UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JENNIFER BRISCOE, Guardian of the Minor Child K.B., Plaintiff, Civil Action No. 22-3365 (CKK) v. DISTRICT OF COLUMBIA, Defendant.
MEMORANDUM OPINION (March 31, 2024)
On behalf of the minor child K.B., and pursuant to the Individuals with Disabilities
Education Act (“IDEA”), Plaintiff Jennifer Briscoe (“Plaintiff”), filed this action against the
District of Columbia (the “District”) to challenge an August 29, 2022 Hearing Officer’s
Determination (“HOD”) that dismissed her administrative due process claim filed against the
District of Columbia Public Schools (“DCPS”). In that HOD, the Independent Hearing Officer
(“IHO”) concluded that: (1) DCPS timely provided Plaintiff with an authorization for her
requested independent educational evaluation (“IEE”); (2) Plaintiff failed to demonstrate that
DCPS’s December 2020 reevaluation of K.B. was inadequate; and (3) DCPS committed a
procedural violation related to the provision of K.B.’s educational records that did not amount to
a substantive denial of free appropriate public education (“FAPE”). See August 29, 2022 HOD,
ECF No. 13-1, at 4-24. DCPS was directed, however, to provide a list of student documents that are
maintained in the Special Education Database (“SEDS”). Id. at 17.
The parties have filed cross motions for summary judgment regarding that August 29,
2022 HOD. In her Points and Authorities in support of her Motion for Summary Judgment,
Plaintiff claims that: (1) DCPS unnecessarily delayed its response to Plaintiff’s request for an
1 IEE; (2) DCPS refused to authorize a sufficient IEE, which led to a substantive violation of the
IDEA; (3) DCPS failed to prove the 2020-2021 reevaluation was appropriate; (4) the IHO erred
in finding that DCPS’s failure to provide a “SEDS Document Index” was not a substantive denial
of FAPE; and (5) DCPS has not complied with the IHO’s Order to provide the “SEDS Document
Index.” See generally Pl.’s P&A, ECF No. 15-1. Those five arguments will be addressed
herein.
In response thereto, the District asserts that Plaintiff has neither established a denial of
FAPE nor that the IHO erred in his decision, which is “entitled to deference because it is
supported by substantial evidence and is in accordance with law.” Defendant’s Cross Motion for
Summary Judgment, ECF No. 16, at 4. Furthermore, the District contends that “DCPS complied
with the HOD’s remedial order.” Id. Upon review of the two motions for summary judgment
and the record herein, for the reasons set forth in detail in this Memorandum Opinion, the Court
finds that Plaintiff’s [15] Motion for Summary Judgment shall be DENIED and Defendant’s [16]
Cross Motion for Summary Judgment shall be GRANTED.1 A separate Order accompanies this
Memorandum Opinion.
I. BACKGROUND
A. Statutory Framework
The IDEA was enacted to “ensure that all children with disabilities have available to them
1 In connection with this Memorandum Opinion, the Court considered: (1) the Administrative Record (“AR”), ECF No. 13-1 [indexed at ECF No. 13]; (2) Plaintiff’s’ [15] Motion for Summary Judgment (“Pl.’s MSJ”), Plaintiff’s [15-1] Points and Authorities in support thereof (“Pl.’s P & A”), and the exhibit attached thereto; (3) Defendant’s [16] [consolidated] Opposition to the Motion for Summary Judgment and Cross Motion for Summary Judgment (“Def.’s CMSJ”); (4) Plaintiff’s [20] [consolidated] Opposition to Defendant’s Cross Motion and Reply in support of Motion (“Pl.’s Reply”); and (5) Defendant’s [22] Reply in support of Cross Motion (“Def.’s Reply”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
2 a free appropriate public education (“FAPE”) that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education, employment,
and independent living.” M.G. v. District of Columbia, 246 F. Supp. 3d 1, 7 (D.D.C. 2017) (citing
20 U.S.C. § 1400(d)(1)(A)), see also Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C.
Cir. 2015). Once a child is identified as disabled, the school district must convene a meeting of a
multi-disciplinary team to develop an individualized education program (“IEP”) for the student.
See 20 U.S.C. § 1414 (d)(2)(A). The IEP “is the centerpiece of the statute’s education delivery
system for disabled children[.]” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137
S. Ct. 988, 994 (2017) (citation omitted). The IDEA requires that a school system “offer an IEP
that is reasonably calculated to enable a [disabled student] to make progress in light of the child’s
circumstances.” Id. at 999. Once the IEP is developed, the school system must provide an
appropriate educational placement that comports with the IEP.
The IDEA and accompanying regulations provide that once a child is determined to have a
disability, a reevaluation is required to determine whether the child continues to present with a
disability and that the child shall be assessed in all areas of suspected disability during this
reevaluation. 34 CFR 300.304(c)(4). The reevaluation shall occur if the parent requests a
reevaluation. 34 CFR 300.303(a)(2). The reevaluation must occur at least every 3 years unless
the parent and the public agency agree that a reevaluation is unnecessary. 34 CFR 300.303(b)(2).
The reevaluation is comprised of a variety of tools, including, inter alia: (1) assessments tailored
to assess specific areas of educational need; (2) review of existing data; (3) classroom-based
assessment; (4) observations by teachers and related service providers; (5) input from the parents.
34 CFR 300.304(b)(2). Pursuant to 34 CFR 300.502(b)(1), “[a] parent has the right to an
independent educational evaluation [“IEE”] at public expense if the parent disagrees with an
3 evaluation obtained by the public agency.” After the parent requests an IEE, the school system
has two choices: “(i) [f]ile a due process complaint to request a hearing to show that its evaluation
is appropriate; or (ii) [e]nsure an independent educational evaluation is provided at public
expense.” 34 CFR 300.502(b)(2). If the hearing officer finds that the evaluation comports with
the requirements of the IDEA for an initial evaluation or reevaluation, the parent is not entitled to
an independent educational evaluation at public expense.
B. Factual History
In April 2017, the District of Columbia Superior Court Youth and Family Services Division
referred K.B. for a psychoeducation evaluation, which showed overall average cognitive
functioning and moderately impaired to average academic functioning. See AR, ECF No. 13, at
51, 63-64. The evaluator concluded that K.B. had symptoms consistent with ADHD, Combined
Type, and K.B. was diagnosed also with an Adjustment Disorder with Mixed Disturbance of
Emotions and Conduct and recommended for tutoring and counseling. Id. at 63-64, 66-67.
K.B.’s initial IEP was developed in January 2018, when the student was in fifth grade
attending the Children’s Guild Public Charter School, its own Local Educational Agency (“LEA”)
under the IDEA, id. at 99, and she was determined eligible for special education services as a
student with Multiple Disabilities (Specific Learning Disability/Other Health Impaired). AR at
89-111. K.B. began attending DCPS Eliot-Hine Middle School (“Eliot-Hine”) for the 2020-2021
school year. AR at 188. Elliot-Hine provided virtual instruction that entire school year because of
the pandemic. Id. at 660. In December 2020, K.B.’s IEP team conducted a reevaluation to see if
K.B. remained eligible for special education, id. at 193, and the team determined that K.B.
remained eligible with the disability classification OHI/ADHD. Id. at 201.
K.B. next attended Paul PCS-International High School (“Paul PCS”), which is its own
4 LEA under the IDEA. AR at 246. On January 19, 2022, through counsel, Plaintiff contacted the
principal of Eliot-Hine requesting that DCPS fund an IEE. Id. at 284. The principal responded on
January 20, 2022, informing Plaintiff that K.B. was no longer a student at Eliot-Hine. Id. at 286.
On January 26, 2022, Paul PCS informed Plaintiff that it would conduct a comprehensive
psychological evaluation and a functional behavioral assessment (“FBA”) but would not fund an
IEE. Id. at 271.
On February 2, 2022, Plaintiff completed an application for K.B. to attend Coolidge High
School (“Coolidge”), a DCPS school. Id. at 273-275. On February 7, 2022, Plaintiff emailed
Coolidge requesting that DCPS fund an IEE. Id. at 287. On February 10, 2022, DCPS issued an
authorization letter for Plaintiff to obtain an independent comprehensive psychological evaluation,
and DCPS issued a second authorization letter for Plaintiff to obtain an independent speech
language evaluation and an independent assistive technology evaluation. Id. at 278, 280.2 DCPS
convened an IEP meeting on March 16, 2022, and DCPS agreed to conduct an occupational
therapy (“OT”) assessment and an FBA. Id. at 282. On June 16, 2022, DCPS issued a third
authorization letter, with funding for independent comprehensive psychological, speech language,
occupational therapy, and assistive technology testing. Id. at 300. That June 16, 2022 letter
voided the two February 10, 2022 authorization letters. Id.
On February 10, 2022, Plaintiff requested a copy of K.B.’s educational records. Id. at 391.
Plaintiff made several requests for records during the period February 2022-July 2022, AR at 394-
413, including a motion to compel the records.3 On April 7, 2002, DCPS provided the majority of
K.B.’s educational records in a zip file. Id. at 307. DCPS provided K.B.’s fourth quarter service
2 While the second authorization was dated February 10, 2022, the attorney for DCPS acknowledged at the due process hearing that this was not provided to Plaintiff until March 16, 2022, when counsel realized that letter had not been received previously. AR at 722-723. 3 This motion was denied as a pre-hearing matter by the IHO. AR at 8. 5 trackers and IEP progress reports by June 2022 and enrollment documents in July 2022. Id. at
715, 474.
1. Due Process Proceeding
On April 20, 2022, Plaintiff filed an administrative due process complaint alleging that
DCPS denied K.B. a FAPE by: (1) failing and refusing to agree to fund an IEE; (2) failing and
refusing to conduct an appropriate reevaluation in December 2020; (3) developing an IEP that was
based on an inappropriate reevaluation;4 and (4) failing to provide a complete copy of K.B.’s
educational records. Id. at 308-315. By way of relief, Plaintiff requested an order that DCPS: (1)
immediately fund an IEE; (2) convene an IEP meeting to review the IEE, find K.B. eligible for
special education, and develop an IEP; (3) order a compensatory education assessment, review the
assessment, and incorporate the assessment’s results into the IEP; and (4) provide K.B.’s
educational records. AR at 313-314. An administrative due process hearing was held on July 26,
2022. Id. at 614.
Plaintiff was the only witness presented on her own behalf. She testified that: (1) she
received the February 10, 2022 letter authorizing an independent psychological evaluation but
never had K.B. evaluated, id. at 679-680; (2) during a March 2022 meeting, DCPS offered to
conduct a speech language evaluation, OT evaluation, and an assistive technology evaluation but
her attorney rejected DCPS’s offer, id. at 673-674; and (3) she received the June 16, 2022 letter
authorizing her to obtain an independent comprehensive psychological evaluation, speech
language evaluation, OT evaluation, and assistive technology evaluation, but Plaintiff never tried
to have K.B. evaluated. Id. at 679-680. There was no testimony by Plaintiff about K.B.’s
educational records.
4 This claim was withdrawn on July 15, 2022. 6 On behalf of DCPS, Resolution Specialist Alexis Thom was the sole witness, and she
testified that her duties include reviewing parental requests for IEEs. Id. at 693-694. In response
to a parental request for an IEE, she issues a letter authorizing funding for various assessments
and then waits to receive the assessments from the parents. AR at 696-697. IEEs generally
include standardized and informal testing, class observations, parental input, and teacher input.
Id. at 700-701. An independent psychological assessment usually includes the student’s
behavioral history and the parent’s rating of the student’s behavior. Id. at 701. Ms. Thom
testified that she received Plaintiff’s request for an IEE in February and issued authorization
letters that month for psychological, speech language, and assistive technology assessments. AR
at 704-705. A third authorization letter was issued in June 2022, and that included an OT
assessment in addition to the three other assessments. Id. at 708. Ms. Thom testified that
Plaintiff requested no other assessments, including an FBA, after DCPS issued the June 2022 IEE
authorization letter. Id. at 713, 726. Ms. Thom explained that FBAs are conducted at the school
and behavioral intervention plans are created after the FBA. AR at 727-728.
Regarding educational records, Ms. Thom testified that Ms. Dabney, the LEA
representative for Coolidge, provided K.B.’s educational records to Plaintiff in a zip file on April
7, 2022, and Ms. Thom provided K.B.’s fourth quarter service trackers and IEP progress reports
sometime between May 13 and June 16, 2022, and K.B.’s enrollment documents on July 19, 2022.
Id. at 714-716. Production of the enrollment documents was delayed because hard copies were
maintained by the school registrar, who had been on leave. AR at 716.
Ms. Thom testified further that DCPS student educational records are contained in “SEDS”
and “Aspen” databases that do not completely overlap in content, and a “SEDS Index” would not
capture a complete list of educational records. Id. at 717-719. Furthermore, a “SEDS Index” is
7 not an actual document that can be printed; rather, a document tab in SEDS lists a student’s
educational records contained in SEDS, but SEDS does not generate a printable list. Id.; see also
AR at 729, 731. Accordingly, a user would need to take multiple screenshots of their computer
screen while scrolling the tab in order to create such a list and then separately upload the
screenshots into the SEDS database. Id. at 717-719.
2. HOD
IHO Coles Ruff, Esq. issued his HOD on August 29, 2022, and an amended version of the
same (correcting typographical errors) on August 31, 2022. AR at 4-24.5 The IHO concluded
that: (1) DCPS provided the requested IEP without unnecessary delay; (2) Plaintiff failed to meet
her burden on the inappropriateness of the December 2020 evaluation; and (3) Plaintiff
established a procedural violation regarding the provision of K.B.’s educational records, with
reference to the list of documents available in SEDS, but that procedural violation did not
constitute a denial of FAPE. AR at 8-9, 11. The IHO ordered DCPS to provide to Plaintiff the
complete list of documents pertaining to K.B.’s educational history, which were available through
SEDS (SEDS Documents Index). AR at 9, 17.
Pending before this Court are the Plaintiff’s [15] Motion for Summary Judgment, requesting
that this Court reverse the IHO’s HOD, and Defendant’s [16] Cross Motion for Summary
Judgment, asking this Court to affirm the HOD. The parties’ respective cross motions are fully
briefed and ripe for this Court’s review.
II. LEGAL STANDARD
“Although motions for review of an HOD are called motions for summary judgment, the
Court does not follow ‘a true summary judgment procedure.’” Middleton v. District of Columbia,
5 The Court references that amended version herein. 8 312 F. Supp. 3d 113, 128 (D.D.C. 2018) (quoting L.R.L. ex rel. Lomax v. District of Columbia,
896 F. Supp. 2d 69, 73 (D.D.C. 2012)); cf. Fed. R. Civ. P. 56. Rather, in a civil action brought to
challenge a Hearing Officer’s determination pursuant to the IDEA, “[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). When neither party has requested that the court hear additional evidence, the
motion for summary judgment is “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); M G. v. District of Columbia, 246 F. Supp. 3d 1, 8 (D.D.C. 2017) (citations omitted);
Thomas v. District of Columbia, 407 F. Supp. 2d 102, 109 (D.D.C. 2005) (same).
The party challenging the underlying HOD bears “the burden of persuading the
[reviewing] court that the hearing officer was wrong.” Kerkam v. McKenzie, 862 F.2d 884, 887
(D.C. Cir. 1988). A court reviewing an administrative IDEA determination “shall grant such
relief as the court determines is appropriate,” based upon “a preponderance of the evidence.” 20
U.S.C. § 1415(i)(2)(C)(iii); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,
Westchester Cty. v . Rowley, 458 U.S. 176, 205–06 (1982). Courts, however, must refrain from
“substitut[ing] their own notions of sound educational policy for those of the school authorities
which they review.” Id. at 206. Accordingly, “[c]ourts sitting on an IDEA appeal do not have
unfettered review but must . . . give due weight to the administrative proceedings and afford
some deference to the expertise of the [independent hearing officer] and school officials
responsible for the child’s education.” Gill v. District of Columbia, 751 F. Supp. 2d 104, 108-109
(D.D.C. 2010) (citing Lyons v. Smith, 829 F. Supp. 414, 418 (D.D.C. 1993) (internal quotation
marks omitted)). As a general matter, factual findings from the administrative proceeding are to
9 be considered prima facie correct. District of Columbia v. Ramirez, 377 F. Supp. 2d 63, 67
(D.D.C. 2005). Furthermore, “a hearing officer’s findings ‘based on credibility determinations of
live witness testimony’ are given ‘particular deference’ where there is no supplementation of the
record.” R.D. ex rel. McAllister v. District of Columbia, 45 F. Supp. 3d 72, 76–77 (D.D.C. 2014)
(citation omitted). Nonetheless, “a hearing decision ‘without reasoned and specific findings
deserves little deference.’” Reid ex rel. Reid v. District of Columbia, 401 F. 3d 516, 521 (D.C.
Cir. 2005) (quoting Kerkam v. McKenzie, 931 F.2d 84, 87 (D.C. Cir. 1991) (internal quotation
marks omitted)). “[A] court upsetting [a hearing] officer’s decision must . . . explain its basis for
doing so.” McKenzie, 862 F.2d at 86.
III. ANALYSIS
A. Did DCPS unnecessarily delay its response to Plaintiff’s request for an IEE?
If the parent requests an IEE, the public agency “must, without unnecessary delay,
either file a due process complaint to request a hearing to show that its evaluation is appropriate
or ensure that an IEE is provided at public expense.” 34 C.F.R. § 300.502(b)(2)(i), (ii).
Plaintiff contends that “Defendant acted with unnecessary delay in responding to Plaintiff’s
request for funding for an Independent Educational Evaluation[.]” Pl’s P&A, ECF No. 15-1, at 9.
In this case, the IHO found that “authorization for independent assessments that DCPS provided
Petitioner in response to her counsel’s request were provided promptly without unnecessary
delay and that those assessments satisfied the requirements pursuant to 34 CFR 300.502.” HOD,
ECF No. 13-1, at 14.
Plaintiff argues that “the Hearing Officer provided no rational or factual basis for [his]
conclusion,” but this argument misstates the record in this case and is non-persuasive. The IHO
first discussed “unnecessary delay” and determined that it is an inquiry addressed case-by-case.
10 HOD, ECF No. 13-1, at 13 (citing J.P. ex rel., E.P. v. Ripon United School Dist., 2009 WL
1034993 (E.D. Cal. 2009)) (noting that the facts of the case are critical). The IHO next looked
for guidance in the IDEA and its implementing regulations but found none. Hill v. District of
Columbia, No. 14-CV-1893 (GMH), 2016 WL 4506972, at *19 (D.D.C. Aug. 26, 2016) (noting
no guidance as to “unnecessary delay” in the IDEA and its regulations). The IHO looked then
for case law to interpret the IDEA’s requirement of “prompt resolution of disputes involving the
educational placement of learning-disabled children.” HOD, ECF No. 13-1, at 13. The IHO
noted that undue delay that constitutes a procedural violation of the IDEA must have “affected
the student’s substantive rights” to be a denial of FAPE. Smith v. District of Columbia, Civil
Action No. 08-2216, 2010 W.L. 4861757, at *4 (D.D.C. Nov. 30, 2010). The IHO noted that
“[a] delay does not affect substantive rights if the student’s education would not have been
different had there been no delay.” HOD, ECF No. 13-1, at 13 (citing D.R. ex rel Robinson v.
Gov’t of Dist. of Columbia, 637 F. Supp. 2d 11, 18 (D.D.C. 2009)). In contrast, “[a] delay of
more than 2-3 months is likely fatal to the [school] district’s case, although the exact length will
depend on the circumstances rather than being a bright-line test.” HOD, ECF No. 13-1, at 14
(citing Hill v. District of Columbia, No. 14-cv-1893 (GMH), 2016 WL 4506972, at *19 (D.D.C.
Aug. 26, 2016)).
In this case, Plaintiff contends that the request for an IEE was initially made on January
19, 2022, and again on February [7], 2022, but DCPS did not make its position known until
February 10, 2022, which is 22 days after the initial request and “constitute[s] unnecessary
delay.” Pl’s P&A, ECF No. 15-1, at 9-10. Plaintiff does not cite to any case law establishing
that a 22-day period (if even applicable here since Plaintiff’s initial request was directed to Eliot-
Hine when K.B. was no longer a student there) constitutes “unnecessary delay.”
11 On February 7, 2022, Plaintiff emailed Coolidge – where K.B. was enrolled as of February
2, 2022, AR at 273-275 – to request that DCPS fund an IEE. AR at 287. Plaintiff’s request did
not identify any specific testing or assessments for K.B. Id. Three days later, DCPS responded
and issued an authorization letter for Plaintiff to obtain an independent comprehensive
psychological evaluation, and DCPS issued also a second letter for Plaintiff to obtain
independent speech language and assistive technology assessments. Id. at 278, 280. Plaintiff
acknowledged receipt of these two February 2022 letters (although the second letter was not
received by Plaintiff until March 16, 2022), and she admitted she never used them to have K.B.
independently evaluated. Id. at 679-680.
DCPS convened an IEP meeting in March 2022, and at that time offered to conduct an OT
assessment and an FBA, both of which needed to be done at Coolidge. AR at 282. These
assessments were not completed because K.B. became ill shortly after enrolling at Coolidge in
February 2022, and the student did not attend school in March, April, or May 2022. Id. at 671-
672. In June 2022, DCPS issued a third authorization letter in June 2022, which permitted
Plaintiff to obtain an independent OT assessment in addition to the comprehensive
psychological, speech language, and assistive technology testing. Id. at 300. Plaintiff indicated
that she received the June 2022 authorization letter but “took no action to obtain any of the
assessments that DCPS has already authorized.” HOD, ECF No. 13-1, at 14; AR at 679-680. By
way of explanation, Plaintiff asserts that she was “advocat[ing] for a complete IEE, not just
funding for several assessments.” Pl.’s Reply, ECF No. 20, at 2. Ms. Thom testified that there
were no additional requests for assessments made by Plaintiff after the issuance of the June 2022
letter. AR at 713, 726.
After examining the facts of this case, the IHO concluded that “authorization for
12 independent assessments that DCPS provided Petitioner . . . were provided promptly without
unnecessary delay and that those assessments satisfied the requirements pursuant to 34 C.F.R.
300.602.” HOD, ECF No. 13-1, at 14. Furthermore, the IHO noted that he “did not find the case
law cited [by Petitioner, in support of her position that the requested IEE was not provided] to be
on point.” Id. Finally, he stated that “the other actions that Petitioner asserts are to be taken in
an IEE are actions DCPS cannot and will not take, including conducting a review of the
assessment data, until Petitioner has taken action to obtain the independent assessments that have
already been authorized.” Id. Accordingly, the IHO concluded that Petitioner did not sustain
her burden of proof.
The undersigned finds that the IHO’s conclusion that DCPS did not act with unreasonable
delay in responding to the Plaintiff’s IEE request and that K.B. was not denied a FAPE is
supported by the factual record and applicable law. DCPS responded promptly to Plaintiff’s
request and subsequently attempted to collaborate with the Plaintiff on the parameters of the IEE,
even during the time that K.B. was out of school for a three-month period. And Plaintiff
admittedly took no actions to effectuate any of the authorized testing for K.B. Accordingly, the
HOD is upheld regarding this issue.
B. Did DCPS refuse to authorize a sufficient IEE?
Pursuant to 34 C.F.R. §300.303(a), “a [local education] agency shall ensure that a
reevaluation of each child with a disability is conducted . . . if the child’s parent or teacher
requests a reevaluation” and that the reevaluation must be conducted at least once every three
years. Pursuant to 34 C.F.R. § 300.304(c), a school district must ensure that a student has
been appropriately evaluated in all areas of suspected disability. The IHO considered these
regulations and looked also at regulations governing the evaluation process, including what
13 information needs to be gathered to determine the content of the IEP and what needs to be
done during an initial evaluation or reevaluation. See HOD, ECF No. 13-1, at 15. The
evaluators shall use “a variety of assessment tools and strategies [to] gather relevant
functional and developmental information about the child, including information provided by
the parent, and information related to enabling the child to be involved in and progress in the
general curriculum[.]” D.C. Mun. Regs. Title 5E § 30005.9(b). All areas “related to the
suspected disability” should be assessed, D.C. Mun. Regs Title 5E § 30005.9(g), and the
evaluations must be “sufficiently comprehensive to identify all of the child’s special
education and services needs.” D.C. Mun. Regs Title 5E § 30005.9(h).
The IHO then noted that DCPS did a triennial evaluation in this case, in December 2020,
while K.B. was enrolled at Eliot-Hine, AR at 193, and he concluded that “[t]here was no
evidence presented including testimony, that sufficiently supports a finding that DCPS’s
reevaluation was inappropriate,” although he did note that Petitioner opined that there was
little data available to the school because of the virtual learning due to the pandemic. HOD,
ECF No. 13-1, at 15. The IEP team reviewed K.B.’s classroom-based assessments, first
semester IEP progress report, a September 2020 IReady beginning of the year assessment, a
December 2019 Reading Inventory Assessment, classwork samples, previous IEPs, and
parental input. AR at 195-198, 205. DCPS points out that while Plaintiff argues that the
reevaluation was incomplete and “lists several items that were not included” therein, Pl’s
P&A, ECF No. 15-1, at 18-19, that list also “includes items that were considered by the IEP
team” such as classroom-based assessments in math and reading, work samples in written
expression, teacher observations, and current IEP progress reports. Def.’s CMSJ, ECF No.
16, at 20-21. Looking at the record in this case, there is no indication that the IEP team did
14 not analyze existing data during the reevaluation. And while, for example, Plaintiff points to
the failure to analyze vision or hearing screening, there is no suggestion that analysis of this
data would have affected the determination of special education for K.B. (insofar as there is
no indication of any issue with vision or hearing either in the record or alleged by Plaintiff).
The IEP team determined that K.B. remained eligible for special education under the
classification Other Health Impairment/ADHD. Id. at 201. The IHO looked at the data that
was considered during the reevaluation and concluded that such reevaluation was
“appropriate and sufficient to determine Student’s continued eligibility for special education
services.” HOD, ECF No. 13-1, at 16. DCPS notes that [t]here is no evidence that Plaintiff
requested any additional assessments after the team made this determination.” Def.’s CSMJ,
ECF No. 16, at 20; see AR at 9, 16; see also 34 C.F.R. § 300.305(d). “Nor does Plaintiff
identify any evidence to rebut the hearing officer’s finding that she did not request for the
team to conduct additional assessments in these areas, or any areas, once the IEP team
reviewed existing data.” Def.’s CMSJ, ECF No. 16, at 21, see AR at 9 (Finding of Fact No.
6). Accordingly, upon review of the HOD and the record in this case, the Court concludes
that the IHO’s decision on this issue should be upheld as it is supported by substantial record
evidence and is in accordance with the law.
Furthermore, while Plaintiff asserts that DCPS should bear the burden of proving the
appropriateness of the reevaluation, Pl.’s P&A, ECF No. 15-1, at 17-18; Pl.’s Reply, ECF
No. 20, at 4, the IDEA only requires an LEA to justify the appropriateness of its own
evaluation via its due process complaint if it refuses to authorize an IEE, and that was not the
situation here. See 34 C.F.R. §502(b)(2)(i); HOD, ECF No. 13-1, at 16 (where the IHO
asserted that “DCPS is only required to defend the validity of its evaluation when it has failed
15 to timely respond to a requested IEE pursuant to 34 CFR 300.502” and noted that was not the
case here). It is Plaintiff who bears the burden of proof on this claim because she challenged
the appropriateness of the reevaluation. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62
(2005); D.C. Code Section 38-2571.03(6). Accordingly, the Court upholds also the IHO’s
determination that Plaintiff failed to sustain her burden of proof on this issue.
C. Was DCPS’s failure to provide a “SEDS document Index” a substantive denial of FAPE?
In this case, Plaintiff requested a copy of K.B.’s educational records on February 10, 2022.
AR at 391. On April 7, 2022, DCPS provided the majority of K.B.’s educational records in a zip
file. Id. at 307. In June 2022, DCPS provided K.B.’s fourth quarter service trackers and IPE
progress reports (which were developed after April 7, 2022), and in July 2022, K.B.’s enrollment
documents were provided. Id. at 715, 474. Ms. Thom testified that the delay in providing
enrollment documents was attributable to the registrar being on leave. AR at 716. During the
hearing, Defendant acknowledged that the “SEDS Document Index” had not been provided to
Plaintiff, and Plaintiff agreed that this was the only educational record that had not been provided.
AR at 626, 725, 730-731.
IDEA regulations provide parents and legal representatives an opportunity to inspect and
review all education records with respect to the identification, evaluation, and educational
placement of the student and provision of FAPE to a student. See 34 C.F.R. §300.501(a);
Friendship Edison Public Charter School Collegiate Campus v. Murphy, Civil Action No. 05-
2109 (RMU), 2006 WL 2711524, at *4 (D.D.C. 2006). DCPS must permit parents to inspect and
review any educational records relating to their children that are collected, maintained, or used
by the agency. See 34 C.F.R. §300.613(a). Pursuant to the District of Columbia Municipal
16 Regulations (“DCMR”), DCPS must honor the records request as soon as possible, but in no case
more than 45 calendar days, 5E DCMR §2600.6, and failure to timely comply with a parent’s
request to inspect educational records is a procedural violation of the IDEA. N.P. v. E. Orange
Bd. of Educ., No. CIV. 06-5130 DRD, 2011 WL 463037, at *7 (D.N.J. Feb. 3, 2011).
If a procedural violation is alleged, a hearing officer may find that a child did not receive
FAPE only if the procedural inadequacies impeded the child’s right to a FAPE, significantly
impeded the parent’s opportunity to participate in the decisionmaking process on provision of
FAPE, or caused the child to be deprived of educational benefits. An IDEA claim is “viable
only if [the] procedural violations affected the student’s substantive rights.” Lesesne v. District
of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006).
The IHO found that DCPS provided Plaintiff’s counsel with K.B.’s educational records apart
from a document sometimes referred to as a “SEDS document index.” HOD, ECF No. 13-1, at
17. The IHO agreed that Plaintiff made a “legitimate argument that such a document has been
provided by DCPS in other instances.” Id. As such, the IHO directed that DCPS provide
Plaintiff with this list so that she could be sure she had been provided all educational records.
The IHO did not, however, find that non-production of this list was anything other than a
procedural violation. The IHO found that “there was insufficient evidence that DCPS[‘s] [failure
to provide a SEDS index] significantly impeded Petitioner’s opportunity to participate in the
decision-making process regarding the provision of a FAPE to Student or caused Student a
deprivation of educational benefits.” HOD, ECF No. 13-1, at 17. Accordingly, the IHO
concluded that while Petitioner sustained the burden of persuasion on this issue, there was no
denial of FAPE. Id. at 16.
The Court has reviewed the argument proffered by Plaintiff in support of her contention that
17 non-provision of the SEDS index resulted in a substantive violation. See generally Pl.’s P&A,
ECF No. 15-1, at 23-25. This Court finds that while Plaintiff makes conclusory statements about
procedural violations rising to the level of substantive violations, and statements regarding the
general importance of the SEDS index, Plaintiff does not identify any way in which DCPS’s
actions deprived K.B. of educational rights or impeded Plaintiff from participating in the
educational process attributable to the SEDS index. Nor was there any testimony by Plaintiff
during her direct examination regarding K.B.’s educational records. Accordingly, Plaintiff has
failed to demonstrate the DCPS’s omission of the SEDS index from the records produced
affected K.B.’s education in any way. Lattisaw v. District of Columbia, No. 1:22-CV-510, 2023
WL 3719814, at *3 (D.D.C. May 30, 2023) (citations omitted). Moreover, Plaintiff has not
carried the burden of demonstrating a substantive violation, and as such, the Court upholds the
IHO’s findings on this issue, which are supported by the record evidence and statutory authority.
D. Did DCPS violate the HOD?
In the August 29, 2022 HOD, the IHO directed that “DCPS, within ten (10) business days of
the issuance of this order [ ] provide Petitioner the list of documents for Student available
through SEDS, sometimes referred to as the SEDS document index.” HOD, ECF No. 13-1, at
17. Plaintiff acknowledges that “[o]n or about September 9, 2022, DCPS provided Plaintiff with
a list of documents that DCPS had developed” but argues that it was not a copy of the SEDS
document index. Pl.’s P & A, ECF No. 15-1, at 26 (referencing a comparison of a SEDS
document with what was provided). DCPS labels this claim as “baseless” and explains that:
As explained by [Ms.] Thom, the SEDS database cannot generate a “SEDS Document Index.” ¶¶ 8-9. And instead of saving or printing multiple screenshots of the documents viewable in the system, which could provide an incomplete, and possibly inaccurate accounting of the documents that are included in the student’s file, Thom manually reviewed [the] student’s entire profile in SEDS and then created a document identifying and listing every document maintained in SEDS for K.B. during his time with DCPS, which she 18 provided to Plaintiff’s counsel. ¶¶ 10-13.
Def.’s CMSJ, ECF No. 16, at 23-24. DCPS asserts, and this Court agrees, that this document
produced by DCPS satisfies the directive in the HOD, which ordered the provision of a “list of
documents for student available through SEDS, sometimes referred to as the SEDS document
index.” Accordingly, this claim by Plaintiff is denied.6
IV. CONCLUSION
The Court has reviewed the four claims set forth by Plaintiff, which challenge the IHO’s
findings in his HOD. As explained herein, regarding each claim, the Court has found that the
IHO made specific and reasoned findings that were based on the factual record and consistent
with relevant legal authority. Accordingly, Plaintiff’s Motion for Summary Judgment shall be
denied, and Defendant’s Cross Motion for Summary Judgment shall be granted. A separate
Order accompanies this Memorandum Opinion.
____________/s/__________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
6 DCPS notes in its CMSJ, ECF No. 16, at 23, that Plaintiff seeks enforcement of the HOD, but 20 U.S.C. §1415(i)(2)(A) “does not provide a cause of action to enforce school district compliance with a hearing officer’s decision.” B.D. v. District of Columbia, 817 F.3d 792, 803 (D.C. Cir. 2016). Because the Court finds that Plaintiff’s claim is without merit, the Court need not address whether Plaintiff has adequately raised this claim in her Complaint, pursuant to her mention of 42 U.S.C. §1983. 19