                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


                                    )
SHANISE TAYLOR,                     )
                                    )
                  Plaintiff,        )
                                    ) Civil Action No. 09-175 (EGS)
                  v.                )
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
                  Defendant.        )
                                    )


                            MEMORANDUM OPINION

     Plaintiff Shanise Taylor seeks review of an administrative

decision denying her request for relief from the District of

Columbia Public Schools (“DCPS”) for alleged violations of the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§§ 1400 et seq., by failing to provide her son with a free

appropriate public education (“FAPE”).      Pending before the Court

are cross-motions for summary judgment.      Upon consideration of

the motions, the responses and replies thereto, the applicable

law, the administrative record, the additional evidence submitted

by plaintiff, and for the reasons stated below, the Court DENIES

without prejudice the parties’ cross-motions for summary judgment

and REMANDS this action to the hearing officer for additional

findings of fact and conclusions of law, as well as a

determination of what, if any, relief plaintiff is entitled to

receive on behalf of her son.
I.     BACKGROUND

       Ms. Taylor is the parent of K.T., an eleven year-old boy who

attended Amidon Elementary School (“Amidon”) from the fall of

2004 - when K.T. was in kindergarten - through the 2008-2009

school year.    See Pl.’s Statement of Facts Not in Dispute (“Pl.’s

SMF”) ¶ 1; Def.’s Statement of Facts Not in Dispute (“Def.’s

SMF”) ¶ 1.   While at Amidon, K.T. had several behavior-related

incidents, some of which resulted in K.T.’s removal from school.

Pl.’s SMF ¶¶ 2, 5.

       As a result of these incidents, Ms. Taylor requested that

K.T. be evaluated by DCPS for special education services.      See

Pl.’s SMF ¶ 7 (explaining that plaintiff had begun requesting

special education evaluations for K.T. in 2006).     On December 20,

2007, a Multidisciplinary Team (“MDT”) met for the first time to

develop a Student Evaluation Plan (“SEP”) for K.T.     Def.’s SMF

¶ 2.   The MDT recommended, among other things, that K.T. receive

a comprehensive clinical evaluation.     Def.’s SMF ¶ 2; see also

Administrative Record (“AR”) 6 ¶ 2.     Plaintiff, who participated

in the December 20, 2007 MDT meeting, signed a “Consent for

Evaluation” form.    Def.’s SMF ¶ 3.

       DCPS completed its psychological evaluation of K.T. on April

4, 2008.   Pl.’s SMF ¶ 9.   Its examiner found that K.T. did not

qualify for special education services as a child with an

emotional or learning disability.      See Pl.’s Ex. 1 (“[T]he view


                                  2
of this examiner is that [K.T.] does not meet the legal criteria

as detailed by the IDEA and Chapter 30 as an emotionally

disturbed child. . . . [K.T.] does not meet the disability

criteria as a Learning Disabled student.”).   On April 18, 2008,

the MDT met to review the psychological evaluation and to

determine whether K.T. was eligible for special education

services.   See Pl.’s SMF ¶ 11; Def.’s SMF ¶ 5.   The meeting was

subsequently adjourned, however, after the MDT determined that it

needed additional information.   See Pl.’s SMF ¶¶ 11-12; Def.’s

SMF ¶ 5; see also AR 58-59 (“Meeting was adjourned before

eligibility was discussed. . . . MDT determined that additional

information and/or report are required to be submitted for the

purpose of determining functioning in the school setting.    This

information includes, suspension reports, office referral,

any/all pertinent reports from community connection, SST

intervention strategies as well as all educational data reports.

Ms. Taylor to provide school with contact information for

personnel at community connection[.]”).1




     1
          While not material to the Court’s decision, the parties
dispute what additional information was needed by the MDT in
order to determine K.T.’s eligibility for special education
services. In particular, plaintiff contends - over the objection
of DCPS - that the April 18, 2008 MDT meeting was adjourned
because “DCPS determined that the psychological evaluation
required amendment[.]” Pl.’s SMF ¶ 12. Having carefully
reviewed the administrative record, the Court finds no support
for this assertion.

                                 3
       On June 5, 2008, plaintiff notified DCPS that she would not

accept its April 4, 2008 psychological evaluation and requested

authorization to obtain an independent psychological evaluation

pursuant to 34 C.F.R. § 300.502.2        Pl.’s SMF ¶ 16; Def.’s SMF

¶ 6.       After receiving no response from DCPS regarding her

request, plaintiff filed an IDEA due process complaint on

September 17, 2008.3      Pl.’s SMF ¶ 18.

       Plaintiff’s due process complaint alleged, among other

things, that DCPS had failed to respond to her request for

authorization to obtain an independent evaluation at public

expense.      Def.’s SMF ¶ 16; see generally AR 46.    A hearing on the

administrative complaint was scheduled for October 22, 2008.



       2
          Section 300.502 provides, in relevant part, that “[t]he
parents of a child with a disability have the right under this
part to obtain an independent educational evaluation of the
child.” 34 C.F.R. § 300.502(a)(1). It further states that: “If
a parent requests an independent educational evaluation at public
expense, the public agency must, without unnecessary delay,
either– (i) File a due process complaint to request a hearing to
show that its evaluation is appropriate; or (ii) Ensure that an
independent educational evaluation is provided at public expense
. . . .” 34 C.F.R. § 300.502(b)(2).
       3
          Although DCPS had not specifically responded to
plaintiff’s request for an independent evaluation as of September
17, 2008, on September 15, 2008 - two days prior to the filing of
plaintiff’s due process complaint - DCPS sent a letter to
plaintiff’s counsel attempting to schedule a meeting with the
MDT. Def.’s SMF ¶ 7. In its letter, DCPS proposed three
alternative dates for an MDT meeting. Def.’s SMF ¶ 7. Each of
these dates were rejected by plaintiff’s counsel, as were the
subsequent dates proposed by DCPS. See Def.’s SMF ¶¶ 7-14
(detailing DCPS’s numerous attempts to schedule an MDT meeting in
September-October 2008).

                                     4
Def.’s SMF ¶ 17.   A week prior to the hearing, however, on

October 15, 2008, DCPS sent plaintiff a letter authorizing her to

obtain an independent evaluation for K.T.     Pl.’s SMF ¶ 19; Def.’s

SMF ¶ 18.   The due process hearing was nevertheless held on

October 22, 2008, and the hearing officer issued her decision on

October 31, 2008 (the “October 2008 HOD”).      See generally AR 4-

13.

      In her decision, the hearing officer found, inter alia, that

DCPS violated a procedural obligation of the IDEA by failing to

timely respond to plaintiff’s request for an independent

evaluation of K.T.      See AR 10 (“The time elapse between the

Petitioner’s request [for an independent evaluation], and the

time DCPS responded was more than 4 months.     The DCPS has

provided no justification for the delay. . . . The DCPS should

have authorized the evaluation or file [sic] a complaint

defending the existing evaluation without delay.     The Hearing

Officer determines the DCPS has violated a procedural

obligation.”).   The hearing officer also found, however, that

K.T. “was not denied a FAPE because of the alleged procedural

inadequacy.”   AR 11.    Specifically, the hearing officer

determined that “[t]he Student did not prove that a failure to

get a psychological reevaluation denied the Student’s right to a

FAPE or deprive [sic] him of educational benefit.”     AR 11; see

also AR 11 (“While the Petitioner has established a procedural


                                    5
violation of the IDEA, the Petitioner has not established that

that violation caused harm to the Student that the IDEA is

intended to address.”).   The hearing officer then dismissed

plaintiff’s due process complaint.      AR 13.

      Following dismissal of her administrative action, plaintiff

filed suit in this Court alleging violations of the IDEA and

Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794.4      On May

28, 2010, plaintiff filed a motion for summary judgment seeking

reversal of the October 2008 HOD and a declaration that DCPS

denied K.T. a FAPE “by failing to provide for an independent

evaluation of him for four months.”      Pl.’s Mot. for Summary

Judgment (“Pl.’s SJ Mot.”) at 2.       On July 16, 2010, the District

filed a cross-motion for summary judgment asking the Court to

affirm the October 2008 HOD.   See Def.’s Mot. for Summary

Judgment (“Def.’s SJ Mot.”).   These motions are now ripe for

determination by the Court.

II.   STATUTORY FRAMEWORK AND LEGAL STANDARD

      A.   The IDEA

      The IDEA was enacted to “ensure that all children with

disabilities have available to them a free appropriate public

education that emphasizes special education and related services

designed to meet their unique needs and prepare them for further

      4
          Plaintiff’s Rehabilitation Act claim was dismissed by
this Court on February 2, 2010. See Taylor v. District of
Columbia, 683 F. Supp. 2d 20 (D.D.C. 2010).

                                   6
education, employment, and independent living.”        20 U.S.C.

§ 1400(d)(1)(A).   It requires all states and the District of

Columbia to provide resident children with disabilities a FAPE

designed to meet their unique needs.         Id. § 1412(a)(1).

     The IDEA attempts to guarantee children with disabilities a

FAPE by requiring schools and other local educational agencies to

adopt procedures to evaluate children with suspected disabilities

and to ensure appropriate educational placement of disabled

students.    See id. §§ 1413-1414.       In addition, schools and school

districts must develop comprehensive plans for meeting the

special educational needs of individual disabled students.             See

id. § 1414(d)(2)(A).

     A parent who believes that his or her child has been denied

a FAPE is entitled to an impartial due process hearing.          Id.

§ 1415(f)(1)(A).   Any party aggrieved by the hearing officer’s

determination may bring a civil action challenging the decision.

Id. § 1415(i)(2)(A).

     B.     Standard of Review

     In a district court’s review of a hearing officer’s

determination, the burden of proof is always on the party

challenging the administrative determination, who must “at least

take on the burden of persuading the court that the hearing

officer was wrong.”    Reid v. District of Columbia, 401 F.3d 516,

521 (D.C. Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884,


                                     7
887 (D.C. Cir. 1988)).   In conducting its review, the court

“(i) shall receive the records of the administrative proceedings;

(ii) shall hear additional evidence at the request of a party;

and (iii) basing its decision on the preponderance of the

evidence, shall grant such relief as [it] determines is

appropriate.”   20 U.S.C. § 1415(i)(2)(c).   A 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. v. Howard Road Acad., 585

F. Supp. 2d 56, 63-64 (D.D.C. 2008) (quoting Bd. of Educ. v.

Rowley, 458 U.S. 176, 206 (1982)).   Less deference, however, is

to be accorded to a hearing officer’s decision than would be the

case at a conventional administrative proceeding.    See Reid, 401

F.3d at 521 (explaining that the court is “obligated by IDEA to

ensure that relief set forth in the administrative award was

‘appropriate’”).   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).

III. ANALYSIS

     In support of her request for summary judgment, plaintiff

first argues that the hearing officer erred in determining that

K.T. was not denied a FAPE by DCPS’s failure to timely respond to

her request for an independent evaluation, explaining that “[t]he


                                 8
failure to provide for an independent evaluation is a substantive

violation of the IDEA.”   Pl.’s SJ Mot. at 9.   In support of this

assertion, plaintiff relies on Harris v. District of Columbia,

561 F. Supp. 2d 63 (D.D.C. 2008).     In Harris, the court found

that DCPS’s “failure to act on a request for an independent

evaluation” for a child who had “languished for over two years

with an [individualized education program] that may not [have

been] sufficiently tailored to her special needs” was more than

“a mere procedural inadequacy.”     Id. at 69; see also id.

(discussing “[t]he intransigence of DCPS as exhibited in its

failure to respond quickly to plaintiff’s simple request [for an

independent evaluation]”).   Based solely on this statement in

Harris, plaintiff asks the Court to hold that DCPS’s failure to

timely respond to a request for an independent evaluation “is a

per se denial of FAPE, [where] the question of actual harm need

never be asked.”   Pl.’s Combined Opp’n & Reply at 3.   This Court

must decline plaintiff’s request.

     “A failure to timely reevaluate is at base a procedural

violation of IDEA.”    Smith v. District of Columbia, No. 08-2216,

2010 U.S. Dist. LEXIS 125754, at *9 (D.D.C. Nov. 30, 2010)

(citing cases).    Procedural violations of the IDEA do not

“‘inexorably lead a court to find a child was denied FAPE.’”       Id.

(quoting Schoenbach v. District of Columbia, 309 F. Supp. 2d 71,

78 (D.D.C. 2004)).    Instead, as plaintiff’s counsel is well


                                  9
aware, “an IDEA claim is viable only if [DCPS’s] procedural

violations affected the student’s substantive rights.”     Lesesne

v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006)

(citing cases).5   The Court, therefore, finds that the hearing

officer properly determined that plaintiff was required to

demonstrate that K.T. suffered an “educational harm” in order to

establish that he was denied a FAPE by DCPS’s procedural

violation.    See AR 116; see also Lesesne, 447 F.3d at 834

(rejecting petitioner’s argument that her child was “‘per se

harmed’ by DCPS’s alleged failure to meet some of IDEA’s

procedural deadlines”).

     Plaintiff more persuasively argues, however, that the

October 2008 HOD should be reversed because K.T.’s substantive

rights under the IDEA were, in fact, violated by DCPS’s failure

to timely respond to plaintiff’s request for an independent

evaluation.    In support of this argument, plaintiff asks the

Court to consider several pieces of new evidence.    Specifically,



     5
          Plaintiff’s counsel in this action was counsel of
record in the Lesesne action.
     6
          Indeed, the hearing officer correctly recognized that
“‘in matters alleging a procedural violation, a hearing officer
may find that a child did not receive a [FAPE] only if the
procedural inadequacies — i. impeded the child’s right to a
[FAPE]; ii. significantly impeded the parent’s opportunity to
participate in the decision making process regarding the
provisions of a FAPE to the parent’s child; or iii. caused a
deprivation of educational benefits.’” AR 10-11 (quoting 34
C.F.R. § 300.513(a)).

                                 10
plaintiff asks the Court to consider that on December 3, 2008 –

more than two months after the hearing officer issued her

determination – an independent psychological evaluation of K.T.

was produced, which recommended qualification of K.T. as a child

with an emotional disturbance and attention deficit hyperactivity

disorder (“ADHD”).    See Pl.’s Ex. 2 at 14 (diagnosing K.T. with

ADHD, intermittent explosive behavior, and conduct disorder -

childhood onset).    Plaintiff also asks the Court to consider that

during an MDT-eligibility meeting held on December 12, 2008, the

MDT “agreed” with plaintiff’s independent psychological

evaluation and found that K.T. (i) was “eligible for special

education services as a student with emotional disturbance/other

health impairment,” and (ii) was in need of a “full-time

therapeutic setting.”   Pl.’s Ex. 3 at 4, 6; Pl.’s SMF ¶ 23.

      Plaintiff argues that this evidence establishes that DCPS’s

delay in failing to timely authorize a reevaluation of K.T.

“caused a deprivation of educational benefits.”   Pl.’s SJ Mot. at

11.   Plaintiff asserts that: “Had DCPS provided its authorization

letter in June, when it was requested, instead of waiting four

months until October, . . . K.T. would have been evaluated four

months earlier, would have been found eligible four months

earlier, and would have received his [individualized education

program] four months earlier.”   Pl.’s SJ Mot. at 12.




                                 11
     Defendant, in turn, contends that the Court should not

consider this new evidence.   Defendant argues that “it would be

fundamentally unfair for this Court to overturn the [October 2008

HOD] based on Plaintiff’s after-acquired evidence that she never

presented to the hearing officer.”   See Def.’s Reply at 3; see

also Def.’s SJ Mot. at 12-13 (arguing that “plaintiff is

attempting to circumvent established law” by “describ[ing] events

that occurred after the issuance of the October 31, 2008 HOD” in

support of her position that the hearing officer erred in

determining that there was no FAPE violation).   Instead,

defendant urges the Court to affirm the October 2008 HOD based

solely upon the evidence presented by plaintiff at the

administrative hearing.   See Def.’s SJ Mot. at 12-13 (arguing

that the hearing officer correctly found that the evidence

presented during the administrative hearing did not prove a

deprivation of educational benefits).

     After careful consideration of the parties’ arguments, the

Court concludes that it is most appropriate to remand this case

to the hearing officer for consideration of plaintiff’s new

evidence.   As a threshold matter, the Court finds defendant’s

argument that “plaintiff should be foreclosed from presenting

evidence and arguments that she did not raise before the hearing




                                12
officer” unavailing7 in light of 20 U.S.C. § 1415(i)(2)(C)(ii).8

Def.’s Reply at 1.   Nevertheless, given the facts of this case,

and, in particular, the significant events that occurred after

the hearing officer issued her decision, the Court is persuaded

that it would be unfair to overturn the hearing officer’s

determination on grounds that she had no opportunity to consider

or evaluate.   The Court therefore concludes that the hearing

officer should be permitted, in the first instance, to conduct

the “fact-specific exercise of discretion” anticipated by the



     7
          The Court is also unpersuaded by defendant’s argument
that plaintiff was required to file a separate motion in order
for the Court to consider plaintiff’s new evidence. See Def.’s
SJ Mot. at 13; Def.’s Reply at 1-2. Defendant has not directed
the Court to any statute, regulation, or case law requiring that
a separate motion be filed with the Court, nor is the Court aware
of any such authority. The Court, therefore, is unwilling to
impose this additional procedural requirement on plaintiff, and
will consider the new evidence that plaintiff has proffered.
     8
          20 U.S.C. § 1415(i)(2)(C)(ii) provides that in a civil
action appealing the decision of a hearing officer, the court
“shall hear additional evidence at the request of a party.”
While there is a conflict among the Courts of Appeals regarding
the precise meaning of § 1415(i)(2)(C)(ii)’s requirement that
district courts hear additional evidence, appellate courts have
generally construed the statute to provide district courts with
the discretion to determine whether or not to hear such evidence.
See, e.g., Konkel v. Elmbrook Sch. Dist., 348 F. Supp. 2d 1018,
1020-22 (E.D. Wis. 2004) (discussing the differing standards
applied by various courts in determining whether to receive
additional evidence in an IDEA action). In addition, although
the D.C. Circuit has not expressly addressed the issue, it has
generally recognized a district court’s discretion to decide
whether to hear additional evidence or remand an action to a
hearing officer for additional proceedings. See, e.g., Kingsmore
v. District of Columbia, 466 F.3d 118, 120 (D.C. Cir. 2006);
Branham v. District of Columbia, 427 F.3d 7, 13 (D.C. Cir. 2005).

                                13
IDEA.       Reid, 401 F.3d at 536; see also Henry v. District of

Columbia, No. 09-1626, 2010 U.S. Dist. LEXIS 120336, at *11

(D.D.C. Nov. 10, 2010) (“While the Court has the authority to

undertake its own review of the record . . . and issue judgment

in the case, the district court may determine that the

‘appropriate’ relief is a remand to the hearing officer for

further proceedings[.]” (internal quotation marks omitted)).

Accordingly, this action is hereby REMANDED to the hearing

officer for consideration of plaintiff’s newly-proffered

evidence, and for further findings of fact and conclusions of law

regarding whether K.T. was denied a FAPE as a result of DCPS’s

procedural violation and, if so, the amount of compensatory

education to which K.T. is entitled.9

        9
          Plaintiff also argues that the October 2008 HOD should
be reversed because “Ms. Taylor’s ability to participate in the
decision-making process” was impeded by the District’s failure to
timely authorize an independent evaluation. See Pl.’s SJ Mot. at
10-11 (citing 20 U.S.C. § 1415(f)(3)(E)(ii)(II) for the
proposition that a procedural violation constitutes a denial of
FAPE when it “significantly impede[s] the parent’s opportunity to
participate in the decision-making process regarding the
provision of a FAPE”). The Court finds that the hearing officer
did not err in reaching a contrary determination based on the
record that was before her. See AR 7, ¶ 8 (“Numerous attempts
were made to include the Parent in an eligibility meeting; six
dates were offered. However, parent’s counsel and/or advocate
were not available.”); see also Def.’s SMF ¶¶ 8-14. Instead, to
the extent that this argument has any possible merit it is
dependent upon the consideration of plaintiff’s newly proffered
evidence. See Pl.’s Combined Opp’n & Reply at 4-5 (“[An] [MDT]
meeting would have done the Plaintiff little good in the absence
of an adequate expert evaluation. The existing evaluation had
specifically found K.T. ineligible [for special education
services]. Only after the final evaluation was done did DCPS

                                    14
IV.   CONCLUSION

      For the reasons set forth above, the Court REMANDS this

action to the hearing officer for additional fact-finding and

further consideration on the merits.   The parties’ motions for

summary judgment are therefore DENIED without prejudice.   A

separate Order accompanies this Memorandum Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           March 16, 2011




develop an [individualized education program] for K.T. and
finally begin to address his needs.” (internal citations
omitted)). Because the Court concludes that remand for
consideration of plaintiff’s newly proffered evidence is
appropriate, the Court need not further discuss the merits of
plaintiff’s argument on this issue.

                                15
