                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                   )
D.S.,                              )
                                   )
             Plaintiff,            )
                                   ) Civil Action No. 09-599 (EGS)
             v.                    )
                                   )
DISTRICT OF COLUMBIA,              )
                                   )
             Defendant.            )
                                   )


                          MEMORANDUM OPINION

        Plaintiff D.S. 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 Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., by

failing to provide her 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 arguments made by counsel during the motions hearing held on

March 25, 2010, and for the reasons stated below, the Court finds

that the hearing officer’s dismissal of D.S.’s October 2008 due

process complaint for lack of jurisdiction was erroneous and is

hereby REVERSED.     Accordingly, plaintiff’s motion for summary

judgment is GRANTED, and defendant’s motion for summary judgment

is DENIED.     Because the hearing officer failed to address or make
findings on the merits of the October 2008 due process complaint,

the Court concludes that it is necessary to REMAND the case to

the hearing officer for a determination as to whether there were

any IDEA violations and, if so, the amount of compensatory

education to which D.S. is entitled.

I.   BACKGROUND

     A. Plaintiff’s Attendance at Cardozo

     Plaintiff, D.S., is a resident of the District of Columbia,

and, at the time this action was filed, a student at Benjamin

Cardozo Senior High School (“Cardozo”).1    D.S. qualifies for

special education and related services under the IDEA as a

“learning disabled” child.   Def.’s Statement of Material Facts

(“Def.’s SMF”) ¶ 1.   On February 2, 2007, during the 2006-2007

school year, a Multi-Disciplinary Team (“MDT”) met and developed

an individual education program (“IEP”) for D.S. (the “February

2007 IEP”).   See infra Section II.A (discussing IEPs under the

IDEA).   Plaintiff’s February 2007 IEP specified that she was to

receive 21 hours of specialized education, and was to be placed

in a combination general education and resource classroom setting

at Cardozo.   Def.’s SMF ¶ 2.



1
     The Court was informed during the motions hearing held on
March 25, 2010, that D.S. has since been placed at the High Road
Academy, a specialized alternative education school for high
school–aged students facing broad-based learning disabilities, at
the District’s expense.

                                 2
     Although D.S. continued her education at Cardozo during the

2007-2008 school year, her attendance dropped considerably.

Def.’s SMF ¶ 3.   Indeed, during the fall semester of 2007-2008,

plaintiff had 118 unexcused absences.    Def.’s SMF ¶ 3.   D.S. was

often observed by her teachers “wander[ing] the halls” and

“hiding” in the building.     See Pl.’s SMF ¶ 2; Administrative

Hearing Transcript (“Hearing Tr.”) at 23-24.    In January 2008, an

MDT met to review and update plaintiff’s February 2007 IEP.

Def.’s SMF ¶ 4.   Due to plaintiff’s poor attendance during the

Fall 2007 semester of school, however, the MDT found no evidence

that D.S. had mastered any of the goals set forth in her February

2007 IEP.   Def.’s SMF ¶ 6.   The MDT therefore decided that

plaintiff’s academic goals in her January 2008 IEP should remain

the same.   Def.’s SMF ¶ 6.

     On May 2, 2008, concerned by plaintiff’s attendance problems

and poor grades, plaintiff’s mother filed an administrative due

process complaint alleging that DCPS failed to re-evaluate

plaintiff, failed to review plaintiff’s IEP, and failed to turn

over plaintiff’s student records (“May 2008 due process

complaint”).   Def.’s SMF ¶ 10.   On May 28, 2008, a hearing

officer issued a decision (the “May 2008 HOD”), which ordered

DCPS to fund independent evaluations for plaintiff in several

areas, including: a psychological evaluation, a speech and

language evaluation, and a vision screening.    Def.’s SMF ¶ 11;


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Pl.’s SMF ¶ 5.   The hearing officer also ordered DPCS to convene

an MDT/IEP meeting “no later than one month prior to the start of

the 2008/2009 school year” to review the evaluations, revise

plaintiff’s IEP as necessary, and discuss and determine

compensatory education.   Pl.’s SMF ¶ 5.

      Plaintiff received a psycho-educational evaluation and a

speech and language evaluation in July 2008.   Def.’s SMF ¶¶ 13-

14.   These evaluations revealed that D.S. was performing almost

eight years below in the areas of Broad Reading, Broad Math, and

Broad Written Language.   Pl.’s SMF ¶ 9.   The evaluations also

found a mild clinical risk in the areas of anxiety, depression,

aggression, and attention deficit hyperactivity disorder.     Pl.’s

SMF ¶ 9.

      After receiving these evaluations, an MDT meeting was

convened on September 2, 2008 to review and revise D.S.’s IEP.

Def.’s SMF ¶ 15.   During this meeting, the MDT (i) revised

plaintiff’s IEP to include counseling services; (ii) developed a

compensatory education plan for plaintiff; and (iii) recommended

that plaintiff receive a Functional Behavioral Assessment.

Def.’s SMF ¶¶ 15-16.   The Team rejected, however, plaintiff’s

mother’s request for an independent clinical psychological

evaluation of D.S.

      During the September MDT/IEP meeting, plaintiff’s mother

also shared her reservations about allowing D.S. to return to


                                 4
Cardozo, informing the MDT that she had not yet enrolled her

daughter for the 2008-2009 school year.     See Pl.’s SMF ¶ 15;

Def.’s SMF ¶ 20.   Nevertheless, in mid-October, plaintiff’s

mother re-enrolled D.S. at Cardozo.   Def.’s SMF ¶ 22.       D.S.,

however, continued to avoid attending class, and routinely

wandered the hallways of the school and hid from her teachers.

See Def.’s SMF ¶¶ 25-27; see also Hearing Tr. at 48 (discussing

how D.S. “manage[d] to somehow be in the school and actually not

go to class”).

     B.   Plaintiff’s Due Process Complaint & Administrative
          Hearing

     On October 7, 2008, one week prior to formally enrolling at

Cardozo, plaintiff’s mother filed a second administrative due

process complaint (“October 2008 due process complaint”)

challenging the September 2008 IEP.   Specifically, plaintiff’s

mother alleged that DCPS had failed to: (i) develop an

appropriate IEP for D.S.; (ii) place D.S. in a proper school;

(iii) properly implement the D.S.’s IEP; and (iv) evaluate D.S.

in all areas of suspected disability.     See Administrative Record

(“AR”) 12-20.    The October 2008 due process complaint sought,

inter alia, reasonable compensatory education, placement at an

appropriate school, an independent clinical psychological

evaluation, and revision of D.S.’s IEP.     See AR 17-18.2
     2
          During the motions hearing held on March 25, 2010, the
Court was also informed that through the diligent efforts of
plaintiff’s mother, D.S. has now received the majority of relief

                                  5
     A hearing on the October 2008 due process complaint was held

on November 10, 2008, during which plaintiff’s mother and an

educational advocate testified on D.S.’s behalf.       See generally

Hearing Tr.   A hearing officer’s decision was issued on November

20, 2008 (the “November 2008 HOD”), which dismissed the October

2008 due process complaint with prejudice.       AR 2-7.   In her

dismissal order, the hearing officer found that she “lacked

jurisdiction” over the due process complaint because D.S. was not

enrolled in any District of Columbia school at the time her

complaint was filed.     AR 6.   The Hearing Officer also found that

D.S.’s lack of enrollment made it “physically impossible for

Cardozo to revise [plaintiff’s] IEP, implement her IEP, evaluate

her in any area of suspected ability, or determine appropriate

placement.”   AR 6.    Finally, the hearing officer concluded that

the due process complaint was “frivolous” because “[c]ounsel knew

or should have known that th[e] Hearing Officer would have no

jurisdiction.”   AR at 6.

     Less than one week after the decision was rendered, on

November 26, 2008, D.S.’s mother filed a motion for

reconsideration.      See AR 176-187.   The hearing officer, however,

did not respond to the motion.      See Pl.’s Compl. ¶ 21 (“Hearing

requested in her October 2008 due process complaint.
Specifically, (i) an independent clinical psychological
evaluation has been performed; (ii) plaintiff’s IEP has been
revised; and (iii) plaintiff received an appropriate educational
placement at High Road Academy. The only relief still requested
by plaintiff, therefore, is compensatory education.

                                    6
Officer Raskin failed to respond to the parent’s motion for

reconsideration within the allotted thirty-day time line and as a

result the parent brings the instant action.”).

      C.   This Action

      Accordingly, on March 31, 2009, D.S. filed suit in this

Court alleging violations of the IDEA.       Plaintiff’s three-count

complaint asks the Court to “reverse the November 2008 HOD” and

find that “DCPS owes an affirmative duty to provide FAPE despite

enrollment status.”      See Compl. at 9.   On July 24, 2009,

plaintiff filed a motion for summary judgment seeking reversal of

the November 2008 HOD; on August 21, 2009, the District filed a

cross-motion for summary judgment asking the Court to affirm the

November 2008 HOD.    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

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).


                                    7
     The IDEA attempts to guarantee children with disabilities a

FAPE by requiring states and the District of Columbia to

institute a variety of detailed procedures.    “‘[T]he primary

vehicle for implementing’” the goals of the statute “‘is the

[IEP], which the [IDEA] mandates for each child.’”     Harris v.

District of Columbia, 561 F. Supp. 2d 63, 65 (D.D.C. 2008)

(citing Honig v. Doe, 484 U.S. 305, 311-12 (1988)).     An IEP is a

written document that describes the impact of the child’s

disabilities, annual “academic and functional” goals for the

child, and the forms of individualized education and support that

will be provided to the child in view of the child’s disabilities

and in order to aid the child’s developmental and academic

progress.   See 20 U.S.C. § 1414(d)(1)(A).    Because the IEP must

be “tailored to the unique needs” of each child, Bd. of Educ. v.

Rowley, 458 U.S. 176, 181 (1982), it must be regularly revised in

response to new information regarding the child's performance,

behavior, and disabilities.   See 20 U.S.C. §§ 1414(b)-(c).

Furthermore, the school district must take care to generate that

new information as needed, through assessments and observations

of the child.   See id. §§ 1414(c)(1)-(2).    To be sufficient to

confer a FAPE upon a given child, an IEP must be “reasonably

calculated to enable the child to receive educational benefits.”

Rowley, 458 U.S. at 207.




                                 8
     B.   Standard of Review

     Under the IDEA, a party aggrieved by a hearing officer’s

decision may bring a civil action challenging it in state or

federal court.   20 U.S.C. § 1415(i)(2)(A).   A 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.”      Id.

§ 1415(i)(2)(c).    If neither party introduces additional

evidence, a motion for summary judgment acts as a motion for

judgment based on the evidence in the record.     Brown ex rel. E.M.

v. District of Columbia, 568 F. Supp. 2d 44, 50 (D.D.C. 2008).

The party challenging the administrative decision carries the

burden of “persuading the court that the hearing officer was

wrong.” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516,

521 (D.C. Cir. 2005) (internal quotation marks omitted).     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 Rowley,

458 U.S. at 206).

     Less deference, however, is to be accorded to the hearing

officer’s decision than would be the case at a conventional

administrative proceeding.     Reid, 401 F.3d at 521.   Indeed, the


                                   9
Court is “obligated by IDEA to ensure that relief set forth in

the administrative award was ‘appropriate’[.]”    Id.    The Court,

therefore, may not simply “rely on the hearing officer’s exercise

of discretion.”   Id.   “Where the administrative record lacks

pertinent findings and where neither party requested

consideration of additional evidence, the [Court] may determine

that the appropriate relief is a remand to the hearing officer

for further proceedings.”    Stanton v. District of Columbia, No.

09-988, 2010 U.S. Dist. LEXIS 6609, at *10 (D.D.C. Jan. 27, 2010)

(citing Reid, 401 F.3d at 526) (internal quotation marks

omitted).

III. ANALYSIS

     Plaintiff seeks reversal of the November 2008 HOD.      As

discussed above, the hearing officer found that she “lacked

jurisdiction” over the October 2008 due process complaint because

D.S. was not enrolled in any District of Columbia school at the

time the due process complaint was filed.   AR at 6.    She also

determined that plaintiff’s lack of enrollment made it

“physically impossible” for Cardozo to revise plaintiff’s IEP,

implement her IEP, evaluate her in any area of suspected ability,

or determine an appropriate educational placement.      AR at 6.   In

addition, based on her finding of jurisdictional defect, the

hearing officer found that the October 2008 due process complaint




                                 10
was “frivolous.”   AR at 6.   Plaintiff argues that this decision

was rendered in error, and this Court agrees.

     As the District acknowledges, DCPS is required to “make a

[FAPE] available to each child with a disability, ages three to

twenty-two, who resides in, or is a ward of, the District.”     D.C.

Mun. Regs. tit. 5, § 3002.1(a); see also Def.’s Cross-Mot. at 16

(agreeing with plaintiff’s assertion that “DCPS is required to

provide FAPE to disabled students who reside in the District”).

The obligation to provide a FAPE, therefore, is triggered by a

child’s residency in the District – not the child’s enrollment in

a public school in the District.      Indeed, regardless of a child’s

enrollment status, DCPS is required to “ensure that procedures

are implemented to identify, locate, and evaluate all children

with disabilities residing in the District who are in need of

special education and related services, including children with

disabilities attending private schools,” id. § 3002.1(d), and

must make a FAPE available “to any child with a disability who

needs special education and related services, including children

who are suspended or expelled, and highly mobile children[.]”

Id. § 3002.1(e).

     Because DCPS has an ongoing, affirmative obligation to

locate children with disabilities residing in the District and to

provide them with a FAPE, a child’s school enrollment status has

never been a condition precedent to the filing of a due process


                                 11
complaint.   To the contrary, the IDEA affords parents the

opportunity to file administrative complaints and request due

process hearings “with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education to

such child.”   20 U.S.C. § 1415(b)(6)(A); see also D.C. Mun. Regs.

tit. 5, § 3029.1 (same).

     The Court, therefore, concludes that the hearing officer

erred in ruling that she lacked jurisdiction to consider the

October 2008 due process complaint based on D.S.’s enrollment

status.   Nothing in IDEA or the case law interpreting its

administrative review procedures suggests such a limitation, and

it was error for the hearing officer to dismiss D.S.’s complaint

on those grounds.   The hearing officer also erred, therefore, in

finding that plaintiff’s complaint was “frivolous.”

     While conceding that “the hearing officer’s conclusion that

Plaintiff’s non-enrollment in a D.C. Public School meant that the

hearing officer had no jurisdiction to hear the case, was in

error,” Def.’s Cross-Mot. at 15 (emphasis added), the District

nevertheless urges the Court to uphold the November 2008 HOD.

See Def.’s Cross-Mot. at 12 (admitting that the Hearing Officer

relied on “two inapplicable statutes,” but arguing that “the

hearing officer’s decision to dismiss Plaintiff’s due process

complaint was the correct one”).     Specifically, the District


                                12
contends that summary judgment should be entered in its favor

because D.S. failed to adduce sufficient evidence to prove, by a

preponderance of the evidence, that her IEP was inappropriate,

was not being implemented, and that Cardozo was an inappropriate

placement for her.   See Def.’s Cross-Mot. at 16-19 (analyzing how

plaintiff failed to meet her burden of proof).

     Lacking “‘the expertise of the hearing officer and school

officials responsible for the child’s education,’” Def.’s Mot. at

14 (quoting Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993)),

the Court concludes that the District’s motion for summary

judgment must be DENIED because the November 2008 HOD fails to

address the merits of plaintiff’s due process complaint.

Consequently, “a remand for further consideration of the

evidence, and for further findings of fact and conclusions of

law, is the only vehicle by which review consistent with the

applicable statutory scheme can be accomplished.”   Options Pub.

Charter Sch. v. Howe, 512 F. Supp. 2d 55, 57-58 (D.D.C. 2007);

see also, e.g., Stanton, 2010 U.S. Dist. LEXIS 6609 (remanding

case to hearing officer for supplementation of the record and for

a determination on compensatory education); Peak v. District of

Columbia, 526 F. Supp. 2d 32, 33 (D.D.C. 2007) (remanding case to

hearing officer, where the hearing officer made no findings as to

whether DCPS denied the child a FAPE); Goldstrom v. District of

Columbia, 319 F. Supp. 2d 5, 6 (D.D.C. 2004) (same).


                                13
      Accordingly, the November 2008 HOD is hereby REVERSED, and

the action is REMANDED to the hearing officer for a determination

on the merits.     The hearing officer is directed to determine

whether D.S. was denied a FAPE and, if so, the amount of

compensatory education to which she is entitled.

IV.   CONCLUSION

      For the reasons set forth above, the Court REVERSES the

November 2008 HOD and REMANDS this action to the hearing officer

for consideration on the merits.       Plaintiff’s motion for summary

judgment is hereby GRANTED, and defendant’s motion for summary

judgment is DENIED.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           March 30, 2010




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