F.C., et al v. Montgomery County Public Schools, et al.

Filing 37

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/27/2016. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

F.C., by and through his parents, E.C. and J.e.,
Plaintiff,
v.
MONTGOMERY COUNTY PUBLIC
SCHOOLS,
MONTGOMERY COUNTY BOARD OF
EDUCA nON and
JOSHUA STARR, in his official capacity as
Superintendent of Montgomery County Public
Schools,

Civil Action No. TDC-14-2562

Defendants.

MEMORANDUM OPINION
Plaintiff F .C., by and through his parents, E.e. (the "Mother") and J .C. (collectively the
"Parents"),

brings

this action

against

Defendants

Montgomery

County

Public

Schools,

Montgomery County Board of Education, and Joshua Starr, the Superintendent of Montgomery
County Public Schools (collectively, "MCPS"), seeking reversal of an April 15, 2014 decision by
an administrative

law judge ("ALJ") dismissing the Parents'

Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.

due process claim under the

99

1400-82 (2012). Presently

pending before the Court are the Parents' Motion for Summary Judgment and MCPS's CrossMotion for Summary Judgment.

The Court heard oral argument on the Motions on June 22,

2016. For the reasons set forth below, the Parents' Motion for Summary Judgment is DENIED,
and MCPS's Cross-Motion for Summary Judgment is GRANTED.

BACKGROUND
F.C. is student with disabilities who has attended Rockville High School ("RHS") in
Montgomery County and has been eligible for special education under the IDEA.

In 2009,

MCPS conducted a comprehensive educational evaluation of F.C., including a psychological
evaluation,

an educational

therapy evaluation.

assessment,

a speech/language

assessment,

and an occupational

Such evaluations are to be conducted every three years, unless the parent

and school agree that a reevaluation is not necessary.

34 C.F.R. ~ 300.303(b)(2) (2015).

On

May 24, 2012, MCPS convened a Reevaluation Planning and Determination Meeting at RHS
attended by F.C.'s mother.

At the meeting, the attendees reviewed and discussed existing data

relating to F.C., including records of the 2009 evaluation, F.C.'s report cards, and teacher
observations.

At the conclusion of the meeting, school officials concluded that no new data was

needed to determine F.C.'s educational and service needs, that F.C. continued to have a
disability, and that F.e. continued to have educational needs that require special education
services. No additional evaluations or specialized assessments were ordered.
On January 13,2014, the Parents requested that MCPS provide F.C. with an independent
educational evaluation ("IEE"), at public expense, consisting of a neuropsychological

evaluation,

a speech and language assessment, and an occupational therapy evaluation, because he had not
had an evaluation since May 2009. An IEE is an "evaluation conducted by a qualified examiner
who is not employed by the public agency responsible for the education of the child." 34 C.F.R.
~ 300.502(a)(3)(i).

By regulation, a student is entitled to an IEE at public expense if "the parent

disagrees with an evaluation obtained by the public agency."

34 e.F.R. ~ 300.502(b)(1).

If a

parent requests an IEE at public expense, the public agency must take one of three actions
without unnecessary delay: (1) ensure that an IEE is provided; (2) file a due process complaint

2

to defend the agency's evaluation of the student; or (3) show through a hearing why the parent's
proposed lEE does not meet agency criteria. 34 C.F.R. S 300.502(b)(2).
On January 28, 2014, MCPS offered to have school personnel conduct a full evaluation,
including a psychological evaluation, educational evaluation, speech and language evaluation,
and occupational therapy evaluation. The Parents rejected this offer. On January 31, 2014,
MCPS reiterated to the Parents by letter that it would conduct an MCPS evaluation of F.e. but
declined to fund an lEE.
The Parents filed a due process complaint on February 27, 2014, then an amended due
process complaint on February 28, 2014, in which they requested a hearing under the IDEA,
Section 504 of the Rehabilitation Act, 29 U.S.C. SS 701-961 (2012), the Education Article pfthe
Code of Maryland, and Title 13A of the Code of Maryland Regulations. They specifically
sought an lEE "under the authority of 20 U.S.C. S 1415(b)(1); 34 C.F.R. S 300.502(b)(1) and
Schaffer v. Weast, 546 U.S. 49 (2005)," based on their "disagreement with MCPS's failure to

evaluate" [F.C.] since 2009, in violation of "the federally mandated three-year time period."
Pis.' Due Process Compl. Letter at 1-2. During the administrative proceedings, MCPS filed a
motion for summary decision, arguing that the Parents were not entitled to a publicly funded lEE
because they did not disagree with an evaluation obtained by a public agency, as required by 34
C.F.R. S 300.502(b)(I).

On April 15, 2014, after an evidentiary hearing, the ALJ granted

MCPS's motion for summary decision. The ALJ concluded that the Parents were not entitled to
an lEE at public expense because they did not disagree with an evaluation obtained by a public
agency.

In so ruling, the ALJ found that the May 24, 2012 Reevaluation Planning and

Determination Meeting, at which the participants "reviewed and discussed existing data
pertaining to the Student," including "the 2009 assessments, report card data, and teacher

3

observations,"
300.502(b).

did not cOl).stitute an "evaluation"

within the meaning of the 34 C.F.R.

Ruling on MCPS's Mot. Summ. Decision ("ALl Decision") at 5, 10. The Parents

appealed the ALl's decision to this Court. See 20 U.S.C.

9 8-4130)

9

9

1415(i)(2)(A); Md. Code Ann., Educ.

(West 2015).
DISCUSSION

I.

Legal Standards
The Court grants summary judgment if the moving party demonstrates that there is no

genuine issue as to any material fact, and that the moving party is entitled to judgment as a
matter of law.

Fed. R. Civ. P. 56(a).

In doing so, the Court views the facts in a light most

favorable to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986),
who has the burden of showing that a genuine dispute exists, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

"(T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment;

the requirement

is that there be no genuine

issue of material fact."

Anderson, 477 U.S. at 247-48 (emphasis in original). A material fact is one that might affect the
outcome of a party's case. Id at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d
459,465 (4th Cir. 2001). A genuine issue of material fact arises when the evidence is sufficient
to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477
U.S. at 248.
In this instance, and in accordance with IDEA procedures, the Parents have appealed a
ruling of an ALl of the Maryland Office of Administrative Hearings. 20 U.S.C.
Md. Code Ann., Educ.

9

8-4130).

9

1415(i)(2)(A);

In reviewing such state administrative decisions, courts are

required to "make an independent decision based on a preponderance

4

of the evidence, while

giving due weight to the state administrative proceedings." 20 U.S.C.

9

1415(i)(2)(C); Doyle v.

Arlington Cty. Sch. Bd, 953 F.2d 100,103 (4th Cir. 1992). Findings of fact of hearing officers

are entitled to be considered "prima facie correct." Doyle, 953 F.2d at 105. However, where the
only dispute consists of "legal conclusions to be drawn from those facts, the state administrative
officials were in no better position than the district court to make conclusions," so the ALJ
decision is subject to de novo review. See Muller v. Comm. on Special Educ. of the E. Islip
Union Free Sch. Dist., 145 F.3d 95, 102 (2d Cir. 1998). Because the ALJ in this case made

findings of fact that were undisputed, the legal conclusions drawn from those facts, including
those regarding whether there was an evaluation obtained by a public agency with which the
Parents disagreed, are subject to de novo review. See id
II.

The 2012 Reevaluation Planning and Determination Meeting
The ALJ ruled that the Parents did not have a right to an lEE at public expense because

they did not meet the prerequisite that they had "disagree(d] with an evaluation obtained by the
public agency."

34 C.F.R.

9

300.502(b)(l).

"The right to a publicly funded independent

education evaluation does not obtain until there is a reevaluation with which the parents
disagree." G.J v. Muscogee Cty. Sch. Dist., 668 F.3d 1258, 1266 (11th Cir. 2012); see Schaffer
v. Weast, 546 U.S. 49, 60 (2005). "The parental right to an lEE is not an end in itself; rather it
serves the purpose of furnishing parents with the independent expertise and information they
need to confirm or disagree with an extant, school-district-conducted evaluation." TP. v. Bryan
Cty. Sch. Dist., 792 F.3d 1284, 1293 (lIth Cir. 2015); see also Schaffer, 546 U.S. at 61 (stating

that an lEE following parental disagreement with the school's evaluation is necessary to ensure
that parents have a "realistic opportunity to access the necessary evidence" and are not left
"without an expert with the firepower to match the opposition").

5

In concluding that there had been no public evaluation with which the Parents disagreed,
the ALJ found that the May 24, 2012 Reevaluation Planning and Determination Meeting did not
constitute an "evaluation obtained by the public agency" with which they could have disagreed.
34 C.F.R

9

300.502(b)(1). Although the Parents had originally taken the position, in their due

process complaint, that there had been no evaluation since 2009, they now claim in their Motion
for Summary Judgment that the ALJ Decision should be reversed because the meeting was in
fact an evaluation, while MCPS asserts in its Cross-Motion for Summary Judgment that the ALJ
Decision should be upheld because the meeting was not an evaluation. The Motions therefore
tum on whether the May 24, 2012 meeting constituted an evaluation.
Although the ALJ found that the existence of "varying definitions of the word
'evaluation' in federal and state regulations are not helpful in deciding if the review of data in
May 2012 was an evaluation for IEE purposes," ALJ Decision at 7, it is clear that 34 C.F.R.

9

300.15 defines "evaluation" for purposes of Part 300 of Title 34 of the Code of Federal
Regulations, including 34 C.F.R.

9

300.502(b). "Evaluation" as used in Part 300 is defined as

"procedures used in accordance with

99

300.304 through 300.311 to determine whether a child

has a disability and the nature and extent of the special education and related services that the
child needs." See 34 C.F.R. 9 300.15. Sections 300.304 and 300.305 set forth the required
procedures for conducting such an evaluation. Evaluators must (1) use "a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic information
about the child, including information provided by the parent"; (2) use multiple measures and
assessments; (3) use "technically sound instruments that may assess the relative contribution of
cognitive and behavioral factors, in addition to physical or developmental factors"; (4) "(r]eview
existing evaluation data on the child," including information from parents, classroom or state

6

assessments of the child, and teacher observations; and (5) identify whether and what additional
data needs to be obtained and reviewed. See 34 C.F.R.
1414(b).

99

300.304-05; see also 20 U.S.C.

9

Sections 300.306 through 300.311 set forth procedures for specific forms of

evaluations, such as determining eligibility under the IDEA or evaluating specific learning
disabilities.
Upon consideration of these procedural requirements, it is evident that the May 2012
meeting was not an evaluation under 34 C.F.R.

9

300.502(b).

The meeting consisted of

reviewing 2009 assessment data, report card data, and teacher observations.

This activity

undoubtedly met one of the requirements for an evaluation, that there be "Review [of] existing
evaluation data on the child," including evaluations, "[c]urrent classroom-based, local, or State
assessments, and classroom-based observations; and observations by teachers and related service
providers," 34 C.F.R.

9

300.305(a)(l), and it arguably met the requirement for identification of

"what additional data, if any, are needed" to determine whether the child continues to have a
disability and what special education and related services continue to be necessary, 34 C.F.R.

9

300.305(a)(2). But none of the other required steps for evaluation were conducted. At no time
during the meeting did evaluators use "a variety of assessment tools and strategies to gather
relevant functional, developmental, and academic information about the child" to assist in
determining whether he had a disability and the content of his IEP, nor did anyone use
"technically sound instruments that may assess the relative contribution of cognitive and
behavioral factors, in additional to physical or developmental factors." 34 C.F.R.

9 300.304(b).

For instance, there were not, as in 2009, "specialized assessments by professionals in the fields
of speech/language, psychology, and occupational therapy." ALJ Decision at 5. Thus, the May
2012 meeting did not constitute an "evaluation" for purposes of 34 C.F.R. 9 300.502(b).

7

The Parents' citation of the parallel Maryland regulations, and a 2007 Department of
Education letter responding to written questions forwarded by a Senator's office on behalf of an
unidentified source, does not alter this analysis. In their Due Process Complaint submitted to the

S

ALl, the Parents explicitly requested an lEE "under the authority of 20 U.S.C.
C.F.R.

S 300.502(b)(1)

Compi. Letter at 1-2.

and Schaffer," not the Code of Maryland Regulations.

1415(b)(1); 34

PIs.' Due Process

Thus, the Court's analysis in reviewing the ALl decision appropriately

focuses on the federal regulatory right to an lEE and the applicable federal definition of
"evaluation" within the meaning of 34 C.F.R.

S

300.502(b)(1).

See 20 U.S.C.

S

1415(i)(2)(A)

(stating that parties who appeal an ALl decision "shall have the right to bring a civil action with
respect to the complaint presented pursuant to this section"). Moreover, even upon consideration
of the Maryland definition of "evaluation," the result remains the same, because that definition
provides that an evaluation includes a review "in accordance with 34 C.F.R.

SS

300.304-

300.311," Md. Code Regs. 13A.05.01.03B(25)(b), thus indicating that an evaluation, particularly
as the term is used in 34 C.F.R.

S 300.502(b),

with respect to the federal definition.

must meet the same requirements discussed above

1

As for the Department of Education letter containing the language "the review of existing
data may constitute the reevaluation,"

it specifically provided that its responses constituted

"informal guidance" that was not "legally binding."
Summ. l. Ex. A, ECF No. 24-3.

Dep't of Educ. Letter at 4, PIs.' Mot.

Moreover, its responses, considered as a whole, generally

Considered as a whole, the Maryland regulations relating to evaluations and the need for an
lEE in substance track the federal regulations on this issue. The Parents' reliance on language
stating that "to conduct an evaluation" an IEP team conducts a review of existing data, classroom
assessments, and teacher observations, Md. Code Regs. 13A.05.01.06C, a process not unlike the
one followed at the May 2012 meeting, overlooks the fact that this language falls within the
subsection entitled "Review of Assessment Information," a step that is necessarily distinct from
the "Initial Evaluation" or "Reevaluation" described in other subsections so entitled. Md. Code
Regs. 13A.05.01.06A-E.
8

convey the undisputed understanding that a school district and parents may agree that a review of
existing data eliminates the need for a full reevaluation, but does not opine on whether a data
review constitutes an evaluation within the meaning of 34 C.F.R. 300.502(b) justifying an ~EE at
public expense.
The Court's interpretation is bolstered by consideration of other parts of the regulatory
regime relating to lEEs. If a parent is entitled to an lEE, "the criteria under which the evaluation
is obtained, including the location of the evaluation and the qualifications of the examiner, must
be the same as the criteria that the public agency uses when it initiates an evaluation."
~ 300.502(e)(l).

Here, the Parents seek an lEE including "neuropsychological,

34 C.F.R.
speech and

language, and occupational therapy evaluation, with the occupational therapy testing including
both fine and motor and sensory assessments."
~ 300.502(e)(I),

Pl.'s Due Process Compl. Letter at 1. But under

if the 2012 meeting were deemed to constitute a public evaluation, any lEE

would be limited to the criteria followed at the meeting, at which there were no qualified
examiners

present who actually conducted neuropsychological,

occupational

therapy

testing,

and the procedures

assessments,

report card data, and teacher observations.

speech and language,

and

were limited to a review of previous
Moreover, in the absence of any

underlying school-conducted psychological and related evaluations for the independent experts
in those fields to consider, the purpose of an lEE, to provide independent expertise with which to
confirm or disagree with an extant school-conducted evaluation, would not be served. See TP.,
792 F.3d at 1293.

This lack of alignment between the criteria for the 2012 meeting and the

proposed lEE further demonstrates that the 2012 meeting did not constitute an evaluation under
the relevant regulatory scheme.

9

Although case law on this point is limited, the most analogous federal case is consistent
with this interpretation.

In Krista P. v. Manhattan Sch. Dis/., 255 F. Supp. 2d 873 (N.D. Ill.

2003), where a child had been evaluated multiple times for special education services but not
granted such services, and the parents later requested a reevaluation, the school district convened
a team of educational professionals that reviewed the data from prior evaluations, the child's
grades and test scores, and teacher observations
warranted.

and concluded that no reevaluation

was

Id. at 876, 879. When the parents then sought an lEE at public expense, rather than

challenging the school's decision not to conduct its own reevaluation, the court concluded that
parents were not entitled to an lEE because "there was no evaluation" with which the parents had
disagreed, as required for an lEE, and the review team's work did not constitute an "evaluation"
for purposes of 34 C.F.R. ~ 300.502(b).

Id. at 881, 889. Likewise, the May 2012 meeting,

which consisted of comparable activities, did not constitute an "evaluation"

with which the

Parents disagreed, as necessary to trigger the right to an lEE at public expense?

Indeed, in their

Due Process Complaint, the Parents acknowledged that there had been no evaluation in May
2012 when they disagreed with MCPS's
mandated

three-year

time period,"

"failure to evaluate"

F.C. within the "federally

asserted that "MCPS last completed

a comprehensive

evaluation of [F.C.] in the Summer of 2009," and argued that "MCPS should have completed a
new evaluation of [F.C.] by the Summer of2012."
Finally, this interpretation
expense.

PIs.' Due Process Compi. Letter at 2.

does not prevent parents from obtaining an lEE at public

Notably, there is an established means by which to obtain a reevaluation or an lEE,

which the Parents did not follow in this case. If the Parents believed that a reevaluation was

2
The Parents' citation of MZ. v. Bethlehem Area School District, No. 11-2313, 2011 WL
2669248 (E.D. Pa. July 8, 2011), is unpersuasive. There, although the court held that an lEE was
required, the underlying "evaluation" with which the parent had disagreed was a psychological
evaluation, not simply a meeting to review data. Id. at * 1-2.

10

needed, either because there had been no reevaluation within three years, as required by 34
C.F.R. ~ 300.303(b)(2), or because they disagreed with the conclusion that no additional data
was needed to assess F.C.'s disability or educational needs, they could have requested a
reevaluation from MCPS and, if denied, file a due process complaint.

See 34 C.F.R. ~~

300.303(a)(2), 300.305(d)(2), 300.507(a); see also Md. Code Regs. 13A.05.01.06E(1)(b),
13A.05.01.15C(I). Indeed, when the Parents wrote to MCPS requesting an lEE on January 13,
2014, MCPS offered to provide a school reevaluation, including the psychological, education,
speech/language, and occupational therapy evaluations the Parents sought. Had the Parents
allowed such a reevaluation to proceed and disagreed with the results, they could then have
requested an lEE at public expense under 34 C.F.R. ~ 300.502(b)(1). But they refused the school
reevaluation and persisted in pursuing an lEE. In G.J, where the parents had refused to consent
to a reevaluation, the court held that "[b]ecause no revaluation had taken place due to the
parents' refusal to consent," the district court "correctly determined that the statutory provisions
for a publicly funded independent educational evaluation never kicked in because no
reevaluation ever occurred." G.J, 668 F.3d at 1266. Having refused to follow the established
procedure of first allowing the school to conduct its reevaluation, the Parents cannot now obtain
the requested relief. See id
III.

Other Grounds for Relief

Beyond arguing that there was a school evaluation on May 24, 2012, the Parents raise
three other arguments in support of their claim that summaryjudgment should be granted in their
favor: (1) MCPS waived its ability to contest the Parents' entitlement to an lEE; (2) the ALJ
erred in not considering any evidence submitted by the Parents; and (3) the Parents are entitled to
equitable relief because MCPS failed to conduct a reevaluation.

11

First, the Parents assert that once they requested an lEE at public expense, MCPS was
obligated either to file a due process complaint to defend its evaluation or fund the requested
lEE. Generally, when parents request an lEE, the school must either provide it or "[f]ile a due
process complaint to request a hearing to show that its evaluation is appropriate."

34 C.F.R. ~

300.502(b )(2)(i). However, the right to an lEE arises "if the parent disagrees with an evaluation
obtained by the public agency."

Id. ~ 300.502(b)(1).

As discussed above, there was no

evaluation with which the Parents could disagree, and thus no evaluation for MCPS to show to
be appropriate in a due process hearing. See G.J, 668 F.3d at 1266. MCPS was not obligated to
file a due process to defend a nonexistent evaluation. It has not waived any rights in this regard.
Second, the Parents assert that the ALJ inappropriately failed to consider any evidence
they submitted.

Specifically, the Parents assert that the ALJ should have considered the

Mother's affidavit stating that she disagreed with the decision at the 2012 meeting not to conduct
updated assessments.

In her Decision, the ALJ observed that she admitted several of the Parents'

exhibits "but did not consider them in this decision."

ALJ Decision at 3. Likewise, she heard

testimony from the Mother, a resource teacher, and an expert in special education "but did not
consider it in this decision."

Id. at 4. In rendering her Decision, the ALJ concluded, "The

Mother's agreement or disagreement with the outcome of the meeting, while disputed, is not a
material fact." Id. at 6 n.3 (emphasis in original).

The ALJ did not err in not considering the

Mother's disagreement with the May 2012 decision not to conduct updated assessments because
it was not relevant to the outcome. Any such disagreement would have led to a requirement that
MCPS conduct a reevaluation, 34 C.F.R. ~ 300.303(a), which MCPS in fact offered to initiate,
but the Parents would have to receive that MCPS evaluation and disagree with it in order to have
a right to an lEE, 34 C.F.R. ~ 300.502(b)(1).

Here, the ALJ correctly found that the May 2012

12

meeting did not constitute an MCPS evaluation that would trigger this right.
Mother's

disagreement

Therefore, the

with the results of the 2012 meeting would have no impact on the

disposition of this case, and there was no need to consider it.
Third, the Parents assert that this Court should order MCPS to fund an lEE as a form of
equitable relief for MCPS's failure to conduct a reevaluation.

To support this proposition, the

Parents cite a provision within the paragraph of the IDEA providing for judicial review which
states, "In an action brought under this paragraph,

the court basing its decision on the

preponderance of the evidence, shall grant such relief as the court determines is appropriate."
U.S.C. ~ 1415(i)(2)(C)(iii).

20

At least one court has invoked this provision to require a school

district to pay the cost of an lEE when there was no statutory right to an lEE because the school
district had not conducted an evaluation with which the parent could disagree. L.A. Unifie4 Sch.
Dis!. v. D.L., 548 F. Supp. 2d 815, 823 (C.D. Cal. 2008).

In D.L., the court considered "the

conduct of both parties" and ordered the school district to pay for a previously conducted lEE
because it had been obligated to conduct its own evaluation based on the child's observable
behavioral issues, coupled with the parent's repeated requests for an evaluation the school
district, but failed to agree to do so until after the due process complaint was filed. Id at 822.
Here, it is not clear whether MCPS was required to conduct a reevaluation, because there
is a factual dispute whether the parents disagreed with the May 2012 determination that no such
reevaluation was necessary at the time.

See 34 C.F.R. ~ 300.303.

That dispute need not be

resolved because unlike in D.L., once MCPS received the only written request for an evaluation,
and prior to the filing of the due process complaint, MCPS offered to conduct a reevaluation of
F.C. at school expense that would have constituted the public agency evaluation within the
meaning of 34 C.F.R. ~ 300.502(b).

Rather than accept the offer, review the results of such a

13

reevaluation, and then if necessary seek an lEE to challenge the results, as conte~plated by the
regulatory regime, the Parents rejected that offer and proceeded to file a due process complaint.
In the due process complaint, the Parents initially acknowledged that no agency evaluation had
occurred, only to change its position and now argue that the May 12 meeting constituted an
evaluation. Thus, upon consideration of the "conduct of both parties," D.L., 548 F. Supp.'2d at
822, where the Parents have not followed the appropriate procedures and declined an offer to
conduct a school reevaluation, the Court declines to grant equitable relief requiring MCPS to pay
for the lEE.
CONCLUSION

For the foregoing reasons, the ALJ Decision is affirmed. The Parents' Motion for
Summary Judgment is DENlED, and MCPS's Cross-Motion for Summary Judgment is
GRANTED. A separate Order shall issue.

~o.~

Date: June 27, 2016

THEODORE D. ~
United States District Judge

14