M.F. v. Cleveland Metropolitan School District

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

M.F., individually and on behalf of minor Case No. 1:23-cv-02308-PAB

child, J.C.M., an individual with a

disability, et al.,

Plaintiffs, JUDGE PAMELA A. BARKER

-vs-

MEMORANDUM OPINION & ORDER

CLEVELAND METROPOLITAN

SCHOOL DISTRICT, et al.,

Defendants.

Pending before the Court are: (1) the Motion of Plaintiff M.F., individually and on behalf of

minor child J.C.M, an individual with a disability (“Plaintiff” or “M.F.”) to Submit Additional

Evidence to the Administrative Record (“Plaintiff’s Motion to Supplement”) (Doc. No. 34); and (2)

the Motion of Defendant Cleveland Metropolitan School District (“Defendant” or “CMSD”) to

Supplement the Administrative Record (“CMSD’s Motion to Supplement”) (Doc. No. 35).

For the following reasons, CMSD’s Motion to Supplement is GRANTED and Plaintiff’s

Motion to Supplement is GRANTED IN PART and DENIED IN PART.

I. Relevant Factual and Procedural Background

Plaintiff’s Complaint sets forth the following allegations.1

1 This Opinion does not set forth an exhaustive summary of all of M.F.’s allegations regarding J.C.M.’s disability and

educational experience at CMSD, but instead sets forth a general overview as necessary for resolution of the current

Motions.

A. J.C.M.’s Background and Experience at Cleveland Metropolitan School District

J.C.M. is a seventeen-year-old2 child who has been diagnosed with multiple disabilities. (Doc.

No. 1 at PageID #1.) J.C.M. is currently enrolled as a student in the Cleveland Municipal School

District and resides in Cuyahoga County with his mother, M.F. (Id. at PageID #1, 5.) An

Individualized Education Program (“IEP”) team classified J.C.M. as a student with disability under

the category of Multiple Disabilities, demonstrating profound delays in cognitive, communication,

social-emotional, adaptive behavior, and fine/gross motor development. (Id. at PageID #5.)

On February 6, 2017, M.F. completed the Behavior Assessment System for Children, Second

Edition (BASC-II) – Parent Rating Scale for children ages 6-11. (Id. at PageID #6.) According to

Plaintiff, “[t]he results showed that [J.C.M.] was ‘At-Risk’ or ‘Clinically Significant’ in all areas of

adaptive skills.” (Id.)

Two Evaluation Team Reports (“ETRs”), dated March 1, 2017 (“2017 ETR”) and February

26, 2020 (“2020 ETR”), were created in connection with J.C.M. (Id. at PageID #5.) According to

Plaintiff, “[b]oth ETRs indicate that J.C.M.’s level of functional independence is extremely limited

for his age, and both conclude with the need for intensive services.” (Id.)

At the time of his 2017 assessment, J.C.M. was able to crawl (reciprocally) on the floor or

walk on his knees for a few steps as a means of mobility. (Id. at PageID #6.) J.C.M.’s academic

skills could not be assessed in the 2017 ETR due to his verbal, motoric, and sensory impairments.

2 Plaintiff’s Complaint was filed on December 1, 2023. (Doc. No. 1.) Therein, the Complaint alleges that J.C.M. is a

seventeen-year-old child. (Id. at PageID #1.) The Court recognizes that it has since been more than one year since the

filing of the Complaint, and thus, J.C.M. is no longer seventeen years old. For purposes of consistency, however, and

because the allegations are made in reference to J.C.M. as of December 1, 2023, the Court will rely on the language of

the Complaint.

2

(Id. at PageID #7.) Numerous parties contributed to the 2017 ETR including a speech and language

pathologist, physical therapist, and occupational therapist, each of whom provided various

conclusions and recommendations.3 (Id. at PageID #6–7.) On March 19, 2019, an annual review

meeting was held to develop J.C.M.’s IEP.4 (Id. at PageID #8.)

J.C.M. was later assessed by the school psychologist using various assessment scales. (Id. at

PageID #12.) Per the 2020 ETR, J.C.M.’s development age across adaptive domains ranged between

2 to 11 months. (Id.) The school psychologist observed that J.C.M. needed to continue developing

adaptive behavior skills to increase independence in his settings. (Id.) On February 10, 2020, J.C.M.

was evaluated again by various individuals including a speech and language pathologist and

intervention specialist. (Id. at PageID #12–14.) The 2020 ETR provided that the need for a full-time

nurse may be revisited when choosing J.C.M.’s high school, and that J.C.M. continued to display

profound deficits in functioning and continued to demonstrate a need for intense, targeted intervention

supports in a functional curriculum. (Id. at PageID #14.)

On February 26, 2020, an IEP meeting for J.C.M. took place to develop an IEP for February

2020 through February 2021 (“2020-21 IEP”). (Id. at PageID #14.) As part of the 2020-21 IEP, the

“IEP team provided the following specially designed services: direct instruction with an intervention

specialist for 40 minutes once per week, and physical therapy services to work on gait training and

other therapeutic exercises for 20 minutes per session, 6 sessions per semester.” (Id. at PageID #14–

3 For example, Plaintiff alleges that “[t]he physical therapist concluded that J.C.M. needs a wheelchair-accessible school

building, a trained adult caregiver for his wheelchair mobility and walking supervision, designed time out of his

wheelchair to prevent skin breakdown and muscle contractures, as well as continued monitoring for the fit and function

of his adapted equipment.” (Doc. No. 1 at PageID #6.) Similarly, “[t]he occupational therapy assessment conducted in

the 2017 ETR reported that J.C.M. is dependent on staff for all manner of self-care, and must be supervised at all times

to prevent the risk of choking.” (Id. at PageID #7.)

4 The complete allegations relating to this meeting can be found in the Complaint. (See Doc. No. 1 at PageID #8–12.)

3

15.) The IEP team also “provided 5 direct speech and language therapy sessions per semester with a

pathologist, for 15 minutes per session.” (Id. at PageID #15.) Finally, the 2020-21 IEP “also checked

that [J.C.M.] did not require specially designed physical education, nor did he require ESY [extended

school year] services throughout the summers.” (Id.) Plaintiff alleges that the 2020-21 IEP “failed

to recommend evidence-based methodologies to assist [J.C.M.] with learning, as well as to address

recognized behaviors that were interfering with [his] ability to learn, and failed to include goals and

services to address adaptive behaviors and self-help skills, despite serious deficits indicated in those

areas.” (Id.)

Another annual review was held on February 22, 2021, to develop an IEP for February 2021

through February 2022 (“2021-22 IEP”). (Id.) According to Plaintiff, “[t]his IEP was almost identical

to the 2020-21 IEP” and “failed to provide the intensive services their own ETRs repeatedly urged,

with extremely limited sessions in speech and intervention, and no direct physical or occupational

therapy services.” (Id.)

B. Administrative Proceedings

On February 14, 2022, Plaintiff filed a Demand for Due Process Hearing with CMSD. (Id. at

PageID #2.) On March 11, 2022, Plaintiff filed an Amended Demand for Due Process Hearing with

CMSD. (Id. at PageID #3.) On May 3, 2022, Plaintiff filed a second Demand for Due Process

Hearing with CMSD and, two days later, filed a Motion for Consolidation of the cases which was

granted by the Impartial Hearing Officer (“IHO”). (Id.) Between May 11, 2022, and October 7,

2022, the IHO conducted twelve hearings during which twenty witnesses were called and 1917 pages

of transcript were recorded. (Id.)

4

Plaintiff’s Demands for Due Process Hearing included various claims against CMSD and

requests from the IHO. (Id. at PageID #3.) The parties dispute the total number of claims that were

asserted. Specifically, Plaintiff asserts that there were 13 claims alleging denials of a Free and

Appropriate Education (“FAPE”) included in Plaintiff’s Amended Due Process Complaint, while

CMSD contends that Plaintiff asserted 58 claims against it. (See Doc. No. 24 at PageID #229)

(discussing parties’ positions). Notwithstanding the disagreement as to the exact number or

characterization of the claims, the parties agree as a general matter that the claims involve Plaintiff’s

allegations that CMSD denied J.C.M. a FAPE during the years 2019-2023, as well as Plaintiff’s

request for an order directing CMSD to take certain remedial actions or provide other services or

necessary relief. (Doc. No. 1 at PageID #3, 16–20; Doc. No. 8 at PageID #68–72.)

On March 3, 2023, the IHO issued a 342-page decision. (Doc. No. 1 at PageID #4.) Plaintiff

and Defendant agree that at a minimum, the IHO ruled in favor of Plaintiff on five of the claims

brought. (See id.; Doc. No. 8 at PageID #72.) Although Plaintiff requested, in relevant part, that the

IHO order CMSD to provide J.C.M. a “[d]aily 1:1 trained aide throughout the day,” the IHO did not

order such relief. (See IHO Decision, pg. 323.)

In his decision, the IHO evaluated whether the February 15, 2022 IEP (“February 2022 IEP”)

provided an appropriate program and placement. (See id. at pg. 314.) In relevant part, the IHO

concluded that the testimony of Dr. Howard Shane specifically (Plaintiff’s sole expert witness) “did

not establish that the [February 2022 IEP] failed to provide the Student with an appropriate program

and placement during the 2021-2022 school year period.” (Id. at pg. 315.) The IHO indicated

numerous bases for this decision, including the following:

“[Dr. Shane] had never met the Student in person, had not conducted any assessments or

evaluations of the Student and had not observed the Student in the classroom. He had not

5

interviewed the Petitioner nor had any conversations with the Petitioner. He had no knowledge

of the Student that was based upon his direct assessment or evaluation of the Student. He had

only reviewed some of the Student’s education records for approximately two to three hours

in preparation for his testimony at this hearing and had not been present at this hearing any

time prior to his testimony.

He explained how children with disabilities are evaluated in the Augmentative

Communication Program at Boston Children’s Hospital, but his testimony did not establish

whether this method of evaluation is the usual and customary ACC evaluation method or a

hospital-based evaluation program that far exceeds the usual and customary ACC evaluation

method.

His education record review included the Student’s February 15, 2022 IEP. His testimony that

this IEP provided only 200 minutes of specially designed instruction over the course of a year

was incorrect.”

(Id. at pg. 314) (citations omitted).

On March 20, 2023, Plaintiff filed a Notice of Appeal with the Ohio Department of Education

Office for Exceptional Children. (Doc. No. 1 at PageID #5; Doc. No. 8 at PageID #73.) On

September 21, 2023, the State Level Review Officer (“SLRO”) issued a decision affirming the IHO’s

decision in its entirety. (Id.)

C. Proceedings in this Court

On December 1, 2023, M.F., in her own capacity and on behalf of J.C.M., filed a Complaint

against CMSD in this Court seeking judicial review of the administrative decisions. (Doc. No. 1.) In

the Complaint, Plaintiff sets forth various claims under the Individuals with Disabilities Education

Improvement Act (“IDEA”), 20 U.S.C. § 1415 et. seq. and its implementing state and federal

regulations. (Id. at PageID #1.) Plaintiff alleges that J.C.M. was denied a FAPE for the 2019-2023

school years. (Id. at PageID #20.) Plaintiff further alleges, in relevant part, that the IHO and SLRO

erred in failing to order CMSD to “provide J.C.M. with the needed service of a 1:1 paraprofessional

…” (Id.)

6

On April 29, 2024, CMSD filed an Amended Answer (“Answer”) and Amended Third-Party

Complaint against Third-Party Defendants Cuddy Law Firm (“Cuddy”) and Alia E. Green (“Green”).

(Doc. No. 8.) On June 28, 2024, Plaintiff filed a Motion to Strike Portions of Defendant’s Answer

and Cuddy filed a Third-Party Motion to Strike Third-Party Complaint (collectively, “Motions to

Strike”). (Doc. Nos. 10, 11.) On October 24, 2024, the Court issued a Memorandum Opinion and

Order denying the Motions to Strike. (Doc. No. 24.)

On January 23, 2025, the Court conducted a telephonic case management conference

(“CMC”) with the parties. (See 1/23/2025 Docket Entry.) At the CMC, the parties indicated that they

intended to file motions to supplement the record. (Id.) Accordingly, the Court set a deadline of

March 14, 2025, for the parties to file their motions to supplement, and the Court indicated that it

would set a schedule for the parties to file their merits briefs following a ruling on the motions to

supplement. (Id.)

On March 13, 2025, Plaintiff filed her Motion to Supplement. (Doc. No. 34.) On March 28,

2025, CMSD filed its Opposition to Plaintiff’s Motion (“CMSD’s Opposition”). (Doc. No. 37.) On

April 3, 2025, Plaintiff filed her Reply in Support of her Motion (“Plaintiff’s Reply”). (Doc. No. 38.)

On March 14, 2025, CMSD also filed its own Motion to Supplement. (Doc. No. 35.) On

March 28, 2025, Plaintiff filed her Opposition to CMSD’s Motion (“Plaintiff’s Opposition”). (Doc.

No. 36.) On April 4, 2025, CMSD filed its Reply in Support of its Motion (“CMSD’s Reply”). (Doc.

No. 39.)

Accordingly, Plaintiff and CMSD’s Motions are ripe for review.

7

II. Statutory Framework

“The Individuals with Disabilities Education Act (‘IDEA’), 20 U.S.C. §§ 1400–1482, offers

state governments federal funding to help educate children with disabilities.” Gibson v. Forest Hills

Local School Dist. Bd. of Educ., 655 Fed. Appx. 423, 426 (6th Cir. 2016) (citing 20 U.S.C §

1411(a)(1)). In exchange for those funds, participating states must adopt policies and procedures that

implement the Act's promise of making a FAPE available to every eligible child. See 20 U.S.C. §

1412(a)(1)(A). Ohio has opted to receive IDEA funds. See Gibson, 655 Fed. Appx. at 426 (citing

Bd. of Educ. of Austintown Local Sch. Dist. v. Mahoning Cty. Bd. of Mental Retardation &

Developmental Disabilities, 613 N.E.2d 167, 172 (Ohio 1993)).

“The lynchpin of the IDEA is a document known as the ‘individualized educational program’

(‘IEP’).” Gibson, 655 Fed. Appx. at 426 (citing Honig v. Doe, 484 U.S. 305, 311–12 (1988)). Each

academic year, an “IEP Team” comprised of an eligible child's parents, his teachers, a representative

of the local educational agency, and, whenever appropriate, the child himself, meets to discuss the

child's progress and educational goals. 20 U.S.C. § 1414(c)(1), (d)(1)(A)–(B), (d)(4)(A); Ohio Admin.

Code § 3301–51–07(I)(1), (J)(2)(a). The product of these meetings is the IEP, a document that

evaluates the child's academic achievement and functional performance, as well as his short-term and

long-term goals. 20 U.S.C. § 1414(d)(1)(A)(i)(I)–(II), (d)(3)(B); Ohio Admin. Code § 3301–51–

07(E)(1)(b)–(c). The IEP also specifies the services that the school will provide to help the child to

accomplish his goals and sets forth the criteria that the IEP Team will use to evaluate the child's

progress over the course of the coming year. 20 U.S.C. § 1414(d)(1)(A)(i)(III)–(IV); Ohio Admin.

Code § 3301–51-07(E)(1)(d)–(e).

8

When parents feel that a school district has failed to comply with its obligations under the

IDEA, they may file an action in federal court. 20 U.S.C. § 1415(i)(2)(A)–(B); Ohio Admin. Code §

3301–51–05(K)(16)(a)–(b). However, “because federal courts are ‘generalists with no expertise in

the educational needs’ of students who have disabilities, the IDEA requires participating states to

provide an impartial ‘due process hearing’ to any parent who believes her child has not received a

FAPE and makes the exhaustion of that remedy a prerequisite for review in federal court.” Gibson,

755 Fed. Appx. at 427. See also Burilovich v. Bd. of Educ. of Lincoln Consol. Schools, 208 F.3d 560,

566 (6th Cir. 2000).

Ohio has created a two-stage procedure for resolving IDEA disputes. If an aggrieved party

files a due process demand or complaint, the Ohio Department of Education appoints an “impartial

hearing officer” (“IHO”), a neutral arbiter with both legal training and familiarity with the IDEA and

attendant state and federal regulations, to adjudicate the dispute. See Gibson, 755 Fed. Appx. at 427;

Ohio Admin. Code § 3301–51–05(K)(10)(c)(i). After receiving evidence and compiling a record, the

IHO renders a decision as to whether the school district has denied the pupil a FAPE. Ohio Admin.

Code § 3301–51–05(K)(10)–(13). Any party who is dissatisfied with the IHO's decision may file an

appeal with the Ohio Department of Education, which then appoints another neutral arbiter called a

“state level review officer” (“SLRO”) to review the record and issue an independent decision on the

merits. Ohio Admin. Code § 3301–51–05(K)(13)(b).

A party may then challenge the SLRO's decision in federal district court. Ohio Admin. Code

§ 3301–51–05(K)(16)(a)–(b). In such an action, the IDEA instructs that a federal court: (i) shall

receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request

of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief

9

as the court determines is appropriate. Ohio Admin. Code § 3301–51–05(K)(16)(c)(i)–(iii) (mirroring

20 U.S.C. § 1415(i)(2)(C)(i)–(iii)).

III. Analysis

Plaintiff and CMSD have each independently moved to supplement the administrative record.

(Doc. Nos. 34, 35.) The Court will address each Motion separately, below.

A. CMSD’s Motion to Supplement

The Court first turns to CMSD’s Motion to Supplement. In its Motion, CMSD seeks to

supplement the record to include documents “reflecting the grounds for appeal and assignments for

error made by Plaintiffs before the Ohio Department of Education’s Office for Exceptional Children”

as well as the “briefing presented by the parties to the SLRO and the SLRO’s decision,” which are

currently missing from the current administrative record. (Doc. No. 35 at PageID #353–54.) CMSD

maintains that these documents must necessarily be included in the administrative record because

Plaintiff is challenging the decisions made by the SLRO. (Id. at PageID #357–58.)

In her Opposition, Plaintiff indicates that she does not oppose the inclusion of this additional

evidence into the record. (Doc. No. 36 at PageID #491.) Plaintiff notes that the evidence in question

“should have been included in the administrative record from the outset but for an error by the state

agency responsible for certifying and submitting the record to the Court,” and that the relief is “more

properly characterized as completing the record rather than supplementing it.” (Id. at PageID #491–

92.) Finally, Plaintiff asserts that the records attached to CMSD’s Motion should have been redacted.

(Id. at PageID #495.)

In its Reply, CMSD points to Plaintiff’s indication that they “do not oppose the inclusion of

the additional evidence identified in the [M]otion.” (Doc. No. 39 at PageID #516–17.) CMSD also

10

contends that it was not necessary to redact the documents pursuant to Local Rule 8.1 and Fed. R.

Civ. P. 5.2, but that it “has no objection to doing so and has indicated as much to Plaintiffs’ counsel.”

(Id. at PageID #519.)

When appealing the decisions of an IHO and SLRO to a federal district court, the court “shall

receive the records of the administrative proceedings.” 20 U.S.C. § 1415(i)(2)(C)(i); Ohio Admin.

Code § 3301–51–05(K)(16)(c)(i). Here, neither party disputes that the information CMSD seeks to

include should have been included in the administrative record from the outset but for an agency

error. The Court thus grants CMSD’s Motion to include such information in the record. Finally, the

Court finds that it is appropriate to redact J.C.M’s identifying information from such records.5

Accordingly, the Court hereby grants CMSD’s Motion.6

5 In her Opposition, Plaintiff contends that CMSD should have redacted the proposed documents. (Doc. No. 36 at PageID

#494.) In its Reply, CMSD indicates that it does not oppose redaction, but maintains that it was not required to do so.

(Doc. No. 39 at PageID #518–19.) CMSD acknowledges that Local Rule 8.1(a) requires redaction for the names of minor

children but contends that Local Rule 8.1(d) does not extend this requirement to filings set forth in Fed. R. Civ. P.

5.2(b)(1)-(6), which includes “the record of an administrative or agency proceeding.” (Id.) CMSD also notes that J.C.M.

is now over the age of 18. (Id. at PageID #519.) While it is true that Rule 5.2(b) exempts from redaction the “record of

an administrative or agency proceeding,” Rule 5.2(e) permits a court by order in a case to “require redaction of additional

information.” Fed. R. Civ. P. 5.2(e). In its Memorandum Opinion and Order dated October 24, 2024, the Court indicated

its concerns with filing “sensitive identifying information” related to J.C.M. on the public docket, given that J.C.M. was

a minor and pseudonyms had been used in every filing thus far. (Doc. No. 24 at PageID #240.) The Court then restricted

the identifying information from the public docket and “remind[ed] counsel to exercise greater caution when filing

sensitive information going forward.” (Id.) Although J.C.M. may have since reached the age of 18, the Court concludes

that pseudonyms are nevertheless still appropriate given that the documents in this case wholly relate to the period in

which he was a minor. Accordingly, the Court will only admit the redacted version of CMSD’s proposed records (Doc.

No. 39-1) and has since restricted from the public docket the unredacted version attached to CMSD’s Motion (Doc. No.

35-1). Finally, to avoid any confusion going forward, the Court hereby orders that M.F. and J.C.M.’s identifying

information shall be redacted from any future public filings.

6 Finally, the Court notes that the parties raise numerous other arguments regarding: (i) whether this should have been

characterized as a “Motion to Supplement the Record” or a “Motion to Complete the Record”; (ii) whether the parties

were required to “meet-and-confer” regarding the records sought to be included by CMSD or whether “unnecessary

motion practice” has transpired; and (iii) the appropriateness of CMSD’s discussion as to the relevance of such

information. (See generally Doc. Nos. 35, 36, 39.) The Court finds it unnecessary to address these arguments. Further,

the Court declines at this juncture to make any determinations regarding any interpretation of the newly included

information. The parties will have the opportunity to present their respective positions in their merit briefs for this Court’s

review.

11

B. Plaintiff’s Motion to Supplement

The Court next turns to Plaintiff’s Motion to Supplement. (Doc. No. 34.) In her Motion,

Plaintiff seeks to include two sets of documents: (1) documents related to an Amended 2022-23 IEP

Plan dated November 3, 2022,7 including two pages of the plan itself and a “prior notice” associated

therewith (hereinafter “Amended 2022-23 IEP documents”) (Doc. Nos. 34-1, 34-2); and (2) purported

emails from Michelle Nameth Baskin to Coralise M. Terwilliger-Seman dated May 1, 2023

(hereinafter “Emails”) (Doc. No. 34-3). The Court will address each set of documents in-turn, below.

1. Amended 2022-23 IEP Documents

Plaintiff first seeks to supplement the record with the Amended 2022-23 IEP documents.

CMSD contends that these documents should not be included in the record for two reasons. First,

CMSD asserts that the Amended 2022-23 IEP documents “risk confusing the issues and changing the

character of this proceeding.” (Doc. No. 37 at PageID #501.) Second, CMSD argues that Amended

2022-23 IEP documents are “incomplete portions of other documents” and should be excluded under

the “best evidence rule.” (Id. at PageID #500.) The Court will address each argument, below.

a. Relevance to Issues Before Court

In her Motion, Plaintiff argues that the Amended 2022-23 IEP documents are relevant to the

Court’s review in determining whether the IHO and SLRO erred in “failing to find that [J.C.M.]

7 In her Motion, Plaintiff indicates that these documents are dated November 7, 2022. (Doc. No. 34 at PageID #335.)

Later in her Motion, Plaintiff contends that such documents show that J.C.M.’s IEP was amended on November 2, 2022.

(Id. at PageID #340.) Upon the Court’s independent review, the documents indicate that the date of amendment for the

Amended 2022-23 IEP and date of notice was November 3, 2022. (See Doc. No. 34-1 at PageID #346; Doc. No. 34-2 at

PageID #348.) The Court will thus refer to November 3, 2022 as the appropriate date for these documents, and the parties

may clarify as necessary in their merit briefs to be submitted to the Court.

12

required a 1:1 paraprofessional8 in order to receive his [FAPE] and in failing to order as relief the

requested additional evaluations and 1:1 paraprofessional … [and] an additional year of eligibility for

services for each year that a 1:1 paraprofessional was denied.” (Doc. No. 34 at PageID #336.)

Plaintiff asserts that the Amended 2022-23 IEP documents indicate that CMSD’s later decision to

amend the IEP to include a 1:1 paraprofessional “was based on the same documents used to develop

the original 2022-2023 IEP.” (Id. at PageID #340.) In other words, Plaintiff contends that that CMSD

relied on the “then-current IEP and [2020] ETR data to reach this determination, both of which were

presented in the hearing before IHO Alexander, during which Defendant argued [J.C.M.] did not

require a 1:1 paraprofessional, and the IHO declined to order one as part of the relief.” (Id. at PageID

#342.) Plaintiff maintains that the Amended 2022-23 IEP documents, which indicate that J.C.M.

“requires a one-to-one (1:1) paraprofessional,” “underscore CMSD’s awareness of the severity of

[J.C.M.’s] needs and the essential role a 1:1 paraprofessional played in supporting him within the

school environment as well as his need for additional evaluations,” “provide compelling evidence

that CMSD knew [J.C.M.] required this support but failed to provide it until after the hearing

concluded,” and show that the “[IHO] and [SLRO] failed to recognize the necessity of this support in

their decisions.” (Id. at PageID #343; Doc. No. 34-2 at PageID #348.)

8 Upon review of the record, the Court notes that the IHO and SLRO appear to interchangeably use the term “1:1

paraprofessional” and “1:1 aide” in relation to Plaintiff’s requested relief. The Court presumes for purposes of this

Opinion that this interchangeable use refers to the same 1:1 support requested by Plaintiff for J.C.M. See also Ohio

Admin. Code § 3301–51–01(B)(47) (“‘Paraprofessional services’ include services provided by educational agency

employees who are adequately trained to assist in the provision of special education to children with disabilities.

Paraprofessionals work under the supervision of teachers, intervention specialists, and/or related service providers. Other

titles used to identify these service providers include teacher assistants, educational aides, school psychology aides,

occupational therapy assistants, physical therapist assistants, and job coaches.”) (emphasis added).

13

In its Opposition, CMSD argues that the Amended 2022-23 IEP documents are not probative

of the actual question before the Court and “risk confusing the issues and changing the character of

this proceeding.” (Doc. No. 37 at PageID #501.) CMSD contends that the “issue surrounding the

1:1 paraprofessional is not whether a 1:1 paraprofessional was needed or beneficial,” but rather

“whether a 1:1 paraprofessional was appropriate ‘compensation’ … for the denial of FAPE.” (Id.)

Thus, CMSD asserts that the Amended 2022-23 IEP documents “at most, are evidence that CMSD

believed that a 1:1 paraprofessional was potentially beneficial and warranted.” (Id.) CMSD posits

that this “is not new or a smoking gun [as] CMSD offered a 1:1 paraprofessional in its April 1, 2022

offer of settlement,” and that adding these documents to the administrative record “risks confusing

the questions before the Court.” (Id. at PageID #501–02.)

In her Reply, Plaintiff maintains that the Amended 2022-23 IEP documents are “directly tied

to the record already before the Court.” (Doc. No. 38 at PageID #510.) Specifically, Plaintiff

contends that these documents are “an amendment to the February 15, 2022 IEP, which was presented

at the due process hearing before [the] IHO,” and that “[t]he November 2022 amendment added a 1:1

paraprofessional to the February 2022 IEP based on the same evaluative data available to CMSD

when it continually failed to provide that support.” (Id.) Plaintiff further asserts that it has

“consistently maintained that CMSD’s failure to provide a 1:1 paraprofessional during the school

year at issue, including after J.C.M. had a serious accident in his wheelchair, was itself a denial of

FAPE,” noting that CMSD’s position that “the matter of the 1:1 paraprofessional relates only to the

relief ordered in this matter … ignores the fact that the failure of CMSD to provide a 1:1

paraprofessional on any of J.C.M.’s relevant IEPs was itself a denial of FAPE.” (Id. at PageID #512–

13.)

14

“A district court reviewing an ALJ’s [administrative law judge] decision in an IDEA case ‘(i)

shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the

request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate.’” Somberg on behalf of Somberg v. Utica Community

Schools, 908 F.3d 162, 174 (6th Cir. 2018) (citing 20 U.S.C. § 1415(i)(2)(C)). In doing so, “[t]he

court may consider evidence outside of the administrative record and issues that were not presented

to the ALJ if they are relevant to the issues that were before the ALJ.” Id. (quoting Deal v. Hamilton

Cty. Bd. of Educ., 392 F.3d 840, 850–51 (6th Cir. 2004)).

The Sixth Circuit “has taken an expansive view of the scope of additional evidence that may

supplement the administrative record” and “has declined to adopt the narrow position of other circuits

‘that additional evidence is admissible only in limited circumstances, such as to supplement or fill in

the gaps in the evidence previously introduced.’” Adam Wayne D. ex rel. David D. v. Beechwood

Independent School Dist., 482 Fed. App’x. 52, 58 (6th Cir. 2012) (citing Deal, 392 F.3d at 850).

Moreover, evidence that postdates the ALJ’s decision may be “admissible in IDEA cases as long as

it is helpful in determining the validity of the original IEP.” Deal, 392 F.3d at 852 (citing

Metropolitan Bd. of Public Educ. v. Guest, 193 F.3d 457, 463 (6th Cir. 1999)); see also id. (“[T]he

mere fact that [a witness] was not involved in the case until after the ALJ’s decision was entered is

not determinative on the issue of the admissibility of her testimony.”).

“When a district court looks beyond the administrative record, its decision to do so is reviewed

under the abuse-of-discretion standard.” Somberg, 908 F.3d at 174. “A district court could … be

found to have abused its discretion if it allowed additional evidence to change the character [of] the

hearing from one of review to a trial de novo.” Id. at 174–75. “The district court must therefore

15

avoid ‘using additional evidence to rule upon issues beyond those presented to the ALJ.” Id. at 175

(citing Guest, 193 F.3d at 463); see, e.g., id. (finding that the district court “determin[ing] the amount

of educational loss that [student] had suffered due to the inadequate IEP … [was] an issue inextricably

linked to the ALJ’s ruling on whether [student] was denied a FAPE for that school year”).

The Court finds it appropriate to supplement the administrative record with the Amended

2022-23 IEP documents. (See Doc. Nos. 34-1, 34-2.) First, upon review of the administrative record,

the Court finds that the issue of whether CMSD’s failure to provide a 1:1 paraprofessional was itself

a denial of FAPE was presented to the IHO.9 Second, even if the 1:1 paraprofessional issue only

existed within the context of whether the IHO should have found such relief to constitute an

appropriate “remedy” to a denial of FAPE, the Court still finds that issue to be “relevant to the issues

that were before the ALJ.” Somberg, 908 F.3d at 174. The IDEA instructs district courts, upon

review of the administrative record and additional evidence requested by the parties, to “grant such

relief as the court determines is appropriate.” § 1415(i)(2)(C)(iii). Thus, if Plaintiff can demonstrate

a denial of FAPE, it would be within the Court’s scope of review to evaluate whether a 1:1

paraprofessional is appropriate “relief” under § 1415(i)(2)(C)(iii).10

9 (See, e.g., Petitioner’s Closing Brief to IHO, pg. 79) (“[T]he District failed to evaluate whether a 1:1 aide was an

appropriate component of [J.C.M.’s] special education program. At the very least, [CMSD] was obligated to assess and

evaluate whether a 1:1 aide was appropriate to offer [J.C.M.] a FAPE … The fact that [J.C.M.] was not engaging in

learning activities in the absence of 1:1 support clearly and unequivocally demonstrates that such service was necessary

and appropriate in order to allow him to access his education, and provide him with a FAPE. In addition to being necessary

to offer [J.C.M.] a FAPE, a 1:1 aide was necessary to ensure [J.C.M.’s] safety in the school setting …”) (emphasis added);

(see also id. at pgs. 59–60, 78–79, 83, 88, 92) (discussing J.C.M.’s need for 1:1 aide and CMSD’s failure to provide as

such).

10 Similarly, the issue of whether J.C.M. was entitled to a 1:1 paraprofessional could be relevant to the Court’s decision

to “grant such relief as the court determines is appropriate” because the Sixth Circuit has concluded that a district court

“could appropriately award judgment for what it would now cost [a student] to obtain the educational services she says

she ought to have received earlier …” § 1415(i)(2)(C)(iii); Somberg, 908 F.3d at 176; see also id. (“[T]he record supports

the district court’s exercise of discretion in this case to place the disabled child ‘in the same position’ that he ‘would have

occupied but for the school district’s violations of IDEA.’”).

16

Importantly, it is worth noting that a review of the record reveals that the scope of the IHO’s

relief (or lack thereof) and request for a 1:1 paraprofessional was presented to the SLRO. (See Doc.

No. 39-1 at PageID #648–49.) Specifically, the SLRO noted that the “remainder of Petitioner’s

assignments of error relate to things that the IHO did not order; … failing to order Respondent to

provide a 1:1 paraprofessional for the denial of FAPE.” (Id. at PageID #648.) The SLRO went on to

indicate that “great latitude should be given to the discretion of the IHO … [as] [i]t is greatly

subjective” and “absent a clear abuse of that discretion or clear error,” the SLRO would not “substitute

what [he] might order as a substitute for the IHO’s order of compensation.” (Id. at PageID #649.)

Thus, while the SLRO ultimately deferred to the IHO as the initial fact finder, the mere fact that the

SLRO addressed the issue and found no “clear abuse of … discretion or clear error” supports, at a

minimum, that the Amended 2022-23 IEP documents are “relevant to the issues that were before the

ALJ.” (Id.); Somberg, 908 F.3d at 174.

Finally, the Court is not persuaded by CMSD’s arguments to the contrary. First, CMSD

asserts that Plaintiff fails to explain why the Amended 2022-23 IEP documents were not presented to

the SLRO, why they are relevant to the Court’s review of those rulings, and that considering these

documents “risk[s] converting this proceeding to a trial de novo.” (Doc. No. 37 at PageID #499–

500.) Yet there is no requirement for evidence to have been presented previously11—rather, evidence

“not presented to the ALJ” may be considered so long as it is “relevant to the issues that were before

the ALJ.” Somberg, 908 F.3d at 174 (emphasis added). Moreover, the Court finds that the potential

11 Moreover, Plaintiff cites various delays in obtaining these documents from CMSD, including CMSD’s “failure to

cooperate when Plaintiff sought the full document in January 2025.” (See Doc. No. 38 at PageID #509.) CMSD did not

seek leave to file a sur-reply to contest or deny this allegation.

17

relevance of the documents is adequately explained above.12 See supra. Finally, the Court is not

convinced that the few pages Plaintiff seeks to admit will “risk converting this proceeding to a trial

de novo” as CMSD contends. Notwithstanding that Plaintiff merely seeks to add a few pages to a

record already spanning thousands of pages,13 these documents merely address issues previously

presented before the IHO and SLRO or relevant to this Court’s review under § 1415(i)(2)(C)(iii).

And the Sixth Circuit has permitted courts to rely on additional evidence that contradicts an ALJ’s

findings, instructing that “where the district court hears additional evidence it is ‘free to accept or

reject the agency findings depending on whether those findings are supported by the new, expanded

record.’” Deal v. Hamilton County Dept. of Educ., 258 Fed. App’x. 863, 865 (6th Cir. 2008).

Accordingly, the Court concludes that the Amended 2022-23 IEP documents are relevant to

this Court’s review.

b. Best Evidence Rule

The Court next turns to CMSD’s arguments regarding the “best evidence rule.” (Doc. No.

37.)

In its Opposition, CMSD asserts that the Amended 2022-23 IEP documents should be

excluded as being “incomplete portions of other documents.” (Doc. No. 37 at PageID #500.)

Specifically, CMSD contends that these documents “appear to be pictures of certain pages of a

12 See also Guest, 193 F.3d at 463 (finding after the fact evidence to be admissible in IDEA cases as long as it is helpful

in determining the validity of the original IEP); Deal, 392 F.3d at 852 (similar); Somberg, 908 F.3d at 175 (“Evidence of

his abilities and progress in the years before and after the IDEA violation is therefore relevant in determining whether he

suffered a loss during the 2012-2013 school year.”) (emphasis added).

13 Cf. Dougall v. Copley Fairlawn City School District Board of Education, 2019 WL 1243040, at *4 (N.D. Ohio Mar.

18, 2019) (denying motion to supplement where “[t]he administrative record … is already 3,877 pages in length, and

plaintiffs seek to add another 800+ pages”).

18

document”—namely, “pages 25 and 26 of an IEP” and “pages 1 and 3 of a 26 page [sic] IEP (perhaps

the same IEP from which [Doc. No. 34-1] was taken).” (Id. at PageID #497, 500.) Thus, CMSD

argues that the “best evidence rule” requires an “original writing,” which it submits Plaintiff has failed

to provide. (Id. at PageID #500.)

In her Reply, Plaintiff asserts that CMSD “fails to acknowledge that it refused to produce the

entire IEP when asked in January 2025, despite CMSD being the author and custodian of the

document.” (Doc. No. 38 at PageID #510.) Specifically, Plaintiff contends that “[o]n January 17,

2025, Plaintiff provided Defendant with a draft of its Motion to Supplement … [and] specifically

asked Defendant to produce the full IEP, which CMSD authored and possesses in its entirety.” (Id.)

According to Plaintiff, “Defendant did not express any concerns about the documents in response to

Plaintiff’s January 17, 2025 email or during a subsequent phone call between counsel.” (Id.) Plaintiff

thus argues that “Defendant now faults Plaintiff for submitting excerpts, even though it has possession

of the full documents, and seeks to exclude the very evidence it refused to produce.” (Id.)

CMSD did not seek leave to file a sur-reply to contest or deny these allegations.

Federal Rule of Evidence 1002 provides that “[a]n original writing, recording, or photograph

is required in order to prove its content unless these rules or a federal statute provides otherwise.”

Fed. R. Evid. 1002. In relevant part, however, under Federal Rule of Evidence 1004, “[a]n original

is not required and other evidence of the content of a writing, recording, or photograph is admissible

if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; *** [or] (c)

the party against whom the original would be offered had control of the original; was at that time put

on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or

hearing; and fails to produce it at the trial or hearing.” Fed. R. Evid. 1004.

19

The Court finds that the Amended 2022-23 IEP documents are not barred by the best evidence

rule. Here, Plaintiff represents that the original documents could not be obtained because CMSD

refused to provide them. (Doc. No. 38 at PageID #510.) CMSD does not challenge this narrative.

Nor has CMSD claimed any bad faith on behalf of Plaintiff as to the “incomplete” documents. (Doc.

No. 37 at PageID #500.) Accordingly, pursuant to Rule 1004, the Amended 2022-23 IEP documents

are admissible. To the extent that CMSD takes issue with the “incomplete” documents, it may

produce the original for supplementation into the record.14

Accordingly, for the foregoing reasons and in light of the Sixth Circuit’s “expansive view of

the scope of additional evidence that may supplement the administrative record,” the Court admits

the Amended 2022-23 IEP documents into the record. Adam Wayne D., 482 Fed. App’x. at 58. The

Court emphasizes that this holding is limited to resolving admissibility—namely, whether the

documents sought to be introduced into the record “are relevant to the issues that were before the

ALJ.” Somberg, 908 F.3d at 174. The Court has made no determination at this juncture as to the

interpretation, weight, or evidentiary value of these documents—rather, the parties may present their

respective positions on those issues in their merits briefs.

2. Emails

The Court next turns to the admissibility of the emails attached to Plaintiff’s Motion. (Doc.

No. 34-3 at PageID #350–51.)

In her Motion, Plaintiff seeks to admit “an email between BCBA Michelle Nameth Baskin

[hereinafter “Baskin”] and CMSD show[ing] that [J.C.M.] required additional evaluations to address

14 See Rule 1004, Advisory Committee Notes, 1972 Proposed Rules, Note to Paragraph (3) (“A party who has an original

in his control has no need for the protection of the rule if put on notice that proof of contents will be made. He can ward

off secondary evidence by offering the original.”).

20

his communication needs.” (Doc. No. 34 at PageID #341.) Plaintiff contends that the IHO discredited

the testimony of Dr. Shane, Plaintiff’s sole expert witness, because “Dr. Shane did not meet the

student personally, evaluate him directly, or observe him.” (Id. at PageID #343.) Thus, Plaintiff

asserts that “Baskin’s email, sent after she observed [J.C.M.], demonstrates that despite having not

met [J.C.M.] in person, Dr. Shane’s testimony that he required additional evaluation in [the areas of

speech-language and for a communication device] supported the Plaintiff’s claim and request for

relief.” (Id.)

In its Opposition, CMSD argues that Plaintiff understates the IHO’s reasons for discrediting

Dr. Shane.15 (Doc. No. 37 at PageID #502.) CMSD acknowledges that the IHO discounted Dr.

Shane’s testimony because he did not meet J.C.M. in person and never personally observed or

evaluated J.C.M. (Id.) However, CMSD contends that the IHO “also found that Dr. Shane failed to

establish that his method of evaluation is the usual and customary evaluation ACC method, rather

than a hospital-based evaluation that far exceeded the usual and customary ACC evaluation method.”

(Id.) Further, CMSD asserts that the IHO “spotlighted several instances in which Dr. Shane’s

testimony was simply incorrect based on the facts of the case.” (Id.) Accordingly, CMSD submits

that the emails—which “[b]y [Plaintiff’s] own admission” are offered as evidence “to bolster the

discounted testimony of her expert”—should be excluded because the IHO’s “decision to give little

weight to Dr. Shane’s testimony rested on much more than Dr. Shane’s lack of personal observation

or assessment.” (Id. at PageID #502–03.)

15 CMSD also argues that Plaintiff overstates the significance of the emails, that Baskin has not been qualified as an

expert, and that the emails are incomplete excerpts from a larger chain. (Doc. No. 37 at PageID #502–503.) However,

as explained further below, the Court finds it unnecessary to reach these issues.

21

In her Reply, Plaintiff reiterates that she “does not submit [the emails] as expert testimony,”

but “[r]ather, the email corroborates Dr. Shane’s testimony—discounted by the IHO because Dr.

Shane did not observe the student—by showing that a professional who did observe J.C.M. reached

a similar conclusion.” (Doc. No. 38 at PageID #511); (see also id. at PageID #513 (“But Plaintiff

does not offer the email as expert testimony, it is submitted as corroborating evidence supporting Dr.

Shane’s opinion that CMSD failed to appropriately address J.C.M.’s communication needs.”).)

“[W]hile the court must give the SLRO deference in matters requiring educational expertise,

the Court will not ‘second guess’ credibility determinations made by the IHO, who was best situated

to assess the credibility of testifying witnesses.” Dougall v. Copley-Fairlawn City School District

Board of Education, 2020 WL 435385, at *16 (N.D. Ohio Jan. 28, 2020) (Barker, J.) (citing cases).

Upon review of the record, the Court finds that the emails should not be supplemented into

the record because it is not appropriate to “second guess” the IHO’s credibility determination as to

Dr. Shane. In his decision, the IHO provided the following reasons in relation to his decision to

discount the testimony of Dr. Shane:

“[Dr. Shane] had never met the Student in person, had not conducted any assessments or

evaluations of the Student and had not observed the Student in the classroom. He had not

interviewed the Petitioner nor had any conversations with the Petitioner. He had no knowledge

of the Student that was based upon his direct assessment or evaluation of the Student. He had

only reviewed some of the Student’s education records for approximately two to three hours

in preparation for his testimony at this hearing and had not been present at this hearing any

time prior to his testimony.

He explained how children with disabilities are evaluated in the Augmentative

Communication Program at Boston Children’s Hospital, but his testimony did not establish

whether this method of evaluation is the usual and customary ACC evaluation method or a

hospital-based evaluation program that far exceeds the usual and customary ACC evaluation

method.

His education record review included the Student’s February 15, 2022 IEP. His testimony that

this IEP provided only 200 minutes of specially designed instruction over the course of a year

was incorrect.”

22

(See IHO Decision at pg. 314) (citations omitted). The IHO’s explanation for discounting Dr. Shane’s

testimony thus goes beyond the sole issue of Dr. Shane not having evaluated J.C.M. directly.

Specifically, the IHO provided a host of other reasons including that Dr. Shane: (i) “had only reviewed

some of [J.C.M.’s] education records for approximately two to three hours in preparation for his

testimony …”; (ii) did not establish whether the evaluation procedure he testified to “is the usual and

customary ACC evaluation method …”; and (iii) incorrectly testified that the February 15, 2022 IEP

“provided only 200 minutes of specially designed instruction over the course of a year” when in-fact

it “required 400 minutes per week for specially designed instruction.” (Id. (emphasis added).) In

other words, even if Plaintiff’s proposed emails remedied the concern regarding Dr. Shane’s lack of

direct assessment or evaluation of J.C.M., there exist numerous other independent reasons why the

IHO discounted Dr. Shane’s testimony.

Accordingly, the Court concludes that it would not be appropriate to “second guess” the

credibility determination made by the IHO as to Dr. Shane even if the emails were submitted.

Dougall, 2020 WL 435385, at *16 (citing cases). As Plaintiff specifically offers the emails “as

corroborating evidence supporting Dr. Shane’s opinion,” and given that the Court declines to “second

guess” the credibility determination of Dr. Shane, the Court hereby declines to admit the emails into

the record.16 (Doc. No. 38 at PageID #513).

IV. Conclusion

For the foregoing reasons, CMSD’s Motion to Supplement is GRANTED and Plaintiff’s

Motion to Supplement is GRANTED IN PART and DENIED IN PART. The Court admits

16 The Court finds it unnecessary to address the parties’ remaining arguments as to the Emails.

23

CMSD’s redacted supplemental record. (Doc. No. 39-1.) The Court also admits the Amended 2022-

23 IEP documents. (Doc. Nos. 34-1, 34-2.) The Court declines to admit Plaintiff’s submitted emails.

(Doc. No. 34-3.)

IT IS SO ORDERED.

Dated: July 30, 2025 s/ Pamela A. Barker

PAMELA A. BARKER

UNITED STATES DISTRICT JUDGE

24