                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DON MONTUORI & LOUIS BAYARD, on
 behalf of A.M.
         Plaintiffs,
                                                          Civil Action No. 17-2455 (CKK)
        v.

 DISTRICT OF COLUMBIA,
      Defendant.

                                 MEMORANDUM OPINION
                                   (September 26, 2018)

       Plaintiffs Don Montuori and Louis Bayard, on behalf of their minor child A.M., brought

this action against Defendant District of Columbia alleging violations of the Individuals with

Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et. seq. Plaintiffs initiated this action

to challenge the adequacy of a Hearing Officer’s Determination that, in part, rejected their claim

that Defendant failed to provide A.M. with a free and appropriate public education.

       Presently before the Court are Plaintiffs’ [13] Motion for Summary Judgment and

Defendant’s [14] Cross Motion for Summary Judgment. On August 28, 2018, Magistrate Judge

Robin Meriweather issued a Report and Recommendation (hereinafter “Magistrate Judge

Meriweather’s Report”), recommending that both Plaintiffs’ Motion for Summary Judgment and

Defendant’s Cross Motion for Summary Judgment be granted in part and denied in part.

Specifically, Magistrate Judge Meriweather recommended that the Court:

       1) Determine that Defendant violated its Child Find obligations by delaying its
          evaluation of A.M.;
       2) Reject Plaintiffs’ challenge to the Hearing Officer’s rulings regarding Defendant’s
          alleged delay in conducting a functional behavior assessment and alleged failure to
          update the functional behavior assessment;
       3) Reject Plaintiffs’ challenge to the adequacy of the February 2016 individualized
          education plan, including A.M.’s educational placement; and
       4) Remand for further administrative proceedings regarding the award of compensatory
          education.

Report & Recomm. (“R&R”), ECF No. [22], at 45.

       On September 11, 2018, Plaintiffs filed objections to Magistrate Judge Meriweather’s

Report, requesting that the Court grant Plaintiffs’ Motion for Summary Judgment in full. On that

same day, Defendant also filed an objection to Judge Meriweather’s conclusion that Defendant

violated the Child Find provision of the IDEA. Upon consideration of the pleadings,1 the

relevant legal authorities, and the record as a whole, the Court finds that only one of Plaintiffs’

objections has merit. In addition to agreeing with the findings and conclusions in Magistrate

Judge Meriweather’s Report, the Court also finds that A.M. was denied a free and appropriate

education during the first half of the 2016-2017 school year based on Defendant’s failure to

properly implement A.M.’s Behavior Intervention Plan.

       Accordingly, the Court shall ADOPT Magistrate Judge Meriweather’s well-reasoned and

thorough Report and Recommendation. But, the Court goes further and also concludes that A.M.

was denied a free and appropriate education during the first half of the 2016-2017 school year.

The Court shall GRANT-IN-PART and DENY-IN-PART Plaintiffs’ [13] Motion for Summary

Judgment and shall GRANT-IN-PART and DENY-IN-PART Defendant's [14] Cross Motion for




1
 Plaintiffs’ Motion for Summary Judgment, ECF No. [13]; Defendant’s Cross Motion for
Summary Judgment, ECF No. [14]; Defendant’s Opposition to Plaintiffs’ Motion for Summary
Judgment, ECF No. [15]; Plaintiffs’ Opposition to Defendant’s Cross Motion for Summary
Judgment, ECF No. [16]; Plaintiffs’ Reply in Support of its Motion for Summary Judgment, ECF
No. [17]; Defendant’s Reply to Plaintiffs’ Opposition to Defendant’s Cross Motion for Summary
Judgment, ECF No. [18]; Plaintiffs’ Objections to the Magistrate Judge’s Report and
Recommendation, ECF No. [23]; Defendant’s Objections to the Magistrate Judge’s Report and
Recommendation, ECF No. [24]; Plaintiffs’ Response to Defendant’s Objections, ECF No. [25];
Defendant’s Response to Plaintiffs’ Objections, ECF No. [26]; and Plaintiffs’ Reply in Support
of Plaintiffs’ Objections, ECF No. [27].


                                                  2
Summary Judgment. The Court shall remand for further administrative proceedings regarding

the award of compensatory education.

                                       I. LEGAL STANDARD

       Under the IDEA, a “party aggrieved by the findings and decision” of the Hearing Officer

may bring a civil action in federal court. 20 U.S.C. § 1415(i)(2)(A). The court “shall receive the

records of the administrative proceedings,” “shall hear additional evidence at the request of a

party,” and, “basing its decision on the preponderance of the evidence, shall grant such relief as

the court determines is appropriate.” Id. at § 1415(i)(2)(C). In a civil action reviewing an IDEA

administrative determination, “[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. ex rel. Robinson v. District of Columbia, 637 F. Supp. 2d 11, 16 (D.D.C.

2009). Where, as here, neither party asks the Court to consider additional evidence, “the motion

for summary judgment is simply the procedural vehicle for asking the judge to decide the case on

the basis of the administrative record.” Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir.

1997) (internal quotations omitted).

       The party challenging the Hearing Officer’s Determination bears the burden of proof and

must “‘at least take on 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) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989)). The preponderance-

of-the-evidence standard in this context does not grant the reviewing court unfettered de

novo review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.

Rowley, 458 U.S. 176, 206 (1982) (“Thus the provision that a reviewing court base its decision

on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute




                                                 3
their own notions of sound educational policy for those of the school authorities which they

review.”). Rather, courts must give “due weight” to the administrative

proceedings. Id. “‘[F]actual findings from the administrative proceeding are to be considered

prima facie correct.’” Roark ex rel. Roark v. District of Columbia, 460 F. Supp. 2d 32, 38

(D.D.C. 2006) (quoting S.H. v. State–Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir.

2003)). Because the IDEA permits a reviewing court to entertain additional evidence at the

request of a party, courts employ “‘less deference than is conventional’ in administrative

proceedings.” Reid, 401 F.3d at 521 (quoting Kerkam, 862 F.2d at 887). Nevertheless, the Court

should “defer to the [hearing officer's] factual findings unless it can point to contrary

nontestimonial extrinsic evidence on the record.” S.H., 336 F.3d at 270; accord Alfono v. District

of Columbia, 422 F. Supp. 2d 1, 8 (D.D.C. 2006); Armstrong v. District of Columbia, No. 03-

2598, 2005 WL 433448, at *2 (D.D.C. Feb. 24, 2005). Additionally, the Court reviews de novo

those portion of a Magistrate’s Report and Recommendation to which the parties have objected.

See Local Civil Rule 72.3(c).

                                        II. BACKGROUND

        Plaintiffs are the parents of A.M., a minor child found eligible to receive special

education and related services under the IDEA as a student with a disability. See 20 U.S.C.

§ 1400 et. seq. Defendant is a municipal corporation that receives federal funds pursuant to the

IDEA in exchange for providing a free and appropriate public education (“FAPE”) and is

obligated to comply with the IDEA. See 20 U.S.C. § 1411, 1412(a)(1)(A).

                    A. Statutory Framework

        The IDEA mandates that local school districts ensure that “[a]ll children with disabilities

residing in the State … regardless of the severity of their disabilities, and who are in need of special




                                                   4
education and related services, are identified, located, and evaluated.” 20 U.S.C. § 1412(a)(3)(A).

Once such children have been identified, located, and evaluated the school district must provide

them with a FAPE. A FAPE is defined as “special education and related services that-- (a) have

been provided at public expense, under public supervision and direction, and without charge; (B)

meet the standards of the State educational agency; (C) include an appropriate preschool,

elementary school, or secondary school education in the State involved; and (D) are provided in

conformity with [a child’s] individualized education program.” Id. § 1401(9).

       To ensure children with disabilities receive a FAPE, IDEA requires that the school district

create and implement an Individualized Education Plan (“IEP”). Lesesne ex rel. B.F. v. District of

Columbia, 447 F.3d 828, 830 (D.C. Cir. 2006). The IEP is created at multi-disciplinary meetings

with a representative of the school district, teachers, parents or guardians, and the child if

appropriate. Honig v. Doe, 484 U.S. 305, 311 (1988). The IEP sets out the child’s baseline

educational performance, establishes long-term and short-term goals for improvement, and lays

out the specialized educational services the child will require to meet those goals. Id. At a

minimum, the IEP must be reasonably calculated to provide “personalized instruction with

sufficient support services to permit the child to benefit educationally from that instruction.”

Rowley, 458 U.S. at 203-04.

       After the IEP is created, the school district must provide the child with an appropriate

educational placement that is in line with the IEP. See Alston v. District of Columbia, 439 F. Supp.

2d 86, 90 (D.D.C. 2006). A child’s appropriate educational placement should be in the least

restrictive environment possible. See Brown v. District of Columbia, 179 F. Supp. 3d 15, 26-27

(D.D.C. 2016). If the child’s appropriate educational placement is in the regular classroom of a

public education system, the IEP “should be reasonably calculated to enable the child to achieve




                                                 5
passing marks and advance from grade to grade.” Rowley, 458 U.S. at 204. But, if there is no public

school which is suitable, the school district “must pay the cost of sending the child to an appropriate

private school.” Reid, 401 F.3d at 519 (internal quotations omitted).

                   B. Factual Background

       After reviewing Magistrate Judge Meriweather’s Report, the administrative record, and the

parties’ arguments, the Court adopts in full Magistrate Judge Meriweather’s Factual Background.

The Court has considered each of the parties’ objections. Considering the objections, the Court

concludes that Magistrate Judge Meriweather’s recitation of the factual background is supported

by the administrative record.

       The Court will address more fully one of Plaintiffs’ objections to Magistrate Judge

Meriweather’s factual findings. The Hearing Officer and Magistrate Judge Meriweather both

found that, in elementary school, school officials had developed a plan under Section 504 of the

Rehabilitation Act to ensure that A.M. was receiving proper accommodations in light of his ADHD

diagnosis. R&R, ECF No. [22], 4; AR 8. A 504 Plan is a “legal document designed to plan a

program of instructional services to assist students with special needs who are in regular education

settings.” Parker v. Friendship Edison Pub. Charter Sch., 577 F. Supp. 2d. 68, 71 n.2 (D.D.C.

2008). Plaintiffs object to this factual finding, claiming that A.M. never had a 504 plan during

elementary school or any time prior to May 2015. But, Plaintiffs fail to meet their burden of proof

in demonstrating that the Hearing Officer’s factual finding was erroneous.

         There are at least two places in the record indicating that A.M. had a 504 Plan prior to

attending middle school. A 2015 comprehensive psychological reevaluation conducted by District

of Columbia Public Schools (“DCPS”) states that A.M. “has been receiving services through a 504

plan since attending … Elementary School.” AR 78. A final eligibility determination report from




                                                  6
DCPS in January 2016 also indicated that A.M. had been receiving “services through a 504 plan

for years.” AR 122.

       Plaintiffs counter that the only evidence that A.M. had a 504 Plan in elementary school

comes from DCPS’s own records. Plaintiffs argue that, while they had told A.M.’s elementary

school about his ADHD diagnosis, there had been no meetings or discussions concerning any sort

of specialized education plan. But, given that the 504 Plan is referenced in two different official

documents, this testimonial evidence is not sufficient to meet Plaintiffs’ burden of proof for

overturning a Hearing Officer’s factual findings. See Savoy v. District of Columbia, 844 F. Supp.

2d 23, 30 (D.D.C. 2012) (explaining that the Court should defer to a Hearing Officer’s factual

finding absent contrary nontestimonial evidence).

       Plaintiffs also argue that A.M.’s middle school sent them an initial 504 plan in May of

2015. Assuming this to be true, this fact does not contradict evidence that A.M. also had a 504

Plan in elementary school. Plaintiffs fail to prove by a preponderance of the evidence that the

Hearing Officer’s factual finding was in error.

       Giving full consideration to the objections on both sides, the Court adopts the Factual

Background section of Magistrate Judge Meriweather’s Report.

                   C. The Hearing Officer’s Determination

       On May 30, 2017, Plaintiffs filed an administrative complaint on behalf of A.M. against

DCPS. AR 371. On June 27, 2017, the Hearing Officer completed a Prehearing Order which

identified six issues to be adjudicated:

   1) Whether DCPS denied A.M. a FAPE by failing to implement its Child Find Obligation
      from June 1, 2015, to the present because it failed to perform a comprehensive
      psychological evaluation and a FBA.
   2) Whether DCPS denied A.M. a FAPE by failing to provide him with a Functional
      Behavior Assessment (“FBA”) pursuant to the parent’s written request on March 24,




                                                  7
        2015, failing to update the FBA appropriately, leading to an ineffective and rarely
        implemented Behavior Intervention Plan (“BIP”).
   3)   Whether DCPS denied A.M. a FAPE by failing to provide him with an appropriate
        educational placement from August 2015 to the present by: 1) failing to provide an
        appropriate therapeutic setting and 2) failing to appropriately and consistently implement
        the student’s behavior plans.
   4)   Whether DCPS denied A.M. a FAPE by failing to provide him with an appropriate IEP
        on February 4, 2016, through failing to provide: 1) sufficient hours of specialized
        instruction, 2) an appropriate educational placement, 3) sufficient behavioral support
        services outside of the general education setting, 4) an IEP with reasonable, measurable
        goals, calculated to provide A.M. with appropriately ambitious educational benefit, and
        5) an IEP to appropriately address A.M.’s behavioral needs through an appropriate and
        consistently updated and implemented BIP.
   5)   Whether DCPS denied A.M. a FAPE by failing to provide him with an appropriate IEP in
        February 15, 2017, through failing to provide: : 1) sufficient hours of specialized
        instruction, 2) an appropriate educational placement, 3) sufficient behavioral support
        services outside of the general education setting, 4) an IEP with reasonable, measurable
        goals, calculated to provide A.M. with appropriately ambitious educational benefit, and
        5) an IEP to appropriately address A.M.’s behavioral needs through an appropriate and
        consistently updated and implemented BIP.
   6)   Whether DCPS denied A.M. a FAPE in and/or around January through February 2017 by
        delegating the educational placement decision to a school team, which did not include the
        parents or those knowledgeable about A.M.

AR 466.

        The Hearing Officer conducted a two-day hearing on August 9, 2017 and August 10,

2017 at which ten witnesses were called. AR 4, 7. On August 27, 2017, the Hearing Officer

issued a determination, ruling partly in Plaintiffs’ favor. On Issue One, the Hearing Officer

concluded that DCPS did not deny A.M. a FAPE by failing to implement its Child Find

obligations beginning on June 1, 2015. AR 15. On Issue Two, the Hearing Officer concluded that

DCPS did not improperly delay issuance of an FBA, but found that DCPS failed to implement

A.M.’s BIP and thereby denied A.M. a FAPE. AR 17. On Issue Three, the Hearing Officer

concluded that A.M.’s placement was appropriate prior to January 2017, but was inappropriate

after January 2017 because it did not address the change in A.M.’s disability classification and

his escalating behaviors. AR 18-19. On Issue Four, the Hearing Officer concluded that A.M.’s




                                                 8
initial, February 2016 IEP was reasonably calculated to provide A.M. educational benefit. AR

20. On Issue Five, the Hearing Officer concluded that DCPS failed to provide A.M. with an

appropriate IEP in January 2017. AR 21-22. Finally, on Issue Six, the Hearing Officer concluded

that DCPS did not deny A.M. a FAPE by delegating education placement to the team. AR 23.

       Because Plaintiffs prevailed on Issue Five and partly on Issues Two and Three, the

Hearing Officer concluded that A.M. was denied a FAPE during the last half of the 2016-2017

school year based on an ineffective February 2017 IEP, and unimplemented BIP, and

inappropriate education setting. AR 23-24. As a result, the Hearing Officer ordered DCPS to: 1)

place A.M. at a different school, the Phillips School, for the 2017-2018 school year; 2) convene a

multi-disciplinary team meeting at that school within 30 days of A.M. attending to update his

IEP; and 3) convene a multi-disciplinary team meeting to review and revise A.M.’s IEP 30 days

before the end of the 2017-2018 schoolyear.2 Id.

                  D. The Current Proceeding

       On November 15, 2017, Plaintiffs filed this action challenging the Hearing Officer’s

Determination. The parties cross-moved for summary judgment. This Court then referred this

matter to Magistrate Judge Meriweather for a Report and Recommendation on the parties’ cross-

motions for summary judgment. See Order Referring Case, ECF No. [19]. Magistrate Judge

Meriweather largely affirmed the determinations of the Hearing Officer. But, Magistrate Judge

Meriweather disagreed with the Hearing Officer on Issue One. Magistrate Judge Meriweather’s

Report concluded that DCPS did violate its Child Find obligations by delaying its evaluation of

A.M. R&R, ECF No. [22], 45. Because Magistrate Judge Meriweather found an additional



2 In accordance with A.M.’s updated May 2018 IEP, DCPS determined that A.M. should be
placed at the Phillips School, with costs borne by DCPS, for the 2018-2019 school year. See
Notice of Withdrawal of One of Pls.s’ Reqs. For Relief, ECF No. [20].


                                                9
violation of IDEA, she recommended that the case be remanded to the Hearing Officer for

further administrative proceedings regarding whether the award of compensatory education

should be adjusted given the Child Find violation.

       A party who wants to object to a Magistrate Judge’s Report and Recommendation must

file a written objection within 14 days. See Local Civil Rule 72.3(b). Plaintiffs and Defendant

both filed objections to Magistrate Judge Meriweather’s Report within the deadline.

       Plaintiffs have four primary objections. First, Plaintiffs argue that Magistrate Judge

Meriweather’s Report was based upon some incorrect facts unsupported by the evidence in the

administrative record. Plaintiffs’ Objections to the R&R Issued on August 28, 2018 (“Plaintiffs’

Objections”), ECF No. [23], 1. Second, Plaintiffs argue that Magistrate Judge Meriweather erred

in determining that DCPS’s failure to conduct, and later update, a FBA following a March 2015

meeting did not deprive A.M. of a FAPE. Id. Third, Plaintiffs claim that Magistrate Judge

Meriweather erred in concluding that A.M.’s initial, February 2016 IEP did not deny him a

FAPE. Id. at 2. Lastly, Plaintiffs complain that Magistrate Judge Meriweather erred in finding

that A.M. was not denied a FAPE based on inappropriate educational placement from August

2015 through January 2017. Id.

       Defendant has only one objection to Magistrate Judge Meriweather’s Report. Defendant

argues that Magistrate Judge Meriweather erred in finding that DCPS violated Child Find by

delaying A.M.’s evaluation for services under IDEA.

       After considering all of Plaintiffs’ and Defendant’s objections, the Court finds only one

of Plaintiffs’ objections persuasive. The Court concludes that A.M. was denied a FAPE in the

first half of the 2016-2017 school year based on DCPS’s failure to implement A.M.’s BIP. The




                                                10
Court adopts Magistrate Meriweather’s Report with this additional conclusion. The Court will

address some of the Defendant’s and Plaintiffs’ objections in turn.

                              III. DEFENDANT’S OBJECTIONS

       In conjunction with the administrative record and Magistrate Judge Meriweather’s

Report, the Court has considered all of Defendant’s objections. With Defendant’s arguments in

mind, the Court concludes that none of Defendant’s objections are persuasive. The Court will

address some of Defendant’s objections in additional detail.

       Commonly referred to as “Child Find,” IDEA requires that policies and procedures are in

place to ensure that children “who are in need of special education and related services, are

identified, located, and evaluated.” 34 C.F.R. § 300.111(a)(1)(i). Defendant objects to Magistrate

Judge Meriweather’s conclusion that DCPS violated Child Find by failing to timely evaluate

A.M. for special education services under IDEA. Specifically, Defendant argues that Magistrate

Judge Meriweather failed to give due weight to the Hearing Officer’s findings underpinning his

conclusion that DCPS did not violate Child Find. According to Defendant, the Hearing Officer

found that DCPS was relieved of its duties under Child Find when, during a March 2015 meeting

between Plaintiffs and school officials, Plaintiffs agreed to proceed with the 504 Plan process in

lieu of initiating IDEA services.

       But, Defendant fails to acknowledge that Child Find is an “affirmative obligation” which

requires a school to identify, locate, and evaluate students who need special education services.

Davis v. District of Columbia, 244 F. Supp. 3d 27, 49 (D.D.C. 2017) (quoting D.L. v. District of

Columbia, 109 F. Supp. 3d 12, 35 (D.D.C. 2015)). Whether Plaintiffs asked the school for an

IDEA evaluation or were content with the 504 Plan is not the relevant question. What matters is

that, for reasons explained in Magistrate Judge Meriweather’s Report, DCPS was on notice of




                                                11
substantial evidence that A.M. could qualify for special education services. Accordingly, DCPS

had a duty to evaluate him for services under the IDEA. The failure to timely do so constitutes a

Child Find violation.

       After carefully considering the administrative record, Magistrate Judge Meriweather’s

Report, and all of Defendant’s arguments, the Court adopts Magistrate Judge Meriweather’s

findings and conclusions on DCPS’s violation of Child Find.3

                                IV. PLAINTIFFS’ OBJECTIONS

       In conjunction with the administrative record and Magistrate Judge Meriweather’s

Report, the Court has considered each of Plaintiffs’ objections. With Plaintiffs’ arguments in

mind, the Court concludes that only one of Plaintiffs’ objections is persuasive: A.M. was denied

a FAPE based on DCPS’s failure to implement his BIP during the first half of the 2016-2017

school year. This issue was not addressed in Magistrate Judge Meriweather’s Report, so the

Court adopts the Report with this additional conclusion. The Court will address some of

Plaintiffs’ objections in additional detail below.

                   A. The Delay in Conducting a FBA Did Not Deny A.M a FAPE from the
                      Beginning of the 2015-2016 School Year through November 2015

       First, Plaintiffs generally object to Magistrate Meriweather’s conclusion that DCPS’s

failure to conduct a FBA until November 2015 did not deny A.M. a FAPE. Plaintiffs claim that,

at a March 2015 meeting, parents and school officials formally agreed to begin the IEP




3 Magistrate Judge Meriweather’s Report concludes that DCPS’s Child Find violation deprived
A.M. of a FAPE “between June 2015 and the end of the first half of the 2016-2017 school year.”
R&R, ECF No. [22], 23. Read in context, it is clear that Magistrate Judge Meriweather actually
found a denial of a FAPE based on the Child Find violation between June 2015 and the end of
the first half of the 2015-2016 school year when A.M. was evaluated for services under IDEA.
Accordingly, the Court concludes that the denial of a FAPE lasted through the end of the first
half of the 2015-2016 school year.


                                                 12
evaluation process, which required that an FBA be conducted within 120 days. D.C. Code § 38-

2561.02(a)(1). But, the Hearing Officer found that, while the team at the March 2015 meeting

decided that an FBA should be conducted, the purpose of the agreed upon FBA was not a formal

evaluation of A.M.’s eligibility for IDEA services. Accordingly, there was not a deadline by

which the FBA needed to be conducted.

        Plaintiffs fail to present record evidence to disturb the Hearing Officer’s conclusion.

Plaintiffs point to notes taken by an attendee of the March 2015 meeting. But these notes show

only that the “IEP Process” was a “Service Consideration.” AR 580. The IEP process was not

listed under the “Solutions” decided on at the meeting. Id. Instead, the solutions focused on a 504

Plan, a FBA, a BIP, and other accommodations. Id.

        Plaintiffs also support their argument that the March 2015 meeting resulted in a decision

to pursue IDEA services with testimony from Plaintiffs’ education consultant and statements

made by Plaintiffs themselves. AR 971-975; AR 1140-45. The consultant stated that, at the

March 2015 meeting, the team decided to “develop a 504 Plan and initiate an IEP process as

well.” AR 972. But, the consultant was not working for Plaintiffs until May 2015, so her

knowledge of the March 2015 meeting is second-hand. AR 971. And, the statements from

Plaintiffs are equivocal and do not show by a preponderance of the evidence that the Hearing

Officer’s understanding of the March 2015 meeting was erroneous. See AR 1142 (Plaintiff stated

“I think it was the understanding that [the IEP process] was going – that the process was going

forward.”); see also AR 1145 (Plaintiff stated “At this point I guess we were still talking about

the 504 Plan even though we had long since asked about an IEP and we hadn’t even seen that

plan or a timetable for it.”).




                                                 13
       Magistrate Judge Merriweather also concluded that Plaintiffs’ Child Find arguments

provide some evidence that the March 2015 meeting did not result in a formal decision to pursue

services under the IDEA. In arguing that DCPS violated Child Find, Plaintiffs claim that DCPS

did not identify and evaluate A.M. for services until October 2015, implicitly conceding that

there was no agreement to evaluate A.M. for IDEA services at the March 2015 meeting.

Plaintiffs contest Magistrate Judge Meriweather’s characterization of their Child Find Argument.

But, Plaintiffs miss the bigger picture. Plaintiffs have not pointed to evidence in the

administrative record showing by a preponderance of the evidence that the March 2015 meeting

resulted in a formal agreement to initiate the IEP process. Because they have not shown a formal

agreement to begin the IEP process, DCPS did not violate IDEA by failing to conduct a FBA

within 120 days. Whatever Plaintiffs may or may not have implicitly conceded is irrelevant.

       Plaintiffs next contend that, even if the IEP process was not formally initiated in March

2015, the FBA still had to be completed within 120 days of the March 2015 meeting because, at

the meeting, the team decided to conduct an FBA. The law in effect at the time required DCPS to

“assess or evaluate a student who may have a disability and who may require special education

services within 120 days from the date that the student was referred for an evaluation.” D.C.

Code § 38-2561.02(a)(1). This provision applies only to a school district’s initial evaluation of

whether a student qualifies for special education services under the IDEA and is triggered by an

official referral for such an evaluation. See Goldstrom v. District of Columbia, 319 F. Supp. 2d 5,

8 (D.D.C. 2004) (noting that D.C. law requires an initial evaluation within 120 days of a

referral). The provision does not require that all tests used to assess a student’s educational needs

be conducted within 120 days of the initial decision to conduct the test. Because the March 2015




                                                 14
did not result in a referral for A.M. to be evaluated for an IEP and services under the IDEA, the

120-day deadline was not triggered.

       Finally, Plaintiffs argue that DCPS’s Child Find violation requires a finding that the FBA

occurred too late because DCPS was required to evaluate A.M. by June 1, 2015. So, according to

Plaintiffs, the FBA should have taken place within 120 days of June 1, 2015. But, the IDEA does

not mandate which tests must be used to evaluate a student. As such, a FBA is not required as

part of an initial evaluation of a student’s disability status. See D.K. v. Abington Sch. Dist., 696

F.3d 233, 251 (3d Cir. 2012) (“[T]he IDEA and its implementing regulations do not require that

a school use a functional behavioral assessment when initially testing students for suspecting

disabilities.”). Even if DCPS had referred A.M. for an evaluation under IDEA by June 1, 2015,

that does not necessarily mean that an FBA would have had to have been completed within 120

days. Accordingly, DCPS’s Child Find violation does not require a finding that A.M. was denied

a FAPE based on the timing of the FBA.

       Considering all of Plaintiffs’ arguments, the Court agrees with Magistrate Judge

Meriweather’s finding that DCPS’s failure to conduct an FBA prior to November 2015 did not

result in the denial of a FAPE.

                   B. DCPS’s Failure to Update A.M.’s FBA Did Not Deny Him a FAPE from
                      November 2016 to January 2017

       Plaintiffs similarly object to Magistrate Judge Meriweather’s conclusion that A.M. was

not denied a FAPE when DCPS failed to conduct a second FBA between November 2016 and

the development of A.M’s updated BIP in January 2017. But, Plaintiffs fail to cite any authority

that would have required DCPS to conduct a new FBA. The IDEA requires school districts to

reevaluate children who have a disability, if needed or on the request of a parent or teacher, at

least once every three years but no more than once a year. 20 U.S.C. § 1414(a)(2)(B). This



                                                  15
provision does not require schools to re-do any specific tests as part of the process of updating an

IEP or BIP. As such, DCPS’s failure to conduct a new FBA when updating A.M.s’ BIP did not

deny him a FAPE.

        Moreover, Plaintiffs’ objection on this ground is likely moot. The Hearing Officer

already found that A.M. was denied a FAPE during the second half of the 2016-2017 school

year, in part, due to DCPS’s failure to properly implement A.M.’s BIP. AR 18. And, as will be

explained below, this Court finds that A.M. was denied a FAPE during the first half of the 2016-

2017 school year due to DCPS’s failure to properly implement A.M.’s BIP. See Infra IV.E. It is

not clear how the failure to update the FBA would impact A.M. beyond the denial of a FAPE

based on the failure to implement his BIP, for which he is already going to be compensated.

        Considering Plaintiffs’ arguments in full, the Court agrees with Magistrate Judge

Meriweather’s conclusion that DCPS’s failure to update A.M.’s FBA did not deprive him of a

FAPE.

                   C. A.M Was Not Denied a FAPE through the Creation of the February 2016
                      IEP

        Plaintiffs argue that Magistrate Meriweather erred in concluding that A.M.’s February

2016 IEP provided him a FAPE. Developing an IEP is a fact-specific endeavor which requires

school officials to make prospective judgments about a child’s academic and behavioral progress.

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dis. RE-1, 137 S. Ct. 988, 999 (2017). In

reviewing an IEP courts must look at the IEP at the time it was created, not with the benefit of

hindsight. Z.B. v. District of Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018). The Court concludes

that, based on what was known at the time, A.M.’s IEP was “reasonably calculated” to provide

“personalized instruction with sufficient support services to permit the child to benefit




                                                16
educationally from that instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cty. v. Rowley, 458 U.S. 176, 203-04 (1982).

       In finding that the February 2016 IEP provided A.M. with a FAPE, Magistrate Judge

Meriweather showed an understanding of the circumstances leading up to the development of the

IEP. As Magistrate Judge Meriweather noted, the administrative record shows that, even after

receiving a revised 504 Plan, A.M. continued to struggle academically and behaviorally. R&R,

ECF No. [22], 5. A.M. received numerous disciplinary referrals, including referrals to in-school

suspension. Id.; AR 172-78, 361. The record also shows that Plaintiffs continued reaching out the

school, and even hired an educational consultant, in order to get help for A.M. R&R, ECF No.

[22], 5; see e.g., AR 606, 609-10.

       Magistrate Meriweather also considered the results of tests conducted in preparation for

A.M.’s IEP. R&R, ECF No. [22], 31-32. Prior to creating A.M.’s IEP, DCPS conducted a

comprehensive psychological evaluation, a FBA, and a social history assessment to determine the

causes of and potential solutions for A.M.’s educational failings. AR 77 (comprehensive

psychological reevaluation); AR 96 (FBA); AR 103 (social history assessment report). Based on

the data from these tests, DCPS recognized that A.M. had oppositional and off-task behavior in

the classroom which affected his ability to learn. AR 139. DCPS also recognized that while A.M.

was struggling in all his classes, reading and written expression were the biggest areas of concern.

AR 137-39.

       Magistrate Meriweather considered this evidence and more in evaluating A.M.’s February

2016 IEP. Plaintiffs point to other evidence from the record further demonstrating that A.M. was

struggling academically and behaviorally. But pointing to additional evidence of A.M.’s struggles




                                                17
does not prove that Magistrate Judge Meriweather’s Report rested on a fundamental

misunderstanding of A.M.’s educational situation.

       Despite Magistrate Judge Meriweather’s thorough account of A.M.’s educational

struggles, Plaintiffs particularly fault Magistrate Judge Meriweather for her alleged reliance on a

comment contained in A.M.’s comprehensive psychological reevaluation which stated that A.M.

had average intellectual functioning and was “not in danger of failing any of his academic classes

so far.” AR 77-71. Plaintiffs argue that other record evidence showed that A.M. was failing many

of his classes prior to the February 2016 IEP.

       The Court notes that communications between Plaintiffs and DCPS, as well as other record

evidence, clearly show concern about A.M.’s progress academically and behaviorally. But, it is

not clear from the administrative record that A.M. was in imminent danger of failing prior to the

creation of his February 2016 IEP. The Analysis of Existing Data from October 2015 states that

A.M. had a D+ in Math and a D+ in English/Language Arts. AR 65-67. And, his grades from the

first advisory of the 2015-2016 school year show that A.M. had Cs in Math and Science, Ds in

English/Language Arts and Spanish, and As in World Geography and Health. AR 9, 78. While

these grades are certainly concerning, they do not show that the comprehensive psychological

reevaluation erred in stating that A.M. was not in imminent danger of failing. Moreover,

Magistrate Judge Meriweather considered the statement in the comprehensive psychological

reevaluation as only one piece of a larger picture which clearly showed A.M. to be struggling

academically and behaviorally prior to the creation of his February 2016 IEP.

       Based on this record evidence, Magistrate Judge Meriweather reasonably concluded that

the February 2016 IEP was calculated to enable A.M. to receive educational benefits as required

under the IDEA. See Rowley, 458 U.S. at 206-07. The IEP concluded that A.M. would need




                                                 18
“significant support to progress with the general education curriculum.” AR 137. Accordingly,

A.M. received three hours per week of specialized instruction in Reading, and three hours per week

of specialized instruction in Written Expression, both provided in the general education setting.

AR 140. A.M. also received 120 minutes per month of behavioral support services outside of

general education. AR 140. These behavioral services were provided outside of general education

because the IEP concluded that A.M. “requires social skills support in a smaller setting.” AR 141.

More generally, the IEP also noted that A.M. would need frequent reminders to stay on task in all

classes and would not be required to read a book at his reading level each month. AR 140.

       Plaintiffs claim that DCPS should have known that this IEP was insufficient. Plaintiffs

explain that they regularly asked for a new educational setting, new supports, additional service

hours, and more. But, the fact that Plaintiffs desired more support does not prove that the IEP was

inadequate when created. Similarly, Plaintiffs citations to A.M.’s continued struggles following

the implementation of the IEP do not show that the IEP was inadequate when created. While

A.M.’s continued struggles under the IEP are relevant, without more evidence, the Court will not

employ its hindsight to say that DCPS should have foreseen that the IEP would be insufficient.

See Z.B. v. District of Columbia, 888 F.3d 515, 524 (D.C. Cir. 2018) (instructing courts not to

evaluate IEPs with the benefit of hindsight).

       Plaintiffs also claim that A.M.’s lack of progress while on his first BIP should have shown

that A.M. required additional behavioral services in his IEP. But, A.M. received his first BIP on

January 28, 2016. AR 127. This BIP identified behaviors that were impeding A.M. and proposed

strategies to help alleviate those behaviors. Id. A.M.’s first IEP was completed approximately one

week later on February 4, 2016. AR 134. Given the short time between the development of the




                                                19
BIP and the development of the IEP, it is not reasonable for Plaintiffs to argue that data from the

implementation of the BIP should have informed the creation of the IEP.

       Plaintiffs cite two cases, which were decided after the Hearing Officer made his

determination, in support of the argument that A.M.’s February 2016 IEP was insufficient. In

Middleton v. District of Columbia, 312 F. Supp. 3d 113 (D.D.C. 2018), the court determined that

DCPS had denied a student a FAPE, in part, because DCPS failed to give the student, who was in

a general education setting, an appropriate placement to address his truancy. F. Supp. 3d at 145-

48. Similarly, in Wade v. District of Columbia, No. 17-1258, 2018 U.S. Dist. LEXIS 142423

(D.D.C. Aug. 22, 2018), the court relied on Middleton to hold that DCPS had denied a student a

FAPE, in part, because the student’s placement in a general education setting did not adequately

address his attendance issues. 2018 U.S. Dist. LEXIS 142423, at *26-29. Plaintiffs argue that these

cases show that the services provided in A.M.’s IEP were insufficient because A.M. also had

truancy issues. Plaintiffs’ reliance on these cases is misplaced.

       In Middleton, the student had previously been placed in a full-time, self-contained class,

and DCPS modified the student’s IEP, without a guardian or educational advocate present. Under

the modified IEP, the student was sent to a school which did not offer the services he had

previously received. Middleton, F. Supp. 3d at 134-139. In Middleton, the court’s denial of a FAPE

determination heavily relied on the fact that the student’s guardian had been prevented from

attending the IEP hearing. Id. at 134-37. Here, A.M.’s guardians were active participants in his

IEP meeting. AR 134. Additionally, in Middleton, limitations discussed in the student’s prior IEP

provided the court with evidence that, at the time the student’s IEP was revised, DCPS had

information sufficient to show that placement in the general education setting was not reasonably

likely to result in educational success. F. Supp. 3d at 137-39. Such evidence is not present here.




                                                 20
       In Wade, the student was transferred to a new school so that the student could receive the

services required under his IEP. 2018 U.S. Dist. LEXIS 142423, at *4. But, once at the new school,

the student’s IEP was revised, without the knowledge or consent of a parent or guardian, because

the school could not provide the services that the IEP had required. Id. at *7. Again, Wade is very

different than the case before the Court. In Wade, the needs identified in the student’s prior IEP

provided evidence that the revised IEP was not reasonably calculated to provide the student with

a FAPE. Id. at *25-29. Here, there is no evidence that DCPS had information establishing that

A.M.’s February 2016 IEP would be ineffective at its creation. Additionally, in Wade, the court

found that the student was given less services under the revised IEP because the school could not

provide the additional, needed services. Id. Here, there is no evidence that resource limitations at

A.M.’s school affected the choice of services provided in his IEP.

       Considering what was known by the school at the time, without the benefit of hindsight,

Plaintiffs fail to prove by a preponderance of the evidence that the February 2016 IEP was

unresponsive to A.M.’s needs.

                   D. A.M Was Not Denied a FAPE based on Inappropriate Educational
                      Placement from August 2015 to January 2017

       For many of the same reasons discussed above, A.M. was not denied a FAPE based on

inappropriate educational placement from August 2015 through January 2017.

       Magistrate Judge Meriweather’s Report found that DCPS violated Child Find from June 1,

2015 to the end of the first half of the 2015-2016 school year. This violation was based on DCPS’s

failure to evaluate A.M. for an IEP until the end of the first half of the 2015-2016 school year.

Because A.M. did not have an IEP during this time, his educational placement cannot be

challenged under the IDEA prior to his initial IEP in February 2016. See D.K. v. District of

Columbia, 983 F. Supp. 2d 138, 145 (D.D.C. 2013) (explaining that educational placement means



                                                21
something “‘between the physical school attended by the child and the abstract goals of a child’s

IEP’” (quoting Laster v. District of Columbia, 394 F. Supp. 2d 60, 64-65 (D.D.C. 2005))).

       Plaintiffs argue that, even without an IEP, the Court should conclude that A.M. was denied

a FAPE based on his educational placement prior to his February 2016 IEP. According to

Plaintiffs, if DCPS had evaluated A.M. as Child Find required, A.M. would have had an IEP, and

an inappropriate educational placement, from the beginning of the 2015-2016 school year on. But

Plaintiffs provide no support for the proposition that educational placement can be challenged

under the IDEA without an IEP. Absent any support, Plaintiffs have not met their burden to show

by a preponderance of the evidence that A.M. was denied a FAPE based on his educational

placement prior to February 2016.

       Plaintiffs also complain that A.M. was denied a FAPE based on his educational placement

from the time of his initial IEP in February 2016 to the time his IEP was revised in February 2017.

Plaintiffs object to Magistrate Judge Meriweather’s opposite conclusion. Plaintiffs claim that

Magistrate Judge Meriweather improperly considered only whether A.M.’s placement was

sufficient or whether he needed a full-time or non-public placement. But, Plaintiffs provide no

support for their argument that Magistrate Judge Meriwether considered only this binary choice.

Insofar as Magistrate Judge Meriweather’s Report emphasized the reasons that DCPS had for

keeping A.M. in the general education setting, that is in response to Plaintiffs emphasizing that

inclusion in the general education setting was an inappropriate placement.

       The Court concludes that Plaintiffs have not established that A.M.’s educational placement

under the February 2016 IEP was inappropriate. Given that A.M. had average intellectual abilities

and was not failing his classes, it was reasonable for A.M. to remain in the general education

setting with weekly services in Reading and Written Expression, his two weakest subjects. A.M.’s




                                                22
placement was in keeping with IDEA’s least restrictive environment provisions, which required

DCPS to ensure that, to the maximum extent appropriate, A.M. was educated with children who

are non-disabled. See 34 C.F.R. §§ 300.114(a), 300.116(a)(2).

                  E. A.M. Was Denied a FAPE during the First Half of the 2016-2017 School
                     Year based on DCPS’s Failure to Implement his BIP

       Plaintiffs argue that the Hearing Officer erred in not providing compensatory education for

DCPS’s failure to properly implement A.M.’s BIP from its initial creation in January 28, 2016

through the end of the 2016-2017 school year. The Hearing Officer found that DCPS deviated

from A.M.’s BIP by addressing A.M.’s behavioral difficulties through disciplinary means and

bypassing the special education team. AR 18. But, the Hearing Officer did not specify the time

period during which these violations occurred, and he compensated A.M. for the failure to

implement his BIP only during the second half of the 2016-2017 school year. AR 23-24. The Court

concludes that Plaintiffs have proven by a preponderance of the evidence that A.M.’s BIP was also

not properly implemented during the first half of the 2016-2017 school year, in addition to the

second half of the 2016-2017 school year, resulting in a denial of a FAPE. This denial of a FAPE

was not properly accounted for in the award of compensatory education. But, Plaintiffs have failed

to prove by a preponderance of the evidence that the BIP was not implemented from its creation

in January 28, 2016 to the end of the 2015-2016 school year.

       Plaintiffs have proven by a preponderance of the evidence that A.M. was denied a FAPE

based on DCPS’s failure to implement his BIP during the first half of the 2016-2017 school year.

During an October 2016 meeting, A.M.’s education team acknowledged that he was displaying

inappropriate behaviors. AR 11. He had been sent to in-school suspension for one infraction, but

the staff directing in-school suspension failed to inform A.M.’s special education team. Id. The

Hearing Officer found that there was no coordination between the IEP team and the staff member



                                               23
in charge of discipline at A.M.’s school. AR 12. The staff member in charge of discipline was not

aware of A.M.’s BIP and did not use it when addressing behaviors which were a result of his

disability. Id. Based on this evidence, the hearing officer concluded that, “particularly during SY

2016-2017,” A.M.’s negative behaviors “were principally addressed through disciplinary means”

including regular in-school suspension. AR 18. The “substantial deviation from the student’s

special education services … amounted to a denial of FAPE.” Id.

       There is ample evidence in the administrative record showing that DCPS failed to

implement A.M.’s BIP during the first half of the 2016-2017 year. A member of A.M.’s special

education team at his middle school, Jennifer Abdelmalek, testified that the person in charge of

discipline at A.M.’s high school was not aware of the accommodations in A.M.’s BIP and did not

implement those accommodations during the 2016-2017 school year. AR 1413-14. She

specifically noted an instance when A.M. was given in-school suspension, and she was not

informed about it, even though A.M.’s discipline was supposed to go through her. AR 1348-49.

       While the administrative record does show that A.M.’s teachers had his BIP and were

implementing it, the record also shows that during the 2016-2017 school year, A.M. was regularly

disciplined without the knowledge of his teachers or his special education team. AR 1392-94,

1391-92. The repeated use of non-BIP disciplinary tactics constituted a material deviation from

A.M.’s services guaranteed under IDEA. See James v. Dist. Of Columbia, 194 F. Supp. 3d 131,

139 (D.D.C. 2016) (explaining that IDEA is violated when there is a material deviation from

services). This material deviation resulted in a denial of a FAPE during the first half of the 2016-

2017 school year.

       Insofar as Plaintiffs are also arguing that the Hearing Officer found that the BIP was not

implemented from February 2016 to the end of the 2015-2016 school year, the Court concludes




                                                24
that Plaintiffs have not met their burden of proof. While the Hearing Officer did not present an

explicit timeline, the context and sequential structure of his factual findings suggest that his

findings on the failure to implement A.M.’s BIP applied exclusively to the 2016-2017 school year.

AR 11-14. Additionally, the testimony from Ms. Abdelmalek concerning A.M.’s discipline outside

of his BIP accommodations addressed only the 2016-2017 school year. There is some testimony

from Plaintiffs and their educational consultant that A.M.’s BIP was not being properly

implemented as early as the 2015-2016 school year. See e.g., AR 989, 1265. But, there is also

contemporaneous evidence in the administrative record that the BIP was being implemented.

Contemporaneous emails between Plaintiffs and A.M.’s middle school from the 2015-2016 school

year show that A.M.’s BIP was regularly being considered. See e.g., AR 660 (“The BIP is being

implement with fidelity by the 7th grade team and administrators are aware of its requirements.”).

While the administrative record evidences concern about A.M.’s BIP during the 2015-2016 school

year, Plaintiffs do not show by a preponderance of the evidence that there was a substantial

deviation from A.M’s BIP during the 2015-2016 school year.

       After carefully considering the administrative record, Magistrate Judge Meriweather’s

Report, and all of Plaintiffs’ arguments, the Court adopts Magistrate Judge Meriweather’s findings

and conclusions. But, the Court also goes further in the analysis of Plaintiffs’ claims to find a

denial of a FAPE during the first half of the 2016-2017 school year based on the failure to

implement A.M.’s BIP.

                                      V. CONCLUSION

       For the foregoing reasons, the Court adopts Magistrate Judge Meriweather’s Report and

Recommendation. The Court also goes further in its analysis to conclude that A.M. was denied a

FAPE during the first half of the 2016-2017 school year due to the failure to implement A.M.’s




                                               25
BIP. The Court shall GRANT-IN-PART and DENY-IN-PART Plaintiffs’ [13] Motion for

Summary Judgment and shall GRANT-IN-PART and DENY-IN-PART Defendant's [14] Cross

Motion for Summary Judgment. The Court shall remand for further administrative proceedings

regarding the award of compensatory education for the Child Find violation and the denial of a

FAPE during the first half of the 2016-2017 school year.

       An appropriate Order accompanies this Memorandum Opinion.


                                                      /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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