UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) W.S., et al., ) ) Plaintiffs, ) ) v. ) No. 19-cv-1390 (KBJ) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )
MEMORANDUM OPINION
W.S. is an elementary school student who is eligible for special education
services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq. (See Redacted Compl. (“Compl.”), ECF No. 17, ¶¶ 6, 11, 35.) 1 On May
14, 2019, W.S. and his parents, W.S. and E.S. (collectively, “Plaintiffs”), filed the
instant action against the District of Columbia, challenging the decision of a Hearing
Officer at the Office of the State Superintendent of Education (“OSSE”), who denied
Plaintiffs’ request for funding and placement at a specific private school on the ground
that the District of Columbia Public Schools system (“DCPS”) and OSSE had provided
W.S. an appropriate educational placement under the IDEA. (See id. ¶¶ 52, 82–110; see
also Sealed Compl., ECF No. 1.) In their three-count complaint, which seeks tuition
reimbursement for the year W.S. attended Plaintiffs’ preferred school, Plaintiffs allege
that (1) DCPS and OSSE denied W.S. a “free appropriate public education” for the
school year at issue, in violation of the IDEA (see Compl. ¶ 113), (2) the Hearing
1 Page number citations refer to the numbers automatically assigned by the Court’s electronic case filing system. Officer failed to “order [DCPS and OSSE] to place and fund W.S. in an appropriate
program and placement” (see id. ¶ 115), and (3) the Hearing Officer “violated
[P]laintiffs’ due process rights . . . by failing to render a proper decision based on an
accurate and impartial understanding of the facts” (see id. ¶ 117), and “by failing to
apply correct legal standards” (id. ¶ 118).
On May 16, 2019, this Court referred this matter for random assignment to a
Magistrate Judge for full case management. (See Min. Order of May 16, 2019.) The
case was assigned to Magistrate Judge Deborah Robinson, and the parties subsequently
filed cross-motions for summary judgment. (See Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”),
ECF No. 10; Def.’s Cross-Mot. for Summ. J. (“Def.’s Cross-Mot.”), ECF No. 11.)
Before this Court at present is Magistrate Judge Robinson’s Report and
Recommendation regarding the parties’ cross-motions for summary judgment, as well
as the District of Columbia’s objections thereto. (See R. & R., ECF No. 20; Def.’s
Objs. to R. & R. (“Def.’s Objs.”), ECF No. 21; see also Pls.’ Reply to Def.’s Objs.,
ECF No. 23.) 2 The Court has carefully reviewed the Report and Recommendation, the
parties’ submissions, and the record evidence, and for the reasons discussed below, the
Court will ADOPT Magistrate Judge Robinson’s Report and Recommendation in full.
Accordingly, Plaintiffs’ motion for summary judgment will be GRANTED IN PART,
and only insofar as Plaintiffs request further administrative proceedings to determine
whether the school at which DCPS and OSSE placed W.S. could manage students with
aggressive behaviors. Defendant’s cross-motion for summary judgment will be
2 The Report and Recommendation, which is 27 pages long, is attached hereto as Appendix A.
2 DENIED WITHOUT PREJUDICE, and with the understanding that Defendant may
file a renewed summary judgment motion after the Hearing Officer has determined (1)
whether W.S.’s aggressive behaviors could have been accommodated in the educational
setting that DCPS and OSSE assigned, and if not, (2) whether Plaintiffs are entitled to
tuition reimbursement for the year W.S. attended Plaintiffs’ preferred school. A
separate Order consistent with this Memorandum Opinion will follow.
I. BACKGROUND
W.S. began receiving special education services in pre-kindergarten, after
exhibiting behavioral issues and developmental delays. (See Def.’s Resp. to Pls.’
Statement of Undisputed Material Facts, ECF No. 11-1, ¶¶ 3–5.) Although W.S. made
substantial progress during the beginning of the following school year, he started to
express himself in increasingly violent and aggressive ways, and his academic
performance soon took a turn for the worse. (See id. ¶¶ 7–13.) In response, W.S.’s
parents retained a pediatric specialist to evaluate W.S. and to help craft a new
Individualized Education Plan (“IEP”) for him. (See id. ¶¶ 14–15, 17.) After
conducting a neurodevelopmental exam, the specialist diagnosed W.S. with Autism
Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and an anxiety disorder,
and recommended that he be placed in a “highly structured” program that uses
“evidence-based, specialized teaching and behavioral strategies to support his social,
emotional-behavioral, and learning needs.” (Id. ¶ 17.) Building on the specialist’s
evaluation and report, W.S.’s parents worked with an educational consultant and DCPS
to develop a new IEP, which called for a “full-time special education placement[.]”
(See id. ¶¶ 18–19.) W.S.’s parents asked that W.S. be placed at The Auburn School, but
3 OSSE rejected their request, because The Auburn School lacked a certificate of
approval. (See id. ¶ 22.) OSSE instead placed W.S. at The Children’s Guild (see id.
¶ 32), a school that W.S.’s parents and their educational consultant deemed inadequate
(see id. ¶¶ 24–26). W.S.’s parents subsequently enrolled W.S. in The Auburn School,
notwithstanding OSSE’s decision, and filed an administrative complaint seeking to
compel “OSSE and/or DCPS [to] fund [W.S.’s] placement there.” (See id. ¶¶ 33, 35.)
The parties then presented arguments and witnesses to a Hearing Officer at
OSSE, who ultimately dismissed Plaintiffs’ complaint with prejudice. (See Hearing
Officer Determination, Administrative R., ECF No. 7-1, at 21.) The Hearing Officer
concluded that Plaintiffs had not established a prima facie case that W.S. had been
denied a free appropriate public education, and that, in any event, DCPS and OSSE had
demonstrated that The Children’s Guild was an appropriate placement for W.S. (See id.
at 19–20.) Given those determinations, the Hearing Officer did not address whether
The Auburn School was a proper placement, or whether the equities favored
reimbursing Plaintiffs for W.S.’s enrollment there.
Following the Hearing Officer’s decision, Plaintiffs initiated the instant action
against the District of Columbia, and the parties then filed cross-motions for summary
judgment. Plaintiffs argue in their motion that the Hearing Officer incorrectly
determined that they did not establish a prima facie case and erroneously found that
DCPS and OSSE had offered W.S. an appropriate placement. (See Pls.’ Mot. at 13–21.)
Plaintiffs also contend that the Hearing Officer failed to consider W.S.’s unique needs
as a twice-exceptional student, improperly weighed the testimony of the parties’
witnesses, and inappropriately concluded that W.S.’s parents had acted in bad faith.
4 (See id. at 21–34.) In addition, Plaintiffs assert that The Auburn School is a proper
placement for W.S., and that he “should be placed and funded there” as a result. (See
id. at 34–37.) For its part, the District of Columbia maintains that the Hearing Officer’s
determination was correct, and that DCPS and OSSE provided W.S. a free appropriate
public education in compliance with the IDEA. (See Def.’s Cross-Mot. at 16–37.)
After the parties finished briefing their cross-motions for summary judgment,
Plaintiffs informed the Court that the District of Columbia had assigned W.S. a
different placement for the following school year, and that they were no longer seeking
to compel DCPS and OSSE to place W.S. at The Auburn School. (See Pls.’ Notice
Regarding Relief Sought, ECF No. 16.) Plaintiffs clarified, however, that they
“continue to seek full reimbursement” for the year that W.S. attended school there.
(See id.)
On August 17, 2020, Magistrate Judge Robinson issued a Report and
Recommendation on the parties’ cross-motions for summary judgment, addressing only
whether the Hearing Officer properly determined that The Children’s Guild was an
appropriate placement under the IDEA. (See R. & R. at 27; see also id. at 8 n.2
(explaining that the Report and Recommendation would not discuss whether The
Auburn School was a proper placement given Plaintiffs’ representation that they no
longer sought placement there).) After reviewing the parties’ arguments on that issue
and examining the administrative record, Magistrate Judge Robinson recommends that
Plaintiffs’ motion be granted, and that Defendant’s cross-motion be denied. (See id. at
27.) Specifically, Magistrate Judge Robinson finds that the Hearing Officer “applied a
more stringent standard” than appropriate when evaluating whether Plaintiffs had
5 established a prima facie case that W.S. had been denied a free appropriate public
education. (See id. at 15–17.) Magistrate Robinson also finds that the Hearing Officer
did not “adequately address” whether The Children’s Guild could properly manage
W.S.’s aggressive behaviors. (See id. at 25–27.) According to Magistrate Judge
Robinson, the Hearing Officer failed to make any findings or conclusions about this
issue, despite the fact that W.S.’s aggressive behaviors “were a central part” of his IEP
(see id. at 25), and The Children’s Guild could qualify as an appropriate placement
under the IDEA only if it was able to “substantially implement[]” the part of W.S.’s IEP
that required management of such behaviors (see id. at 15 (internal quotation marks and
citation omitted)). Magistrate Judge Robinson further concludes that, even though
various pieces of evidence in the record could theoretically support a finding that The
Children’s Guild was capable of managing W.S.’s aggression, such evidence is
“contradictory and unreliable” at best. (See id. at 25–27.)
With respect to Plaintiffs’ remaining challenges to W.S.’s placement at The
Children’s Guild, Magistrate Judge Robinson’s Report and Recommendation concludes
that the Hearing Officer properly resolved the dispute in the District of Columbia’s
favor, because, apart from the issue of W.S.’s aggressive behaviors, “Plaintiffs’
purported requirements” for an appropriate educational placement “were not contained
within W.S.’s IEP” (see id. at 18), and thus “cannot form the basis of an educational
placement challenge” under the IDEA (see id. at 19). Magistrate Judge Robinson
additionally finds that the Hearing Officer’s credibility determinations were reasonable
(see id. at 21); that the record supports the Hearing Officer’s conclusions, except with
respect to The Children’s Guild’s ability to manage W.S.’s aggressive behaviors (see id.
6 at 23); and that, contrary to Plaintiffs’ assertions otherwise, the Hearing Officer did not
find that W.S.’s parents had acted in bad faith (see id. at 22 n.6). Based on these
findings and conclusions, Magistrate Judge Robinson recommends that the case be
remanded to OSSE for further proceedings to determine whether The Children’s Guild
could have accommodated W.S.’s aggressive conduct. (See id. at 27.)
In addition to articulating these findings and conclusions, Magistrate Judge
Robinson’s Report and Recommendation advises the parties that they may file written
objections to the Report and Recommendation, which must include “the portions of the
findings and recommendations to which objection is made and the basis of each such
objection.” (See id.) The Report and Recommendation also advises the parties that
“[i]n the absence of timely objections, further review of issues addressed [in the Report
and Recommendation] may be deemed waived.” (Id.)
The District of Columbia timely filed its objections to the Report and
Recommendation on August 31, 2020, challenging only Magistrate Judge Robinson’s
conclusion that the Hearing Officer failed to address adequately The Children’s Guild’s
ability to accommodate W.S.’s aggressive behaviors. (See Def.’s Objs. at 1.)
According to the District of Columbia, the Hearing Officer did make findings on this
issue: in its decision, the Hearing Officer expressly noted that The Children’s Guild
offers “formalized plans to improve behaviors” and “provides a culture that reinforces
positive behavior and downplays negative [conduct.]” (Id. at 2 (internal quotation
marks and citation omitted).) The District of Columbia also maintains that the record
fully supports its cross-motion for summary judgment, as the evidence demonstrates
that The Children’s Guild could have managed W.S.’s aggressive behaviors through
7 “‘individually targeted’” behavior plans. (See id. at 3–5 (quoting R. & R. at 24–25).)
As a result, the District of Columbia asks this Court to reject the portion of the Report
and Recommendation concerning The Children’s Guild’s capacity to handle W.S.’s
aggression, and to grant summary judgment in the District’s favor. (See id. at 6.)
II. DISCUSSION
This Court concludes that this matter must be remanded to OSSE for further
administrative proceedings, because the Hearing Officer did not sufficiently address
whether The Children’s Guild could manage W.S.’s aggressive behaviors. Moreover, as
such, the Hearing Officer had no occasion to determine whether Plaintiffs were entitled
to tuition reimbursement for the year W.S. attended The Auburn School.
To qualify for tuition reimbursement under the IDEA, a plaintiff must demonstrate that
(1) the “school district failed to provide a [free appropriate public education,]” (2) the
plaintiff’s “private placement was suitable,” and (3) the equities warrant “reimbursement for
some or all of the cost of the child’s private education[.]” See Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230, 247 (2009). The first prong of this test—which is the only prong that the
Hearing Officer and Magistrate Judge Robinson addressed—focuses on whether the school
district’s educational placement could have implemented “substantial or significant
provisions” of the student’s IEP. See, e.g., Johnson v. District of Columbia, 962 F. Supp. 2d
263, 268 (D.D.C. 2013) (internal quotation marks and citation omitted). That question, in
turn, depends on the goals or requirements that the student’s IEP sets forth, and the ability of
the educational placement to fulfill such goals or requirements. See O.O. ex rel. Pabo v.
District of Columbia, 573 F. Supp. 2d 41, 53 (D.D.C. 2008).
In the instant case, there is no question that W.S.’s aggressive behaviors were an
8 integral component of his IEP, as Magistrate Judge Robinson concluded; indeed, these
behaviors were the driving force behind his change in schools, and W.S.’s IEP repeatedly
referenced the need to address his violent and aggressive outbursts. (See, e.g.,
Administrative R., ECF No. 8-4, at 17, 23–29.) Notwithstanding this crucial feature of
W.S.’s IEP, however, it appears that the Hearing Officer did not make any explicit
findings as to whether The Children’s Guild could manage W.S.’s aggression. (See
Hearing Officer Determination at 7–20.) Instead, the Hearing Officer focused on the
school’s general ability to develop and implement individualized behavior programs (see
id. at 12, 17–18), and highlighted statements in a brochure about The Children’s Guild’s
outpatient clinic, which helps “children and their families” with “anger, aggressiveness
and other behavioral problems” (see Hearing Officer Determination at 12 ¶ 11;
Administrative R., ECF No. 7-6, at 42).
Because the outpatient clinic at The Children’s Guild is a separate program from
the school (see Administrative R., ECF No. 7-6, at 42), and because the Hearing Officer’s
findings say nothing about the school’s ability to accommodate the specific behavioral
problems mentioned in W.S.’s IEP, the Court agrees with Magistrate Judge Robinson’s
conclusion that the Hearing Officer did not make a determination that was sufficient to
support a finding that The Children’s Guild was an appropriate placement for W.S. And
this is so even though the record contains some evidence suggesting that The Children’s
Guild might have been able to manage students with aggressive and violent behaviors,
because there is other record evidence that cuts in the opposite direction. For example,
one witness explained that The Children’s Guild has worked with students exhibiting
aggressive behaviors in the past (see Administrative R., ECF No. 9-8, at 21), while other
9 witnesses suggested that The Children’s Guild does not generally accept students with
serious aggressive behaviors (see Administrative R., ECF No. 9-5, at 47; Administrative
R., ECF No. 9-7, at 37). In the absence of any findings that resolve these discrepancies,
the Hearing Officer could not adequately determine whether The Children’s Guild was
an appropriate placement under the IDEA. Moreover, even if the Court were to assume
for purposes of analysis that The Children’s Guild was not an appropriate placement for
W.S., the record does not contain sufficient information to permit the Court to assess
whether Plaintiffs are entitled to the tuition reimbursement that is the object of their
complaint. The Hearing Officer did not discuss whether The Auburn School was a proper
placement under the IDEA, and neither the Hearing Officer nor the parties have addressed
whether the equities warrant tuition reimbursement. See Forest Grove Sch. Dist., 557
U.S. at 247.
Accordingly, the Court concludes that this matter should be remanded to OSSE,
where the Hearing Officer can make the necessary findings in the first instance. See, e.g.,
M.O. v. District of Columbia, 20 F. Supp. 3d 31, 41 (D.D.C. 2013) (remanding an IDEA
case to the hearing officer for further consideration of the evidence). In the meantime,
the Court will adopt the unobjected to analysis and conclusions of the Report and
Recommendation concerning Plaintiffs’ other challenges to the District of Columbia’s
school placement decision—conclusions of the Magistrate Judge with which the Court
fully agrees—and will grant in part Plaintiffs’ motion for summary judgment, to the
extent that Plaintiffs have demonstrated that the Hearing Officer’s placement
determination is not fully supported because it lacks an administrative finding concerning
The Children’s Guild’s ability to manage W.S.’s aggressive behaviors.
10 III. CONCLUSION
For the reasons discussed above, and as set forth in the separate Order that
accompanies this Memorandum Opinion, the Court will ADOPT Magistrate Judge
Robinson’s Report and Recommendation in its entirety. Accordingly, Plaintiffs’
Motion for Summary Judgment (ECF No. 10) will be GRANTED IN PART, and only
insofar as it has demonstrated the need for further administrative proceedings regarding
the ability of The Children’s Guild to manage W.S.’s aggressive behaviors.
Defendant’s Cross-Motion for Summary Judgment (ECF No. 11) will be DENIED
WITHOUT PREJUDICE, and with the understanding that Defendant may file a
renewed summary judgment motion after the Hearing Officer has determined whether
The Children’s Guild could have accommodated W.S.’s aggressive behaviors as his IEP
required, and, if not, whether Plaintiffs are nonetheless entitled to tuition
reimbursement. This matter will therefore be REMANDED to OSSE for further
proceedings regarding whether The Children’s Guild could have managed W.S.’s
aggressive conduct, and whether Plaintiffs must be reimbursed for the year W.S.
attended The Auburn School. Should the Hearing Officer determine on remand that The
Children’s Guild could have accommodated W.S.’s aggression, and thus that no
alternative placement was warranted, the Court recommends that the Hearing Officer
nevertheless make alternative findings about Plaintiffs’ entitlement to reimbursement,
in order to facilitate an expedient resolution of the case in the event that the parties
appeal the Hearing Officer’s decision.
DATE: November 12, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge
11 Appendix A
W.S., et al.,
Plaintiffs,
v. Civil Action No. 19-1390 KBJ/DAR DISTRICT OF COLUMBIA,
Defendant.
REPORT AND RECOMMENDATION
W.S. and parents, W.S. and E.S., commenced this action for injunctive and
U.S.C. §§ 1400 et seq., seeking judicial review of a final decision of the District of Columbia
Office of the State Superintendent of Education with respect to W.S., a student who is eligible
for special education and related services. See Complaint for Declaratory Judgment & Injunctive
7) at 1. In their Complaint, Plaintiffs claim that the
denying W.S. a free
by
placement for W.S. for the 2018-19 school ye Id.
Pending for consideration by the undersigned United States Magistrate Judge are the
See
s Motion for
Summary Judgment and Opposition to
Upon consideration of the motions, the memoranda in support thereof Appendix A W.S., et al., v. District of Columbia
and in opposition thereto, and the entire administrative record, the undersigned will recommend
that Motion be granted, Motion be denied.
A. Factual Background
W.S., a student who resides in the District of Columbia, has been diagnosed with Autism
- Combined Type
.1 See (ECF Nos. 7, 8, 9) at
345, 1154-57. W.S. is eligible for services under the IDEA as a student with Autism. Id. at 355,
1159.
W.S. attended pre-Kindergarten at Creative Minds International Public Charter School
. Id. at 1152. Creative Minds helped to draft an IEP for
W.S. which called for a dedicated Id. at 1260, 1263. In
Dr. Laura
Solomon, an educational consultant, to reevaluate W.S. for special education services. Id. at
1152-53.
For the 2016-17 and 2017-18 school years, W.S. attended Janney Elementary School
Id. at 1154-55. During the 2016-17 school year, W.S.
continued to have a dedicated aide and made progress according to several measures. Id. at 328,
439, 1155, 1261. Starting in the next school year, however, W.S. began to exhibit behavioral
problems, which included throwing objects, spitting, name-calling, and pushing. Id. at 328, 697-
1 With the exception of the Administrative Record and any document without page numbering automatically he undersigned cites to the page numbers
ECF-generated page numbers, the undersigned uses the page numbering provided by the parties.
2 Appendix A W.S., et al., v. District of Columbia
99, 1173. W.S.
and attempting to poison others. Id. at 697.
school year, W.S. still exhibited these behaviors. Id. at 713.
suffered. Id. at 713, 735-40.
another educational consultant, Dr. Rosebeth Marcou,
to evaluate W.S. Id. at 326-50. In a report dated June 1, 2018, Dr. Marcou diagnosed W.S. with
ASD, ADHD, and an Anxiety Disorder after completing a document review, classroom
observation, and testing of W.S. Id. Questionnaires from teachers revealed that W.S. was
imaginative and curious, but that attention and behavioral issues interfered in the classroom. Id.
at 331-
could be impulsive and aggressive towards others. Id. at 335-40. On the KBIT-2 Kaufman Brief
Intelligence Test, W.S. scored a 123 composite IQ score. Id. at 343. Dr. Marcou recommended
that the IEP be adapted
Id. at 346.
education program must include classmates with similar language and cognitive profiles (i.e.
Id.
On June 4, 2018, the IEP team reconvened to determine an IEP for the coming 2018-19
school year. Id. at 712. In reviewing the record, the IEP concluded that W.S. required a full-
time special education placement. Id. at 729-31. The District of Columbia Office of the State
subsequently convened ent on July 18,
2018. Id. at 1165-66, 1269. At the meeting, Dr. Solomon requested
3 Appendix A W.S., et al., v. District of Columbia
consideration of the Auburn School, but OSSE did not consider the Auburn School because it did
not have a certificate of approval. Id. at 381, 393, 1271. On July 30, 2018, OSSE identified
three other potential schools for W.S., Id. at 383. Dr.
Solomon Id. at
382.
pa . Id. at 1272-
mother concluded that it was not an appropriate school for W.S. because, on her visit, she
perceived a lack of verbal interactions between students and teachers, and observed that the
students there were lower functioning and more non-verbal than W.S. Id. at 1273-76. Based on
Id. at 1278.
Of the three potential schools that OSSE identified, W.S. was accepted only at The
Id. at 380-82. After visiting the Auburn School and arranging for W.S. to
attend a summer program there for W.S. to attend the Auburn School
for the 2018-19 school year. Id. at 440, 1280. On August 10,
-19 school year, which provided for placement at The
Id. at 386, 388. notified DCPS and OSSE
that W.S. would attend the Auburn School for the 2018-19 school year. Id. at 385. On August
13, 2018, DCPS declined to fund placement at the Auburn School and asserted that DCPS had
Id. at 394.
sought funding for W.S. to attend the Auburn School for the 2018-19 school year. Id. at 313.
4 Appendix A W.S., et al., v. District of Columbia
subsequently a
for which DCPS and OSSE did not assist. Id. at 405-07.
parents filed a motion with the Hearing Officer to permit such observation, which the Hearing
Officer granted. Id. at 416-21. Based on this observation, Dr. Solomon prepared a report
See id. at 612-24.
Specifically, Dr. Solomon observed that the proposed class for W.S. consisted of students in
Kindergarten through second grade, that staff did not engage in any behavior shaping or behavior
correcting even when students exhibited maladaptive or noncompliant behaviors, and that there
was no differentiation in instruction between students in different grades. Id. at 619-23. Dr.
Solomon also ldren with
aggressive behaviors[,] that
intervention plans,
Dr. Solomon did not observe the use of TEACCH in the classroom. Id. at 623-24.
Plaintiffs presented the testimony of four witnesses: Dr. Solomon, Dr. Marcou, Geoff
Wheeler, a behav Id. at 6, 23. Defendant
presented the testimony of Dr. Shellie Wood, the Special Education Coordinator and LEA
Representative at Janney Elementary. Id. OSSE presented the testimony of Katie Reda, a
special programs manager for OSSE. Id.
B. Summary of Hearing Officer Determination
The following issue was adjudicated by the Hearing Officer:
provide the Student with an appropriate school/location/placement for the 2018-19 school year?
AR at 6. 5 Appendix A W.S., et al., v. District of Columbia
In a 19-page the Hearing Officer discussed the
evidence presented during the administrative proceedings and articulated his findings. See id. at
4-22.
Id. at 13. In this case,
appropriate school,
notwithstanding the contrary reports Id. at
ers small classrooms, a culture that reinforces positive
behavior and downplays negative aspects, and the opportunity for the Student to have direct
Id. Moreover, the Hearing Officer credited other evidence from The
ich tended to show that the school individualizes its behavior plans for
there is average to above average, and that the school
uses TEACCH systems. Id. Thus, according to the Hearing Officer, Plaintiffs did not present a
prima facie case that Defendant failed to offer W.S. a FAPE for the 2018-19 year. Id. at 20.
Moreover, the Hearing Officer concluded, even if Plaintiffs did present a prima facie case,
Defendant met its burden of persuasion that it offered W.S. a FAPE. Id.
II. CONTENTIONS OF THE PARTIES
A. Motion
Plaintiffs argue that the Hearing Officer mistakenly concluded that Plaintiffs had not
established a prima facie case under the IDEA. Motion at 13. Under the law
establishing the burden-shifting framework and analogous precedents, Plaintiffs contend that
6 Appendix A W.S., et al., v. District of Columbia
extensive evidence submitted at the hearing, Plaintiffs easily meet this standard. Id. at 13-15.
Plaintiffs further maintain that the Hearing Officer erred in alternatively finding that
W.S. Id. at 16.
testified at the hearing, Defe
Guild or the facts of this case, and that the brochure upon which the Hearing Officer relied was
milar
name. Id. at 16-17. Plaintiffs contend that the Hearing Officer also ignored crucial evidence
Id. at 17-20.
-
educational placement, and that the Hearing Officer
failed to address this important factor. Id. at 20-22. Plaintiffs point to the testimony of
Plaintiff experts, who stated that W.S. exhibited high intelligence which needed to be
addressed in IEP and placement. Id. at 22-25. According to Plaintiffs, none of the
evidence upon which the Hearing Officer relied did not demonstrate that the program at The
could meet these unique needs. Id. at 25-27.
Id. at 27-28. Plaintiffs characterize the
mother as based on firsthand information about W.S.
questions. Id. at 28-30.
7 Appendix A W.S., et al., v. District of Columbia
parents acted in bad faith. Id.
-faith efforts throughout the
Id. at 31-34. Lastly, Plaintiffs argue that the Auburn
placement there should be granted.2
B. s Cross-
Defendant first argues that the Hearing Officer was correct to conclude that Plaintiffs did not
establish a prima facie
IDEA. Id. at 18. im is cognizable,
Id. at 19-21.
burden of per
the administrative record. Id. at 21. Defendant contends that Plaintiffs did not present sufficient
evidence that substantial
2 Plaintiff
for the 2018-2019 school year. Plain Thus, the undersigned omits any further discussion of the appropriateness of the Auburn School and whether Plaintiffs are entitled to placement there.
8 Appendix A W.S., et al., v. District of Columbia
implement the IEP. Id. at 21-24. Moreover,
addressed in the HOD. Id. at
22-30.
status . Id. at 30.
Defendant characterizes position as without support in the text of the IDEA or any
relevant caselaw. Id. at 30-33.
Defendant also maintains that the Hearing Officer is entitled to deference concerning how
much weight to give to various witness testimony and other evidence. Id. at 33. Defendant
argues that the Hearing Officer properly considered
explained the basis for how much weight to give various evidence. Id. at 33-37. Moreover,
Defendant maintains that, even if the Hearing Officer erred in making credibility determinations,
this was not a reversible error because it does not affect the central issue upon which no witness
Id. at 36.
C. Opposition and Reply
Motion, Plaintiffs argue that they allege a cognizable claim under the IDEA because, unlike the
cases upon which Defendant relies, Plaintiffs challenge the adequacy of the educational
pposition to
2-4. Thus,
according to Plaintiffs, the Hearing Officer erred in finding that Plaintiffs had not established a
prima facie case. Id. 9 Appendix A W.S., et al., v. District of Columbia
Plaintiffs also argue that D
Id. at 4-6. Plaintiffs maintain that
they could not have known their concerns until Dr. Solomon visited
Id. at 4-7. Plaintiffs contend that Defendant also
misunderstands the core issue at stake here, which is not simply whether
but includes whether W Id. at 7-12.
determinations some deference, Plaintiffs argue that the Hearing Officer offered no cogent
explanation of crediting some testimony over others and, moreover, no one testified that The
Id. at 13-14. Plaintiffs also argue that
Defendants, just like the Hearing -
Id. at 14-16.
D.
that Plaintiff did not establish a
prima facie because Plaintiffs
did not
-4. Moreover,
according to Defendant, even if Plaintiffs established a prima facie case, the Hearing Officer did
Id. at 5. 10 Appendix A W.S., et al., v. District of Columbia
Defendant mai
and investigate
. Id. at 5-6. Moreover, Defendant
asserts, the chronology does not support version of events because Plaintiffs
observation, and her observations were, in effect, critiques of the IEP,
Id. at 7.
be evaluated in the manner as an IEP. Id. at 8-10. Lastly, Defendant reiterates that the Hearing
Id. at 10-13.
III. STATUTORY FRAMEWORK
them 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
M.G. v. Dist. of Columbia, 246 F. Supp. 3d 1, 7 (D.D.C. 2017) (citing 20
U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.300); see also Boose v. Dist. of Columbia, 786 F.3d
1054, 1056 (D.C. Cir. 2015). Indeed
M.G., 246 F. Supp 3d at 7 (citing Dist. of Columbia v. Abramson, 493 F. Supp 2d 80, 84 (D.D.C.
2007).
11 Appendix A W.S., et al., v. District of Columbia
The ID
agency . . . have in effect, for each child with a disability in [its] jurisdiction, an individualized
education delivery system for disabled children[.] Endrew F. ex rel. Joseph F., Douglas Cty.
Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (citation omitted). An IEP must be developed in
accordance with statutory requirements, see
Id. The Supreme Court also reaffirmed the proposition that the
substantive requirement of the Act is satisfied and thus an eligible child has received a FAPE
al calculated to enable the
Endrew F., 137 S. Ct. at 999 (quoting Bd. of Ed. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 207 (1982)).
IV. APPLICABLE STANDARD OF REVIEW
A parent, or adult student, may file an administrative complaint and have an opportunity
for an impartial due process h
educational placement of the child, or the provision of a free appropriate public education to such
20 U.S.C. § 1415(b)(6), (f)(1). Further, the IDEA provides a statutory right to
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
Id. § 1415(i)(2)(C); see also 34 C.F.R.
12 Appendix A W.S., et al., v. District of Columbia
provide a FAPE. Boose, 786 F.3d at 1056.
summary judgment operates as a motion for judgment based on the evidence comprising the
D.R. v. Dist. of Columbia, 637 F.
to decide the case on the basis of the administr M.G., 246 F. Supp. 3d at 7
(citations omitted).
This
evidence . . . and base its decision on the preponderance of the evidence, 20 U.S.C. §§
1415(i)(2)(B)(ii), (m), the IDEA plainly suggests less deference than is conventional in
Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 521 (D.C.
Cir. 2005) (quoting Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989)) (internal quotation
substitut[ing] their own notions of sound educational policy for those of the school
Rowley, 458 U.S. at 206. However, a hearing decision without
reasoned and specific findings deserves little deference. Reid, 401 F.3d at 521 (quoting
Kerkam, 931 F.2d at 87) (internal quotation marks omitted); see also M.O. v. Dist. of Columbia,
20 F. Supp. 3d 31, 40 (D.D.C. 2013)
to the knowledge and expertise of the hearing officer, courts will accord less deference if the
Additionally,
of
13 Appendix A W.S., et al., v. District of Columbia
McAllister v. Dist. of
Columbia, 45 F. Supp. 3d 72, 76-77 (D.D.C., 2014) (finding that [t]he hearing officer was
entitled to make reasonable credibility determinations and, in the absence of extrinsic evidence to
the contrary, those determinations are entitled to deference from this Court
sure that [the] relief set forth in the
Turner v. Dist. of Columbia, 952 F. Supp. 2d 31, 36 (D.D.C.
2013) (internal quotation marks and citations omitted). The party challenging the hearing
Id. at 35 (internal quotation marks omitted); see also Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49, 62 (2005) (finding that the burden of proof in an administrative hearing concerning
an IEP is upon the party seeking relief).
V. DISCUSSION
term educational placement is not expressly defined by the IDEA Ward v.
Dist. of Columbia, No. 13-cv-00098, 2014 WL 272413, at *6 (D.D.C. Jan. 24, 2014). Courts in
this Circuit have nonetheless defined educational placement something between the physical
school attended b Id. (citation omitted). A
change in physical location of services cannot, by itself, form the basis of a cause of
action under the IDEA. See Bowling v. Dist. of Columbia, No. 11-cv-2145, 2013 WL 5214948,
at *4 (D.D.C. Sept. 16, 2013). A plaintiff may challenge an educational placement under the
IDEA, however, if the child
Johnson v. Dist. of Columbia, 962 F. Supp. 2d 263, 268 (D.D.C. 2013).
14 Appendix A W.S., et al., v. District of Columbia
Plaintiffs urge a less restrictive standard and argue that the Hearing Officer should have
enable [a child] to progress appropriate[ly] in light of
(citing Middleton v. Dist. of Columbia, 312 F. Supp. 3d 113, 143 (D.D.C. 2018)). This proposed
standard, which courts use to assess the appropriateness of an IEP, does not account for the
differences between review of an IEP and review of an educational placement. Unlike review of
an IEP, review of an educational placement is defined by whether a
placement in a school and in programming that can fulfill the requirements set forth in the
student's IEP. Middleton, 312 F. Supp. 3d at 143
whether an educational placement is appropriate.
Endrew F., 137 S. Ct. at 994 (citation omitted); Johnson, 962 F. Supp. 2d at 267; see also 34
C.F.R. § 300.116 on the child's IEP .
Where, as here, the IEP is not at issue, a plaintiff challenging an educational placement is
effectively alleging a failure to implement the IEP. Johnson, 962 F. Supp. 2d at 268;
laintiffs have never argued that there were any concerns with the IEP itself.
Courts therefore focus on to determine whether an educational placement is
Johnson, 962 F. Supp. 2d at 267-68
(citing Hinson ex rel. N.H. v. Merritt Educ. Ctr., 579 F. Supp. 2d 89, 104 (D.D.C. 2008)); see
also O.O. ex rel. Pabo v. Dist. of Columbia, 573 F. Supp. 2d 41, 53-54 (D.D.C. 2008); Roark ex
rel. Roark v. D.C., 460 F. Supp. 2d 32, 44 (D.D.C. 2006) ( To determine whether [a] placement
was appropriate, one must refer to the IEP. .
A. The Hearing Officer Erred in Concluding That Plaintiffs Did Not Establish a Prima Facie Case
15 Appendix A W.S., et al., v. District of Columbia
In due process child's individual educational program
or placement, or of the program or placement proposed by the public agency,
D.C.
Code § 38-2571.03(6)(A)(i). If a burden of
persuasion falls on the public agency appropriateness of the existing or
proposed program or placement Id.
and no court in this Circuit appears to
have addressed the issue, the undersigned nonetheless finds that the Hearing Officer applied the
wrong standard under any definition. Id.
Generally speaking, a burden of production requires only that a party produce enough
evidence . . . to justify sending the case to [a] jury Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 5122 (2d ed. Supp. 2020); see also Burden of
Production, Black's Law Dictionary (11th ed. 2019) A party's duty to introduce enough
evidence on an issue to have the issue decided by the fact-finder, rather than decided against the
party in a peremptory ruling such as a summary judgment or a directed verdict. . Across
different areas of substantive law, courts find that the burden of production for a prima facie case
is low. See 21B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5122
(2d ed. Supp. 2020) burden of production weighs less than the burden of persuasion
For disparate-impact causes of action under Title VII of the Civil Rights Act, for example,
establishing a prima facie
be rigid, mechanized, or ritualistic Chappell-Johnson v. Powell, 440 F.3d 484, 488
(D.C. Cir. 2006) (citation omitted). In antitrust cases involving Section 7 of the Clayton Act, 15
16 Appendix A W.S., et al., v. District of Columbia
U.S.C. § 18 it is easy to establish a prima facie case United States v. Baker Hughes Inc., 908
F.2d 981, 992 (D.C. Cir. 1990).
The Hearing Officer appears to have applied a more stringent standard, stating that
report and testimony came across as a post-hoc decision to 3 AR at 20. Of course, a Hearing Officer is entitled to
some deference in assessing witness credibility and weighing evidence. See McAllister, 45 F.
Supp. 3d at 77. In determining the sufficiency of a prima facie case, however, a hearing officer
must determine whether, after considering all of a plaintiff evidence, a reasonable trier of fact
could find in favor of the plaintiff.
The Hearing Officer therefore erred in two ways. First, the Hearing Officer merely stated
his own opinion about the persuasiveness of a particular, key witness rather than assessing
whether a reasonable trier of fact Second, the Hearing Officer
inter alia s
contention
was inappropriate. Rather than applying this standard in the first instance, the undersigned
recommends that, on remand, the Hearing Officer apply the foregoing framework in determining
substantially implementing [ Johnson, 962 F. Supp. 2d at 268.
3 The Hearing O
AR at 20 n.3 (citing E.A.M. v. New ., No. 11 CIV. 3730 LAP, 2012 WL 4571794, at *11
See SEC v. Chenery, 332 U.S. 194, 196 (1947) may not supply a reasoned basis for the agency's action that the agency itself has not given
17 Appendix A W.S., et al., v. District of Columbia
B. With One Exception, the Hearing Officer Did Not Err in Concluding That Defendant Met Its Burden of Persuasion
Plaintiffs fault the Hearing Officer for mischaracterizing or omitting evidence, ignoring
-exceptional status, failing to make proper credibility determinations, and
questioning -34. For the reasons that follow,
the undersigned finds that, with one exception, Defendant met its burden of persuasion because
IEP.
The undersigned alternatively finds that, with one exception, the Hearing Officer made reasoned
and specific findings with respect to all of issues ,
whether they were included in the IEP or not. The Hearing Officer erred in his treatment of
aggressive behaviors, however, because they were central to the IEP and not addressed in
the HOD.
1. Defendant Met Its Burden of Persuasion In Demonstrating that Most of
The Hearing Officer properly concluded that Defendant met its burden of persuasion by
establishing that purported requirements for any educational placement were not
. In their amended due process complaint, Plaintiffs listed nine
concerns :
1. There is insufficient academic challenge for [W.S.], given cognitive ability and unique circumstances. 2. The student population appears inappropriate for [W.S.]. 3. CG [Children's Guild] does not accept children with aggressive behaviors, which [W.S.] has demonstrated for more than two years. 4. There is a noticeable lack of differentiation in instruction. 5. There is a noticeable absence of behavior-shaping, which [W.S.] clearly needs.
18 Appendix A W.S., et al., v. District of Columbia
6. There is no evidence of the use of TEACCH, which is supposedly used in the school. 7. There was no use of ABA (Applied Behavior Analysis) at CG [Children's Guild], which [W.S.] requires. 8. The behavioral system, PBIS, is not individually targeted for the students. 9. There is an insufficient availability of the sensory room for preventative intervention.
AR at 611.4 With the exception of the third concern, -operative IEP does not
mention these purported requirements. Id. at 712-40. These concerns not found in the IEP
cannot form the basis of an educational placement challenge because the question here is
whether
Johnson, 962 F. Supp. 2d at 268.
Outside the IEP, the record does include references to, for example,
AR at 343 (revealing a high IQ score), 1160-61 (testimony
concerning twice-exceptional status as a very bright student with certain disabilities). This
consideration could conceivably bear on whether W.S. required an educational placement with
similar peers and a certain level of differentiation in instruction. See id. at 611. The appropriate
time to address these concerns, however, was the IEP meeting. See, e.g., 20 U.S.C. §
141 consider the use of positive behavioral
interventions and supports, and other strategies
Urging a contrary conclusion, Plaintiffs point to the dilemma that faced in
July and August 2018. -6. Defendant identified three schools for W.S. on
July 30, 2018. AR at 383. out whether to attend a
school not identified by Defendant by August 10, 2018. See id. at 558; 34 C.F.R. § 300.148(d)
4 The undersigned can find no specific reference to this list of concerns in the amended due process complaint itself, but Plaintiffs assert, and Defendants do not contest, that these issues were properly before the Hearing Officer. See AR at 306-14; see also, generally
19 Appendix A W.S., et al., v. District of Columbia
(requiring notice of rejection at least ten days before removal).
parents quickly and diligently
The undersigned is sympathetic to the difficulty
decisions in a short amount of time. This rushed timeframe, however, demonstrates why the
IDEA does not require, as Plaintiffs effectively urge, a de novo
programming at the time of a new educational placement. An IEP is a for
collaboration among parents
and educators and . . . careful consideration of the child's individual circumstances. Endrew F.,
137 S. Ct. at 994. , Defendant
reasonably relied on IEP, a prospective and Id.
Plaintiffs cite no precedent or provision of the IDEA which demands a contrary
Eley v. District of Columbia, 47 F. Supp. 3d 1
(D.D.C. 2014), is misplaced.
whether the stay-put provision of the IDEA applied to a change in
schools. Id. at 7 (citing 20 U.S.C. § 1415). Thus, the court did not consider whether the
educational placement was appropriate, only
- while proceedings under the IDEA were pending. Id. at 17
(citation omitted). As in Johnson, the question here is whether an educational placement
deprived a child of a FAPE, a question which turns on whether the placement is capable of
substantially implementing a IEP. 962 F. Supp. 2d at 268. The undersigned therefore
finds no error in the HOD with respect to all
except for the third.
20 Appendix A W.S., et al., v. District of Columbia
2. With One Exception, the Hearing Officer Properly Weighed the Evidence
treatment of the record evidence. With the exception of one issue, the undersigned finds that,
even if the
was appropriate.
a. The Hearing Officer Made Reasonable Credibility Determinations
support in the record or the caselaw in this Circuit. on at 27-30. A hearing
to make reasonable credibility determinations and, in the absence of extrinsic
evidence to the contrary, those determinations are entitled to deference from this Court
McAllister, 45 F. Supp. 3d at 77. Far f , the Hearing
Officer considered and methodically explained why he did not credit specific testimony,
statement-by-statement and issue-by-issue. See, e.g., AR at 19 (concluding that there was
sufficient differentiation of instruction because, inter alia observed
See id. at 17-20
several issues).
The only broad credibility determination in the HOD is a brief characterization of one
witness, Dr. Solomon.5 The Hearing Officer found that her testimony seemed like -hoc
5 onclusions regarding differentiation of instruction at The
21 Appendix A W.S., et al., v. District of Columbia
the Auburn School. AR at 20. This characterization follows an
issue-by-
other evidence. Id. at 17-20. In that discussion, the Hearing Officer explains that many of the
and were
. See id. Read in
context, the Hearing Officer reasonably characterized the report and testimony -
based on this issue-by-issue recitation of the evidence. 6 AR at 20.
Plaintiffs nonetheless argue that, as a general matter,
experience with both W.S. and The Childr
-30. However, Dr. Wood, a witness that the
Hearing Officer credited, had more than an adequate foundation of knowledge regarding both
topics. She visited
had
1314-15, 1327. in
Id. at 1387-90.
knowledge
little basis in the record. See
the Hearing Officer is
still entitled to deference in the absence of contradicting the Hearing
broad, adverse credibility finding, but context reveals that it is limited to that issue. See
See id. (citing AR at 1194). Plaintiffs nonetheless do not demonstrate how this wrong. 6 See Plaintiff - mother faith. See id. The undersigned reads these portions of the HOD as reasonable characterizations of the facts.
22 Appendix A W.S., et al., v. District of Columbia
tions. McAllister, 45 F. Supp. 3d at 77. Thus, the undersigned
b. With the Exception of Evidence Related to Aggressive Behavior, the Hearing Basis in the Record
Guild was an appropriate educational placement, Plaintiffs contend that the Hearing Officer
merely state[d] that the proposed placement at Childr
With one exception, however, the Hearing Officer discussed each
concern that Plaintiffs raised in their due process complaint with sufficient detail. For example,
in
room as
19. Plaintiffs do not specifically challenge this factual finding. Instead, in a scattershot fashion,
Plaintiffs use several examples to show that al
With the exception of issues related to
s, the
conclusions.
Plaintiffs first argue that should have been more persuasive to the
Hearing Officer s witnesses. See -19. As discussed
supra, the Hearing Officer adequately explained his credibility determinations. Moreover, even
if Plaintiffs are correct that their witnesses had more experience or familiarity with W.S. or The
Plaintiffs must still show that the Hearing Officer was somehow
23 Appendix A W.S., et al., v. District of Columbia
. See id. Dr. Solomon was clearly much
more familiar with the program Reid, 401 F.3d at 521 (citation omitted). Thus, the bulk of
these arguments do not address whether the Hearing Officer made reasonable conclusions about
The only two issues that Plaintiffs challenge with any specificity
s
could provide individualized behavior plans. The Hearing Officer, however, made reasonable
he behavioral system, PBIS, is . . . individually targeted for
the students. AR at 611. The Hearing Officer relied on two pieces of evidence to support the
Id. at 20. Dr. Wood testified that PBIS
behavior plan through their staff and other resources. Id. at 1332-33. Further, an email from a
Special Education Coordinator
Id. at 403.
behavior plan and that the email does not provide information
-20. In combination, however, this
evidence supports the conclusion t
individual Thus, even if a resolution of the concerns
Plaintiffs raised in the due process complaint was required for a review of
24 Appendix A W.S., et al., v. District of Columbia
behaviors
these requirements.
3. The Hearing s
Unlike other concerns Plaintiffs raised in their due process complaint, however,
aggressive behaviors were These behaviors were also a concern for
ducation
d in aggressive and disruptive behavior
like verbally or physically threatening other students. Id. at 722. therefore included
demonstrated inten Id. at 723. Plaintiffs raised the issue of whether
See id. at 611.
The Hearing Officer did not reach any conclusions regarding whether The Childr
Guild could provide services or indeed, has ever provided services, to a student with aggressive
behaviors like W.S. See id. at 14-21. Far from providing
resolving this critical issue, there are no findings at all. Reid, 401 F.3d at 521 (citation omitted).
Read generously, the HOD contains two pieces of evidence which could support such a
conclusion, but given the contradictory and unreliable nature of some of this evidence, the
Hearing Officer should have made reasoned and specific findings regarding how The
25 Appendix A W.S., et al., v. District of Columbia
aggressive behaviors. Reid, 401 F.3d at 521
(citation omitted).
The first piece of evidence is
Guild, describes some programs which are separate from the school which W.S. was slated to
attend. Id. at 390. The
aggressiveness appears in section of the brochure ded
Help Center. Id. at 392. The section for includes no such
description. Id. at 392. Thus, to the extent the Hearing Officer relied on this brochure to find
program that W.S. would attend
t
supported that conclusion. Reid, 401 F.3d at 521 (citation omitted).
The Hearing Officer did not discuss, but did reference, a second piece of evidence
bearing on this question in broadly citing and approving of the testimony of Ms. Reda. AR at 20.
represented that it could provide
services to students with aggressive behaviors, Ms.
his level of aggression, and that they had worked with similar students in the past who had that
Id. at 1394. Other witnesses, however, provided different accounts. Dr.
Solomon, who was also present during the observation , stated
26 Appendix A W.S., et al., v. District of Columbia
Id. at 1175. Dr. Wood
nonetheless accommodate W.S. Id. at 1335. Just as the Hearing Officer did for other issues, the
Hearing Officer should have reconciled this contradictory record and reached a specific
conclusion. See id. at 17 (concluding, inter alia
methodology after reconciling evidence which supported and contradicted that conclusion). On
remand, the undersigned recommends that the Hearing Officer do the same for the issue of
could accommodate students with aggressive behaviors like W.S.
IV. CONCLUSION
For all of the foregoing reasons, it is, on this 17th day of August, 2020,
RECOMMENDED that Motion for Summary Judgment (ECF No. 10) be
GRANTED and that this matter be remanded to the District of Columbia Office of State
Superintendent for Education for further proceedings in accordance with the instant Report and
Recommendation; and it is
FURTHER RECOMMENDED mary Judgment
(ECF No. 11) be DENIED.
DEBORAH A. ROBINSON United States Magistrate Judge
Within fourteen days, either party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made and the basis of each such objection. In the absence of timely objections, further review of issues addressed herein may be deemed waived.