Butler v. District of Columbia ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DAVETTE BUTLER, )
)
Plaintiff, )
)
v. ) Case No. 16-cv-01033 (APM)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
In June 2016, Plaintiff Davette Butler brought this Individuals with Disabilities Education
Act lawsuit against the District of Columbia Public Schools (“DCPS”) on behalf of her minor son,
D.B., after a Hearing Officer determined that DCPS had denied D.B. a “free appropriate public
education,” or “FAPE,” for the 2014–2015 and 2015–2016 school years but declined to award any
compensatory education for those years. On summary judgment, the court remanded the case back
to the Hearing Officer to determine an appropriate compensatory education award for D.B. The
Hearing Officer then ordered a battery of evaluations and assessments, but lamentably, the case
languished for over a year as DCPS struggled to identify providers to perform the evaluations.
Plaintiff returned to this court, which ordered DCPS to conduct the necessary evaluations,
including a compensatory education evaluation, so that the court could fashion an appropriate
compensatory education award. It took over a year to complete those evaluations, after which the
court held a contested evidentiary hearing. That hearing closed the record nearly four years after
the case commenced.
A historical recitation of this case shows that DCPS, the administrative law system, and
the courts all failed D.B. A young man who was denied a FAPE over five years ago is no longer
young. He is 20 years old and yet operates at below a kindergarten level. What little progress he
once made is long gone, having evaporated while his case bounced back and forth between
administrative hearings and this court and as the case stalled pending new evaluations. And,
instead of focusing on D.B.’s best interests, DCPS has fought his mother’s efforts to rectify wrongs
at every step. The District’s obstinance is as inexplicable as it is troubling. Though D.B. ultimately
prevails here, he does so at great cost. The system failed him. We should all ask why.
Having reviewed the record and following an evidentiary hearing on the matter, for the
denial of FAPE for the 2014–2015 and 2015–2016 school years, the court awards D.B. 1,100 hours
of specialized instruction, 88 hours of occupational therapy, 100 hours of adapted physical
education therapy, and 132 hours of orientation and mobility support therapy.
I.
D.B. has suffered from blindness, physical limitations, and mental health disabilities since
birth. Admin. R., ECF No. 8 [hereinafter A.R.], at 44–55; Not. of Filing of Compensatory
Education Evaluation, ECF No. 53, Ex. 1, ECF No. 53-1 [hereinafter Pl.’s Rpt.], at 3. In July
2014, DCPS developed an individualized education program (“IEP”) for D.B. for the 2014–2015
school year, which designated his school placement as Woodrow Wilson High School. A.R. at
92–93. D.B.’s school year was cut short, however, after he was allegedly sexually assaulted in a
school bathroom in September. Id. at 94–95, Pl.’s Rpt. at 4. Plaintiff requested a change in her
son’s school placement, which DCPS did not carry out until June 2015, A.R. at 97, 113–14, 143,
but because the new placement did not provide D.B. the services he needed, he did not attend, id.
at 113, 190–91.
In December 2015, Plaintiff filed a due process complaint under the Individuals with
Disabilities Education Act (“IDEA”) on behalf of D.B., alleging that DCPS had denied her son a
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FAPE for the 2014–2015 and 2015–2016 school years. Id. at 147–50, 190–91. Following an
evidentiary hearing, a Hearing Officer determined that DCPS had denied D.B. a FAPE for both
years by (1) failing to convene D.B.’s entire IEP team to review his school placement following
the alleged assault in September 2014; and (2) failing to revise D.B.’s IEP for the 2015–2016
school year. Id. at 20–21. The Hearing Officer did not, however, award D.B. compensatory
education. He explained that although Plaintiff’s expert had proposed an award, the evidence did
not establish “what position [D.B.] would now occupy if he had attended school after September
8, 2014 or the type and amount of services he would need to regain that position.” Id. at 24–25.
In so doing, the Hearing Officer rejected Plaintiff’s expert’s testimony as “speculative” and
insufficient “to craft an appropriate, specific fact based, compensatory education remedy,” and he
denied the request for compensatory education “without prejudice.” Id. at 25–26.
Plaintiff then filed this action, challenging the Hearing Officer’s refusal to award
compensatory education. Plaintiff sought an award of compensatory education based on the expert
testimony presented at the administrative hearing, or alternatively, she requested an order directing
DCPS to develop an appropriate compensatory education plan or order a compensatory education
evaluation. See Pl.’s Mot. for Summ. J., ECF No. 9, at 12–18. On summary judgment, the court
held that the Hearing Officer erred in denying, even without prejudice, Plaintiff’s request for
compensatory education, but it concluded that the record lacked the necessary information to
fashion an appropriate compensatory education award. Butler v. District of Columbia, 275
F. Supp. 3d 1, 5–6 (D.D.C. 2017). Specifically, the expert testimony did not “address the basic
factors that must be considered in developing an appropriate compensatory education plan,”
including “D.B.’s present cognitive or behavioral disabilities,” in “what areas D.B. had regressed
and to what degree,” and “what position D.B. would have been in absent the FAPE denial.” Id. at
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6. The court remanded the matter back to the Hearing Officer to “conduct a fact-specific inquiry
to determine the amount of compensatory education owed to D.B.” Id. at 7.
On November 10, 2017, the Hearing Officer on remand ordered a battery of evaluations
aimed at determining a compensatory education award. See Status Report, ECF No. 20. These
included an orientation and mobility assessment, an adaptive physical education assessment, a
comprehensive psychological evaluation, and an occupational therapy evaluation. See Status
Report, ECF No. 21. The Hearing Officer did not order a compensatory education evaluation,
even though the parties did not dispute the need for one. See Status Report, ECF No. 20.
Unfortunately, as of August 19, 2018, one year after this court’s remand order, DCPS still
had conducted no evaluations. See Status Reports, ECF Nos. 20, 21, 22, 23, 24. Plaintiff then
moved for relief from the summary judgment order, asking the court to “issue a final compensatory
education determination,” given the lack of progress on remand. Pl.’s Mot. for Revision of J., ECF
No. 26, at 6. The court denied the motion, explaining that it could not “craft an award
compensating for past violations without updated individualized assessments.” Order, ECF No.
35 (internal quotation marks and citation omitted). The court, however, ordered the District to
complete a compensatory education evaluation and agreed to take evidence regarding a proper
compensatory education package. See 10/29/2018 Status Hr’g; Order, ECF No. 36; see also
Branham v. District of Columbia, 427 F.3d 7, 13 (D.C. Cir. 2005) (“[I]n light of the educational
harms [the student] has already suffered, we encourage the district court to undertake the
evidentiary hearing itself in order to minimize the potential for further delay.”). By February 2019,
all four evaluations ordered by the Hearing Officer were completed. See 2/12/19 Status Hr’g.
After some delay, both Plaintiff and DCPS retained compensatory education experts, who
submitted competing evaluations. See Status Report, ECF No. 54; see generally Pls.’ Rpt.; Errata,
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ECF No. 55, Ex. 1, ECF No. 55-1 [hereinafter Def.’s Rpt.]. The court held an evidentiary hearing
on March 10, 2020. See 3/10/2020 Minute Entry.
II.
Courts have “broad discretion” to fashion remedies for IDEA violations. Florence Cnty.
Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993) (citation omitted); Boose v. District
of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015). Such remedies may include compensatory
education in the form of programs that “make up for prior deficiencies.” Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005). A compensatory education program
focuses on a disabled student’s “individual needs,” and accordingly, it must “rely on individualized
assessments” of the student. Id. at 524. The court’s remedial inquiry therefore is fact-specific and
equitable, “produc[ing] different results in different cases depending on the child’s needs.” Id; see
also B.D. v. District of Columbia, 817 F.3d 792, 799 (D.C. Cir. 2016) (“[C]ompensatory education
awards require a ‘flexible approach’ tailored to the facts of each case . . . .”). In fashioning a
compensatory education award, the court is guided by the principle that, “[t]o fully compensate a
student, the award must seek not only to undo the FAPE denial’s affirmative harm, but also to
compensate for lost progress that the student would have made.” B.D., 817 F.3d at 798; see also
Reid, 401 F.3d at 527 (holding that compensatory education must be “an informed and reasonable
exercise of discretion regarding what services [the student] needs to elevate him to the position he
would have occupied absent the school district’s failures”); cf. Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017) (explaining that the IDEA “requires an
educational program reasonably calculated to enable a child to make progress appropriate in light
of the child’s circumstances”). This inquiry requires “figuring out both what position a student
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would be in absent a FAPE denial and how to get the student to that position.” B.D., 817 F.3d at
799.
Applying the above principles requires the court to give careful consideration to D.B.’s
specific disabilities, development, and academic progress—or lack thereof—during the 2014–
2015 and 2015–2016 school years. The court first reviews D.B.’s most recent evaluations as
measured against records from 2014 and prior in order to assess changes in D.B.’s development in
the intervening years. The court then reviews both Plaintiff’s and Defendant’s experts’
compensatory education recommendations.
1. D.B.’s Developmental and Educational Progress Since the Denial of FAPE
The record shows that D.B. has a complex medical, developmental, and educational
history. As noted, he was born with a genetic condition that rendered him blind in both eyes. Pl.’s
Rpt. at 3; Def.’s Rpt. at 2. Additionally, he suffers from heart arrhythmia, sinusitis, limited rotation
of wrists, speech deficits, asthma, and underwent a spinal fusion surgery due to scoliosis. Pl.’s
Rpt. at 3; Def.’s Rpt. at 2. D.B.’s academic history reveals the District’s repeated failure to meet
D.B.’s complex needs throughout his young life. Pl.’s Rpt. at 3–6; Def.’s Rpt. at 3–8. An IEP
developed by DCPS in May 2013 found that D.B., then thirteen years old, was performing at a
kindergarten level using Braille, his mobility was supported by a sighted guide, and he could
navigate independently between familiar locations using a two-handed long cane and with the help
of verbal cues. Pl.’s Rpt. at 4; see also Def.’s Rpt. at 5 (noting that D.B. was “making steady
progress”). This IEP also found that D.B. demonstrated “some academic gains” and “responded
to intervention.” Pl.’s Rpt. at 4. FAPE was denied for the 2014–2015 and 2015–2016 school
years, during which time D.B. received only limited services through providers at home because
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of a previous compensatory education award for the 2013–2014 school year. Pl.’s Rpt. at 5; Def.’s
Rpt. at 6.
Both compensatory education evaluations make clear that D.B.’s absence from school and
the dearth of resources he has received since 2014 have had a devastating effect on D.B. across all
metrics of development. Academically, D.B. has shown no progress in core areas. Pl.’s Rpt. at
6–7; Def.’s Rpt. at 20. A December 16, 2017 vocational evaluation determined that D.B.’s general
and academic skills “place him below the 0.1 percentile and below a kindergarten level.” Pl.’s
Rpt. at 6. According to Plaintiff’s expert, academic progress could have occurred if D.B. had had
“access to Braille, tactile graphics, object and/or tactile symbols, audio stimuli devices, and other
forms of technology as is appropriate for a blind student.” Id. at 15. Instead, D.B. has lost
functional use of Braille, and his proficiency has regressed from a kindergarten level in 2013 to a
low kindergarten level. Pl.’s Rpt. at 18. A comprehensive psychological evaluation conducted in
2019 revealed that while D.B., at that point 19 years old, could name Braille letters, he could no
longer read Braille words or numbers. Id. at 11.
D.B.’s lack of schooling since 2014 has also stalled his personal and psychological
development. During a comprehensive psychological evaluation conducted in March 2019, which
tested D.B.’s general intellectual ability, D.B. scored either Low and Very Low on all subtests he
was able to take, indicating that “little to no progress has occurred for D.B. in the four plus years
since” he was last evaluated in 2014. Id. at 12. In fact, the results found “indications that some
regression occurred in some areas.” Id. at 11–12. D.B.’s social and emotional functioning has
also suffered. Since 2015, D.B. has become overly dependent on his family, his symptoms of
separation anxiety persist, and he has not effectively processed the alleged 2014 sexual assault.
Id. at 18. If D.B. had been placed in an appropriate school setting, Plaintiff’s expert opines, the
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need for counseling services would have become apparent. Id. D.B. also has had no access to
career education that would have taught him work-related skills “such as responsibility,
punctuality, focus, and perseverance.” Id. at 14. As a result, D.B. is now “unprepared, at the age
of 19, to explore and discover his career strengths and interests.” Id. With respect to independent
living skills, “D.B. continues to display deficits in his personal hygiene, food preparation, time and
money management, clothing care, and household tasks.” Id. at 15; see also Def.’s Rpt. at 20.
Physically, D.B. has regressed in strength, range of motion, posture, and balance since
2014. Pl.’s Rpt. at 10–11; Def.’s Rpt. at 19. An occupational therapy evaluation conducted in
September 2018 found muscle atrophy, which “most likely occurred due [to] D.B.’s lack of access
to a school setting where he would be regularly mobile, participate in an [adapted physical
education] program, and receive therapy.” Pl.’s Rpt. at 10; see also Def.’s Rpt. at 18. An adapted
physical education evaluation conducted in September 2018 found that “D.B. needs growth in
ALL the areas assessed, including: flexibility, balance, muscular strength, locomotor movements
and object control skills.” Pl.’s Rpt. at 7. The evaluator determined that “D.B. had not made any
progress towards the [adapted physical education] goals assigned to him prior to assessment.” Id.
at 8. Likewise, an orientation and mobility assessment revealed that D.B. “lacks the prerequisite
directional skills to understand key concepts,” and had “regressed in his skill to navigate the
neighborhood” because of a lack of continued training and practice. Id.; see also Def.’s Rpt. at
19. Absent occupational therapy services, he has become more dependent on his family with
respect to physical movement, which raises physical safety concerns and impacts D.B.’s access to
community resources and his performance at home and in the community. Pl.’s Rpt. at 18.
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2. The Expert Recommendations
In view of these assessments, Plaintiff’s expert, Jay Michney, concluded that the denial of
FAPE has caused “long-term harm that requires intensive compensatory education for D.B. to have
any chance of recovering lost skills, learning new information, improving physical skills, and
increasing independence.” Id. at 14. He estimated D.B. “missed approximately 2,156 specialized
instruction hours outside of general education, close to 700 hours of instruction within general
education, nearly 3,100 hours of support from a dedicated aide, over 88 hours occupational
therapy, 132 hours of orientation and mobility support, and 100 hours of adapted physical
education.” Id. at 22. Michney therefore recommends specialized instruction and services in the
following areas.
First, to remedy the educational harm caused by the denial of FAPE, Michney proposes
1,100 hours of tutoring and specialized instruction with a nationally certified literary Braille
teacher of the blind and in the Expanded Core Curriculum (ECC), a curriculum for blind students
intended to build their “independent living skills, orientation and mobility, social interaction, self-
determination, assistive technology, recreation, sensory efficiency, career education, and
compensatory skills.” Pl.’s Rpt. at 19. Michney testified that he arrived at this number by looking
at the services and hours D.B. was denied, the degree to which he “has either plateaued in skilled
areas or regressed in skilled areas,” and his cognitive profile. Draft 3/10/2020 Hr’g Tr. at 29–30.
The 1,100 hours represents a “reasonable estimation of the number of hours that [Michney]
think[s] are necessary to make up for the amount of time that has been established as the denial of
FAPE.” Id. at 30.
Second, to address harm to D.B’s orientation and mobility skills, Michney recommends
132 hours of Orientation and Mobility Training with a skilled orientation and mobility specialist.
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Def.’s Rpt. at 20. These hours are intended to “help D.B. understand and apply directional and
positional concepts, increase understanding of the outdoor environment, plan orientation and
mobility supported ECC goals, and gain independence.” Id. at 20; see also Draft 3/10/2020 Hr’g
Tr. at 37–38.
Third, to address D.B.’s regression in strength, range of motion, posture, and balance,
Michney proposes 88 hours of Occupational Therapy Services “provided by a skilled occupational
therapist that will help D.B. to increase strength and flexibility, enhance balance and range of
motion, and improve overall independence and confidence.” Pl.’s Rpt. at 21; see also Draft
3/10/2020 Hr’g Tr. at 39.
Fourth, to address D.B.’s lack of progress towards his adapted physical education goals,
Michney suggests 100 hours of Adapted Physical Education “by a skilled adapted physical
education teacher . . . to increase flexibility, balance, muscular strength, locomotor movements,
and object control skills.” Pl.’s Rpt. at 22; see also Draft 3/10/2020 Hr’g Tr. at 39–40.
Defendant’s expert, Dr. Tina Nguyen, on the other hand, found that “there is no evidence
to document any regression over” the 2014–2015 school year. Further, she cited an “authorization
letter” dated July 8, 2014, which indicated that D.B. had already been “provided with 150 hours
of tutoring services, 140 hours of occupational therapy services, 140 hours of Adapted Physical
Education services, and 130 hours of vision therapy services.” Def.’s Rpt. at 29; see also Draft
3/10/2020 Hr’g Tr. at 88–89. For the 2015–2016 school year, Dr. Nguyen noted that D.B. was
unable to attend school for approximately 18 weeks due to complications from scoliosis surgery.
By Dr. Nguyen’s calculations, D.B received 25 hours of Adapted Physical Education services out
of 63.5 hours he was awarded, 93 hours of Occupational Therapy services out of 127 hours
awarded; 49 hours of Tutoring services out of 89.5 hours awarded, and 62 hours of Vision services
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out of 77 hours awarded. Def.’s Rpt. at 30. Dr. Nguyen therefore did not recommend “further
compensatory services” for the 2015–2016 school year “due to the fact that [D.B] himself was not
available for a part of the school year as he was hospitalized and DCPS had already awarded him
compensatory services for this school year.” Id. Notwithstanding these recommendations
regarding the two school years in question, she urges an award of “compensatory residential school
placement at the Maryland School for the Blind or the equivalent until [D.B.] is 21 years old.” Id.
at 34. At the evidentiary hearing, Dr. Nguyen amended her recommendation to at least two years
of residential services. Draft 3/10/2020 Hr’g Tr. at 94. Dr. Nguyen did not dispute the services
or hours recommended by Plaintiff’s expert, but instead maintained that the only effective
educational setting for D.B. is a residential school for the blind just north of Baltimore. In Dr.
Nguyen’s view, D.B. had made little progress receiving services from providers in his home
environment and requires “a school placement that would allow for him to consistently reinforce
and build on his skills” with an eye towards “mastery of basic independent living skills.” Def.’s
Rpt. at 33.
3. The Compensatory Education Award
The court turns now to crafting a compensatory education award. As explained, the
compensatory education award “must seek not only to undo the FAPE denial’s affirmative harm,
but also to compensate for lost progress that the student would have made.” B.D., 817 F.3d at 798.
It is undisputed that D.B. was denied a FAPE for the 2014–2015 and 2015–2016 school years, and
the record demonstrates that D.B. suffered serious educational harms as a result. Following his
removal from Wilson High School in early September 2014, D.B. received no specialized
education services. During both years, he received only limited services as a compensatory
education award for a previous academic year during which he was also denied a FAPE. See Draft
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3/10/2020 Hr’g Tr. at 88–90; Pl.’s Rpt. at 4–5; Def.’s Rpt. at 5–6. A July 8, 2014 IEP consisted
of 24.5 hours per week of specialized instruction outside the general education setting, including
10 hours with a vision teacher, 240 minutes of occupational therapy outside the general education
setting per month, 270 minutes of adapted physical education services outside the general
education per month, 360 minutes of orientation and mobility services per month, as well as a
dedicated aide for 32 hours per week. Pl’s. Rpt. at 4–5; Def.’s Rpt. at 6. A separate IEP dated
May 28, 2015 made the same recommendations. Based on these IEPs, the court estimates that for
both school years, 1 D.B. should have received approximately 2,058 specialized instruction hours
outside of general education, nearly 2,688 hours of support from a dedicated aide, 88 hours of
occupational therapy and another 99 of adapted physical education, and 132 hours of orientation
and mobility support. Considering that D.B. received some service hours at Wilson High School
from August to September 2014, 2 the court estimates that in total, D.B. was wrongfully denied
approximately 1,960 hours of specialized instruction, 2,560 hours of support from a dedicated aide,
84 hours of occupational therapy, 94.5 hours of adapted physical education, and 126 hours of
orientation and mobility support. 3
1
There were 42 weeks in the Extended School Years for both 2014–2015 and 2015–2016, which ran from
August through July. See Def.’s Rpt. at 29–30; Pl.’s Rpt. at 4 (noting D.B. began the 2014 school year in August
2014).
2
Dr. Nguyen maintains that D.B. already received compensatory education hours for the 2014–2015 school
year. See Def.’s Rpt. at 29; Draft 3/10/2020 Hr’g Tr. at 90. But these compensatory education hours stemmed from
a Hearing Officer’s prior determination that DCPS had denied D.B. a FAPE for the 2013–2014 school year. See Pl.’s
Rpt. at 4–5; Def.’s Rpt. at 5–6. Accordingly, the court does not consider these hours in assessing a compensatory
education award for the 2014–2015 and 2015–2016 school years.
3
Dr. Nguyen’s report reduced the 2015–2016 school year by 18 weeks due to D.B.’s lengthy hospitalization
following complications from scoliosis surgery. See Def.’s Rpt. at 30. The court does not discount this time when
assessing the compensatory education award, however. Defendant cites no authority for the proposition that a
student’s absence from school for medical reasons relieves the school of its obligation to provide a FAPE. Indeed,
Department of Education regulations contemplate different “placement” options that school boards must make
available to disabled students, including “regular classes, special classes, special schools, home instruction, and
instruction in hospitals and institutions.” 34 C.F.R. § 300.551. As a recent Department of Education policy document
explains, “it has long been the Department’s position that when a child with a disability is classified as needing
homebound instruction because of a medical problem, as ordered by a physician, and is home for an extended period
of time (generally more than 10 consecutive school days), an individualized education program (IEP) meeting is
necessary to change the child’s placement and the contents of the child’s IEP, if warranted.” The IEP Team must
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To start, the court rejects Dr. Nguyen’s proposal to place D.B. in a residential education
setting such as the Maryland School for the Blind. Plaintiff, D.B.’s mother, does not consent to
such a placement, and Defendant cites no authority that would allow the court to compel a
placement at a residential school that is over forty miles away, or to reject an otherwise reasonable
compensatory education award providing daytime instruction because the mother declined the
District’s offered residential placement. Indeed, the IDEA requires that students be placed in “the
least restrictive environment possible—that is, the one that provides ‘some educational benefit’
and ‘most closely approximates’ the education a disabled child would receive if she had no
disability.” Leggett v. District of Columbia, 793 F.3d 59, 73 (D.C. Cir. 2015) (quoting Kerkam v.
Superintendent, D.C. Pub. Schs., 931 F.2d 84, 86 (D.C. Cir. 1991)); see also 20 U.S.C. §
1412(a)(5)(A) (“To the maximum extent appropriate,” a school district’s special education
accommodations should take place in the “least restrictive environment” available.). It is plain
that a residential program—a full-time program away from non-disabled peers that would separate
D.B. from his family at least five days a week—is more restrictive than a day program, and
Defendant’s expert concedes as much. See Draft 3/10/2020 Hr’g Tr. at 97. Given this, the court
will not award compensatory education in the form of a placement at Maryland School for the
Blind or another residential program. 4
The compensatory education award must then take the form of hours provided to D.B. in a
day-program setting. The D.C. Circuit has rejected a “cookie cutter approach” that presumes “that
determine whether the child could “benefit from homebound services.” Department of Education, Questions and
Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak (March
2020), available at https://sites.ed.gov/idea/files/qa-covid-19-03-12-2020.pdf.
4
While Dr. Nguyen may be correct that D.B. could make more progress at a residential program than in a
day program, it is undisputed that the IDEA does not require a placement that provides the “best possible education
or even a ‘potential-maximizing’ one.” Legett, 793 F.3d at 70 (quoting Bd. of Ed. of Hendrick Hudson Central School
District v. Rowley, 458 U.S. 176, 197 n.21 (1982)). Rather, a placement is generally “proper under the Act” if
“reasonably calculated to enable the child to receive educational benefits.” Id.
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each hour without FAPE entitles the student to one hour of compensatory instruction.” Reid, 401
F.3d at 523. Courts in this jurisdiction conduct a “qualitative, fact-intensive” inquiry “tailored to
the unique needs of the disabled student.” Branham, 427 F.3d at 9 (discussing Reid). The court
finds that Plaintiff’s expert’s recommendation is the product of such a qualitative, fact-intensive
inquiry, and it is tailored to meet D.B.’s unique needs. Michney’s recommendation—1,100 hours
of specialized instruction, 88 hours of occupational therapy, 100 hours of adapted physical
education therapy, and 132 hours of orientation and mobility support therapy—is not strictly a
one-to-one ratio of service hours D.B. was denied, and in fact taken together represents fewer
service hours than D.B. was denied. Michney testified that he arrived at this award after
considering the service hours D.B. missed during the 2014–2015 and 2015–2016 school years,
D.B.’s progress thus far, D.B.’s cognitive profile and functional skills, and the rate of expected
progress based on his previous and current evaluations. Draft 3/10/2020 Hr’g Tr. at 29–30. While
Defendant questions the “practical[ity]” of such an award, see id. at 74, the court notes D.B.’s
regression across nearly every metric of development and the fact that Defendant’s own expert
report explained that D.B. “needs time to respond and process information,” requires “several
breaks” when working with providers, and must have instructions repeated and reinforced. Def.’s
Rpt. at 21. Defendant also reported that D.B. can become easily discouraged and frustrated. Id.
at 21–22, 24. Given these hurdles, a larger number of service hours is appropriate. See Kelsey v.
District of Columbia, 85 F. Supp. 3d 327, 332, 337 (D.D.C. 2015) (awarding 1.5 hours of
compensatory education for every 1 hour denied given the student’s “likely frustration, resistance
to learning, and the need to build confidence” (internal quotation marks omitted)).
Calculating the value of the education D.B. has been denied is undeniably an imprecise
endeavor. The court is satisfied, however, that this award fairly approximates the education D.B.
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lost and meets the “fact-specific” inquiry required by Reid to tailor D.B.’s award to his specific
needs. See Reid, 401 F.3d at 524; see also Mary McLeod Bethune Day Academy Pub. Charter
Sch. v. Bland, 555 F. Supp. 2d 130, 133–34 (D.D.C. 2008) (upholding a compensatory education
award when the hearing officer first calculated the difference between the student’s prescribed
hours of specialized instruction and the hours that he received, then compared that total to the
expert’s recommended award, because the hearing officer “conducted a fact-specific inquiry and
tailored the award to [the student’s] individual needs by taking into account the results of [an
evaluation] and the recommendations of [an expert]”).
V.
For the foregoing reasons, the court orders the following compensatory education award to
remedy the denial of FAPE for the 2014–2015 and 2015–2016 school years:
(1) 1,100 hours of specialized instruction in all areas of the Expanded Core Curriculum or the
equivalent (independent living skills, orientation and mobility, social interaction, self-
determination, assistive technology, recreation, sensory efficiency, career education, and
compensatory skills), including tutoring from a nationally certified literary Braille teacher
of the Blind;
(2) 88 hours of occupational therapy services;
(3) 100 hours of adapted physical education; and
(4) 132 hours of orientation and mobility support services.
Dated: July 15, 2020 Amit P. Mehta
United States District Court Judge
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