a school district or other state ag ency violates ‘the pr ocedur al re quirements of the Act by failingto develop an I EP in the manner specifie d, the purposes of the Act a re not ser ved, and the district may

have f ailed to provide a FAPE.’” (quoting W

.G. v. Bd. of Trustees of Target Range Sch. D ist. , 960 F.2d 1479, 1485 ( 9th Cir. 1992))). The I EP must be specific e noug h to allow pare nts to understand wha t service s will be provide d and make a dete rmination about whethe r the propose d place ment is adequate.
21Def endants c oncede that N.S.’s J une 2008 I EP was supposed to be f inal, but the rec ord shows that in many

way s it was eff

ectively incomplete. The I EP was completely missing a statement of N.S.’s pr esent leve ls of perf ormanc e. The I EP failed to desc ribe a ny supplementary aids and ser

vices to be pr ovided N.S., despite the fa ct that Def endants c oncede that such ser vices
wer e nec essar

y . The MDT/I EP team meetingnotes ref lect at most a super ficial discussion of these inade quacie s. And the I EP failed to addr ess N.S.’s nee d for oc cupational ther apy , despite the fa ct that Def

endants we re a

war e of N .S.’s motor skill s deficie ncies. Althoug h the MDT/I EP team did ca ll for an OT evaluation on J une 12, 2008, the r esults of that eva luation could not have been known at the time, and Plaintiffs could not be c erta in that the I EP would ulti mately be amende d to provide the ne cessa ry OT ser vices. De fenda

nts completed an O T eva luation for N.S. in J uly 2008 befor e the star

t of the 2008-09 sc hool y ear but did not reconve ne the MDT/I EP team
or re vise the I EP to reflec t the need f or OT se rvice s. Even more troubling a

re the internal inconsistenc ies in the I EP reg ardingthe nature of service s that would be provided to N.S. On the one hand, the I EP ex pressly reje cts pullout service s, indicating that none of N .S.’s service s would be provided outside the g ener al educ ation setting. See AR 333. On the other ha nd, the I EP also states that service s cannot be provided in the g ener al educ ation classroom be cause N.S. “re quires small structure d environment to
acc ommodate disabilities.” See AR 339. This conflict on the fa ce of the I EP is also reflec ted in the notes fr om the J une 2008 MDT/I EP team meeting . On the one ha nd, the team a cknowledg ed N.S.’s need f

or one- on-one instruc tion, recommendingthree hours of spec ialized inst ruction in
rea ding a nd math and sug g esting that N.S. work with a litera ry coac h. See AR 213-14. On the other ha nd, the meetingnotes show that the discussion was f ocused on the benef

its of inclusion
22with no appar ent discussion about the pullout service s that N.S. had bee n provided a nd whether those wer e a via

ble option for the 2008- 09 school y ear . In her te stimony

at the hea

ring , Principal L ewis testified that she ha d explained to Plaintiffs that in the inclusion setti ng , N.S. would ge t pullout s pecia liz ed instruction so that he could meet his benc hmarks. Ms. Chuahy , the spec ial education teache r, testified that the I EP would have be en implemented by g iving N.S. two hours of specia liz ed instruction inside the g ener al educ ation classroom a nd one hour of

pullout services. Ms. Chuahy also testified about many additional specia liz ed ser vices that would be available to N.S. under the inclusion model outside the g ener al educ ation classroom, such a s time with readingand math spec ialists. Yet all three of De fenda

nts’ witnesses ac knowledg ed that the I EP discussed at the June 2008 meeting did not prescr ibe pullout services a nd that pullout services would have to have been a dded, if
nece ssary , only after

an initial evaluation per iod in the inclusion setting. In essenc e, then, the I EP established only

an initial placeme nt in the inclusion setting, with specia liz ed ser vices to be deter mined at a late r date . The MDT/I EP team meetingnotes do not indicate that N.S.’s pa rents
wer e told that N.S. would be provided w ith specialized service s, and Ms. Mitchell testified that althoug h the possibilit y

of addingpullout sessions for N.S. was discussed, that messag e wa s not clea rly communicated at the meeting . Thus, Plaintiffs did not have an unde rstandingfrom the J une 2008 MDT/I EP meetingor fr om the written I EP document whethe r or not such se rvice s would actua lly

be g iven to N.S. Def endants, a s well as the He aringOffic er, f ault Plaintiffs for plac ing N .S. at the L ab School before g iving him a c hance to learn in the inc lusion setting at Murc h. But pa rents ar e not require d to wait and see a propose d I EP in action befor e conc luding that it is inadequate and
23choosingto enroll their child in an a ppropriate private sc hool. See F orest GroveSch. Dist. v. T.A. , 129 S. Ct . 2484, 2492-93 (2009) (holding that pare nts may be re imbursed for pr ivate-sc hool place ment when a

school district fails to provide a F APE even where the student has neve r
rec eived instruction in the public school); see also Union Sch. D ist. v. Smith , 15 F.3d 1519, 1526 (9th Cir. 1994) (“ [A] school district cannot e scape its obli g ation under the I DEA to off er formally an appr opriate e ducational plac ement by arguing that a disabled c hild’s pare nts expressed unwillingne ss to accept that placeme nt.”) More over, N .S.’s pare nts were justifiably skeptical that a

n inclusion prog ram with no pre scribed pullout servic es would be a dequate to meet N.S.’s educ ation needs when he ha d failed to make signific ant prog ress duringthe pre vious y ear at Murch w ith pullout service s and whe n ever y one agree d that he nee ded spec ialized instruction in a “small structure d environment” for the upc oming year . Both Ms. Chuahy and Principal L ewis testified that the a vailability

of pullout service s was a c ritical re ason why they believed that an inclusion setting would wor k for N.S. Ms. Mitchell also testified that Murc h’s shift away

from a pullout-only

model to the “schoolwide application model” a ffe cted the decision to place N.S. in the ge nera l education setting, which sug g ests that the cha ng e aw ay from pullout services wa s driven by the school’s ne eds rather than N .S.’s. The He aringOffic er’ s rather abbre viated six -pag e dec ision fails to address any of these discrepa ncies. I n finding that the inclusion prog ram at Murch wa s an appr opriate pla ceme nt for N.S., the Hea

ringOffic er r elied almost entirely on Ms. Chuahy ’s testimony
. See AR at 5-6. He noted that “[s] he testified that she believed [N.S.] could benefit from [Murch] and that [Murch]
can a ddress a ll of his needs” a nd that Plaintiffs “offe red no e vidence that could counter her testimony .” AR at 6. Indeed, Ms. Chuahy did testify

that place ment at Murch in the inc lusion
24setting is “a ppropriate beca

use [N.S.] is goingto ge t a lot of support here .” See 2/24/09 Tr. at 87. Howeve r, it is clear

that Ms. Chuahy ’s testimony was ba sed on her

belief that N.S. would rece ive at least one hour of instruction ea ch day outside the g ener al educ ation classroom to addr ess his specific needs, w ith possibl e consultations by rea ding a nd math specia lists. Thus, t he He aring Offic er r elied on evide nce a bout what servic es could have been provided by

Murch instea d of consideringwhat ser

vices we re a ctually

called f or by the I EP or adequately

discussed at the I EP meeting . Be cause the purpose of the due pr ocess he aringis to contest the adequa cy of the I EP and the plac ement, the He aring Offic er should not consider evidenc e about se rvice s not presc ribed by

the I EP or discussed at the I EP meeting
. See ge nerally A.K. ex rel. J.K. v. Alexandria City Sch. Bd. , 484 F.3d 672, 682 ( 4th Cir. 2007) (“I n evaluating whe ther a

school district offer ed a F APE, a cour t ge nera lly

must li mit it s consideration to the terms of the I EP itself.”) The June 2008 I EP failed to ade quately descr ibe the ser

vices that would be provided in an inclusive educ ation setting, a nd the discussion at the I EP meeting as re flec ted in the meeting notes did not adequately

describe those ser

vices e ither. The H ear ing O ffice r’s c onclusion that Murch wa s an appr opriate pla ceme nt relies on testimony that g oes beyond what wa s presc ribed by the I EP. The Court finds that the J une 2008 I EP ga ve Plaintiffs an incomplete picture of the educational service s that might have been pr ovided at Murc h to meet N.S.’s educ ational nee ds and for ced Plaintiffs to make a dec ision about N.S.’s placeme nt based on inade quate a nd contra dictory

information. Plaintiffs cannot be penalized for r efusingto rely on a hope that appropr iate ser

vices would be provided a fter a n initial test period. One of the purposes of the I EP is to ensure that the ser vices provide d are formalized in a wr itten document that ca n be
25assessed by pare nts and cha lleng ed if ne cessa ry . See A lfono v. District of Columbia , 422 F. Supp. 2d 1, 6 (D.D.C. 2006) (“ [A] written, complete I EP is im portant to serve a par ent’s intere st in rec eivingfull appra isal of the educ ational plan for her c hild, allowing a

pare nt to both moni tor her c hild’s prog ress a

nd deter mine if any

chang e to the program is nec essar y .”) The ref

ore, the Court concludes that the J une 12, 2008, I EP was inadequate and that De fenda nts failed to offe r N.S. a FA PE. The Hea

ringOffic er’ s decision shall be re verse d. 6 Be cause Def

endants c oncede that the L ab School was a n appropr iate plac ement for N.S., Plaintiffs are e ntitled to reimbursement for the 2008-09 school year . See F lorenceCounty , 510 U.S. at 15. Once a Court finds that a public sc hool district has failed to off er a FAPE, the Court is authorized to “g rant such r elief a s the court de termines is appropr iate.” 20 U .S.C. § 1415(i)(2) (C)(iii). “Under this provision, equitable c onsiderations ar e re levant in fa shioning relief , and the Court enjoy s broad discr etion in so doing.” FlorenceCounty , 510 U.S. at 16 (interna l quotation marks and citations omitted). The I DEA a lso authorizes the awa rd of attorney s’ fe es to a pre vailing pa rty
. See 20 U.S.C. § 1415(i)(3)(B ). The Court sha ll require the parties to file br iefs re g ardingequitable r elief a nd attorney s’ fe es. C. Motion for Leave to Suppleme nt the Rec ord On Marc h 25, 2010, Plaintiffs filed a Motion for L eave to Supplement the Record. In the motion, P laintiffs ask the Court to consider the Marc h 13, 2010, Hea ringOffic er’ s Deter

mination

In so ruling, the Court does not disturb the Hea ringOffic er’ s findings r eg ardingthe 6 cre dibilit y

of the witnesse s who g ave te stimony at the due pr ocess he aring . The He aring Offic er’ s err or wa s not that he improperly cre dited or discre dited witness testimony but that he appar ently

considere d testimony

reg ardingservice s that were not called f or by the I EP. 26that DCPS had fa iled to provide N.S. with a F APE for the 2009- 10 school y ear . Plaintiffs 7 contend that this rec ent dec ision confirms the fa ctual and le g al insufficie ncies in the HO D that is under r eview in this ac tion. Defe ndants oppose the motion, arguing that the Marc h 2010 HOD
nece ssarily

considere d fac ts that were not before Hea ringOffic er L atif Doman when he r uled in Marc h 2009. In concludingabove tha t the J une 2008 I EP was inadequate and that the Ma rch 2009 HOD should be r ever sed, the Court does not re ly on the Marc h 2010 HOD. Ac cording ly , Plaintiffs’ motion is unnece ssary and shall be D ENI ED. IV. CONCLUSION For the re asons explained above, the Court shall GRANT Plaintiffs’ Motion for Summary J udg ment, DENY D efe ndants’ Motion for Summary J udg ment, and DEN Y Plaintiffs’ Motion for L eave to Supplement the Record. The Court shall order the parties to file br iefs re g ardingthe
awa rd of e quitable re lief. An a ppropriate Orde r ac companies this Memora ndum Opinion.

Date: May

4, 2010 /s/ COL L EEN KOL L AR-KOTELL Y United States District J udg e

Plaintiffs also ask the Court to review two rec ent dec isions by

other judg es in this 7 District. 27