T.B., Jr. v. Prince George's County Board of Education et al

Filing 34

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/13/2016. (kns, Deputy Clerk)

f!

•...• "

T

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
South em Division
,

T.B., Jr. ex reI. T.B., Sr. and F.B.

,..

'.

1""1

('.

*

Plaintiffs,

*

v.

Case No.: GJH-~03935

*
PRINCE GEORGE'S COUNTY
BOARD OF EDUCATION, et af.

*
Defendants.

*

*

*

*

*

*

*

*

*

MEMORANDUM

*

*

*

*

*

OPINION

PlaintifTs appeal the decision in T.B.. Jr. v. Prince George's County Public Schools, OAH
No.: MSDE-PGEO-OT-15-01496

(2015)1 by David Hofstetter, an Administrative Law Judge of

the Maryland Office of Administrative Hearings ("the All") under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C.

S 1400 et seq.2 Presently

pending before the

Court is Plaintiffs' Motion for Summary Judgment on the Administrative Record, ECF No. 27,
and Defendants' Cross Motion for Summary Judgment, ECF No. 28. A hearing on the motions
was held on October 17, 2016. Local Rule 105.6 (D. Md. 2016). For the following reasons,
PlaintitTs' Motion for Summary Judgment is now denied, in part, and granted, in part, and
Defendants' Cross Motion for Summary Judgment is granted, in part, and denied, in part. The

I The

Administrative Law Judge's Decision is cited herein as "AU."
Congress first enacted the Individuals with Disabilities Education Act ("IDEA") in 1970, then called the Education
of the Handicapped Act. "to ensure that all children with disabilities are provided a free appropriate public education
\\'hich emphasizes special education and related services designed to meet their unique needs and to assure that the
rights of such children and their parents or guardians arc protected." Forest Grove Sch. Disi. v. T.A., 557 U.S. 230
(2009) (internal citations omitted).
2

AU's Decision is thus affirmed, in part, and reversed, in part. Defendants shall reimburse
Plaintiffs for the cost of the Independent Education Evaluation.

I.

BACKGROUND
A. Factual History)
T.B.4 was born on July 25, 1998. T.B. began attending Prince George's County Public

Schools ("PGCPS") in elementary school. AU at 8. Although T.B. consistently performed below
grade level in Reading and Math throughout his elementary school career,

5

T.B. was never

diagnosed with a disability or placed in special education during this time. In 5th Grade, T.B.
received "mostly As and Bs, except for Cs in Reading and Writing." AU at 9. In 6th Grade, T.B.
received three As, two Bs, and one C. Id. When T.B. reached seventh grade at Gourdine Middle
School, however, his grades began to decline. AU at 9; ECF No. I at 8-9. T.B. received
numerous Ds and failing grades throughout seventh and eighth grades. AU at 9; ECF No. I at 89. His teachers commented that T.B. "[did] not follow instructions" and had
"[m]issing/incomplete

assignments" and "[p]oor test/quiz grades." ECF No. I at 9.

In the Fall of2012, T.B. entered high school at Friendly High School. AU at 9.
According to Plaintiffs' Complaint, T.B.'s academic decline "continued and intensified." ECF
No. I at 10. On October 12,2012, T.B.'s father, Mr. Barton, emailed the school Guidance
Counselor, Desirae Dent, under the subject heading, "Having my son get tested." Id. On
November 7, 2012, the school held an IEP meeting6 concerning T.B. AU at 9; ECF No. I at 10.

, All facts herein are taken from the All's Findings of Facts, Terrence Barton. Jr. v. Prince George's County Public
Schools, OAH No.: MSDE-PGEO-OT-15-01496
(2015), or Plaintiffs' Complaint, ECF No. I, where noted.
, Although T.B. has reached the age of majority since the filing of the Complaint, the Court will continue to refer to
him by his initials to mirror the pleadings.
, Annual standardized testing from I st through 6th Grade indicated that T.B. was performing below grade level
("Basic" rather than "Proficient") in both Reading and Math. ECF No. I at 8.
6 An individualized education program or "IEP" is a written statement for a child with a disability that sets forth.
among other things. the child's present levels of academic achievement and functional performance, measurable
annual goals, a description of how the child's progress toward meeting the annual goals will be measured, the

2

'r.B.'s mother, Mrs. Barton, and several PGCPS staff were present; however, none ofT.B.'s
classroom teachers attended the meeting. AU at 10. While the IEP team did not conduct formal
testing ofT.B., the team concluded on "all available information" that his difticulties were not
the result of a learning disability or any condition requiring special education services, and did
not order further assessments. AU at 10. At the meeting, the IEP team gave T.B. 's mother the
Maryland State Department of Education document "Parental Rights - Maryland Procedural
Safeguards," which provides infonnation on how to file a due process complaint and the
applicable statute oflimitations.ld.

at 9.7 The team agreed to schedule a parent-teacher

conference for January 2013.1d. at 10.
As T.B. progressed through ninth grade, he continued to struggle in school and miss
class. AU at 9-10. Mr. Barton again emailed Ms. Dent on the 4th and 10th of January 2013,
asking about possible programs and smaller classes for T.B. AU at 9. Friendly High School held
parent-teacher conferences on January 16,2013. AU at 10. Mr. and Mrs. Barton attended and
discussed T.B.'s lack of motivation and failure to come to class with some of his teachers, the
principal, and other PGCPS staff. Id. At the meeting, T.B. stated that "he simply wasn't trying."

Id. Throughout the rest ofT.B.'s ninth grade year and his tenth grade year, T.B.'s absences
became increasingly frequent, and he failed many of his classes. AU at 12. His parents did not
inform PGCPS why T.B. was not attending school, nor did they mention anxiety or depression.

Id. Mr. Barton emailed teachers and administrators at Friendly on the 6th and 8th of March 2014,
services and supplementary aids to be provided to the child, and anticipated frequency and duration of services. 20
U.S.c. ~ 1414(d)(1 )(A); 34 C.F.R. ~ 300.22. The IEP is developed by an "IEP Team," a group consisting of the
child's parents or guardians. at least one regular education teacher of the child, at least one special education teacher
of the child, a representative of the local educational agency (LEA). and an individual who can interpret evaluation
results, often a school psychologist. See 20 U.s.c. 1414(d)(I)(B). Once the IEP is developed, the program or plan is
reviewed "periodically. but not less frequently than annually." ~ 1414(d)(4)(A).
7 What actually occurred at the Nov. 7, 2012 meeting was a factual issue litigated at-length at the administrative law
hearing. The All found, after hearing testimony and reviewing exhibits on the matter, that the IEP team "reviewed
all available information and discussed whether certain specific testing was appropriate." All at 10. The All also
found that Ms. Barton was provided with the procedural safeguards document at that meeting. Id. at 9.

3

asking for T.B. to be "tested for learning disabilities." All at 13. Despite these requests, PGCPS
did not test T.B.ld. At the end of school year 2013-2014, T.B. failed the tenth grade. ECF No. I
at 17.
In the Summer of 20 14, the Bartons took their son to the Basics Group Practice, LLC
("Basics Group" or "Basics") to be tested for special education. All at 13. The Basics Group
evaluated T.B. on May 6, 8, and 13, 2014.1d. On August 29, 2014, Basics concluded that T.B.
had attention-deficit hyperactivity disorder (ADHD), a specific learning disability (SLD) with
impairment in written expression,8 and an unspecified depressive disorder. All at 13; ECF No. I
at 20. Over the Summer of2014, the Bartons changed residences, and T.B. re-started his tenth
grade year at Central High School in the Fall. ECF No. 1 at 20. T.B. only attended Central for a
few days in September 2014, with his last day of attendance being on or about September 22,
2014. All at 13. Mr. Barton sent emails to PGCPS, "making conflicting claims" as to why T.B.
was not attending school. ld. "The emails variously claimed that the Student was not attending
due to noise in the school, asthma, or to panic attacks." ld.
On January 13,2015, the Bartons filed a due process complaint against Prince George's
County Public Schools. ECF No. I at 22; Due Process Compl. An fEP team meeting was
convened on January 26, 2015, at which point PGCPS agreed to conduct further academic and
social/emotional evaluations with T.B. All at 14. School Psychologist Vincent Tepe performed

, The IDEA covers certain categories of disabilities that adversely impact education. See 34 C.F.R. ~ 300.1 el seq.
Among these disabilities are attention deficit hyperactivity disorder (ADHD) and specific learning disability (SLD).
ADHD falls under "other health impairment" or "OHI." 34 C.F.R. ~ 300.8(c)(9). Other health impairment means
"having limited strength, vitality. or alertness, including a heightened alertness to environmental stimuli. that results
in limited alertness with respect to the educational environment, that - (i) Is due to chronic or acute health
problems such as ... attention deficit disorder or attention deficit hyperactivity disorder ... and (ii) Adversely
alTects a child's educational performance." Id Specific learning disability means"a disorder in one or more of the
basic psychological processes involved in understanding or in using language, spoken or written, that may manifest
itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including
conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia." 34 C.F.R. ~ 300.8(c)(IO).

4

the evaluations. Id. Mr. Tepe found that T.B. was eligible for special education under the
category of Emotional Disability.9 Id. Mr. Tepe also found that T.B. was six years below grade
level in mathematics, five years below grade level in reading, and four years below grade level in
writing. ECF No. I at 23. On March 12,2015 and again on April 4, 2015, the IEP team met and
determined that compensatory services for one calendar year in the form of five fee-waived
credit recovery courses would be oftered to T.B., and that the Transition Program at Wise High
School ("Transition Program") would be an appropriate placement. AU at 15.
B. Procedural History
Following the filing of the Bartons' due process complaint, an administrative hearing was
held at the Maryland Office of Administrative Hearings over six separate days in the Summer of
2015 (June 12, 15, 16, and 17; July 27; and August 17) before Administrative Law Judge David
Hofstetter. AU at 2. The issues for decision were:
(1) What is the appropriate statute of limitations to this matter?
(2) Whether the Student was denied a free and appropriate public
education (FAPE)IO during the parts of the 2013-2014 and
2014.2015 school years, which fall within the applicable
statute of limitations and; if so, what, if any compensatory
education should be provided to the Student to remedy that
denial.

Emotional disability or "emotional disturbance" means '"a condition exhibiting one or more of the following
characteristics over a long period of time and to a marked degree that adversely affects a child's educational
performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (3) An
inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types
of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems." 34 C.F.R.
300.8 (c)(4)(i).
10 Free and appropriate public education or "FAPE" means "special education and related services that -- (A) have
been provided at public expense, under public supervision and direction. and without charge: (3) meet the standards
of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in conformity with the individualized education program
required under section 1414(d) of[20 U.s.c.
1400 et seq.]." 20 U.S.c.
1401(9). In matters asserting procedural
violations, a child is "deprived ofa free appropriate public education" only if "the school system has violated the
IDEA's procedural requirements to such an extent that the violations are serious and detrimentally impact upon the
child's right to a tree public education" or if the IEP is "not reasonably calculated to enable the child to receive
educational benefits." Gerstmyer v. Howard Cty. Pub. Schs., 850 F. Supp. 361, 364-{j5 (D. Md. 1994).

9

*

*

*

5

(3) Whether the Parents are entitled to reimbursement for an
Independent Educational Evaluation (lEE) of the Student
conducted in May 20 I4.
AU at 3. The AU admitted a total of97 exhibits from both parties -

including student

attendance information, progress reports, performance data, and correspondence dating back to
2003. AU at 3-7. He heard testimony from 21 witnesses, including 12 ofT.B.'s teachers from
middle school and high school, T.B.'s parents, and PGCPS guidance counselors and school
psychologists. ld. at 7-8. The AU made 67 factual findings by a preponderance of evidence. Id.
at 8-16. The AU rendered his 46-page decision on September 16,2015.
With respect to the first issue, the AU found that a two-year statute oflimitations
applied, dating back two years from January 13,2015, the date the Parents filed their due process
complaint. He therefore limited Parents' "claims of violations" to the period between January 13,
2013 and January 13,2015. The AU found that no misrepresentation or withholding of
information occurred that would "toll or extend the statute of limitations." AU at 22-23.11
As to the second issue, the AU found that "it is clear that the Parent made, within the
statute of limitations period, repeated requests for evaluation of the Student." AU at 24. He
further found that "PGCPS erred in failing to respond to the Parents' requests and conduct a
timely evaluation." Id. at 25. However, he concluded, based on the "entirety of the record," that
"these procedural violations did not 'actually interfere' with the provision of a free and
appropriate public education." Id. (citing DiBIIO ex reI. DiBlIo v. Bd. ofEdllc. ofWorcesler

Cty.,

309 F.3d 184, 190 (4th Cir. 2002)) (quotations marks added). The AU explained, "[mJy
reasoning is simple: the entirety of the record before me establishes that the Student simply does

II 20 U.s.c.
~ 1415(1)(3)(D) adds two exceptions that would toll the two-year statute of limitations set fonh under
20 U.S.C. ~ 1415(1)(3)(C). These are that "the parent was prevented from requesting the hearing due to (i) specific

misrepresentations by the local educational agency that it had resolved the problem forming the basis of the
complaint. or (ii) the local educational agency's withholding of information from the parent that was required ... to
be provided to the parent." Id

6

not want to go to school." Id Effectively, the ALl concluded that even ifT.S. had received
special education services and supports, he would not have gone to school, or the supports would
not have had a significant impact.
In reaching this conclusion, the ALl did not credit Plaintiffs' experts and noted that
T.B.'s diagnosis conllicted not only between the PGCPS expert and Plaintiffs' experts, but
between Plaintiffs' own experts. Indeed, PGCPS School Psychologist Vincent Tepe found that
T.B.'s diagnosis was "Emotional Disability," ALl at 13; the Basics Group concluded that T.B.'s
diagnosis was "Attention Deficit Hyperactivity Disorder, combined presentation, moderate;
Specific Learning Disorder with impairment in written expression; and unspecified depressive
disorder," ALl at 14; and Dr. Stephan Silverman, who testified for Plaintiffs, concluded that
T.B.'s diagnosis was "situational anxiety and depression," ALl at 38. The ALl noted the
conflicting diagnoses of Plaintiffs' experts, stating that it "lead[s] me to question the credibility
of both." Id. at 40. Additionally, the ALl afforded little weight to Dr. Silverman's testimony, as
Dr. Silverman "met with the Student only once and only brielly," "did not perform any testing on
the Student," "did not engage in any therapy with the Student," and "did not have the Student
perform any academic activity for him." Id. at 39. The ALl found the same deficiencies to be
true with Plaintiffs' other expert, Dr. McLaughlin. ALl at 40-41.
Additionally, the ALl found that the reasons that Parents gave PGCPS to explain T.B.'s
absences varied and were often "unexplained." Id. at 35. ("Student's absences from 8th grade
onward were due to asthma, nose bleeds, and an injury when he fell on some icy steps ...
however ... the vast majority of his many, many absences were unexcused and unexplained.").

Id. The ALl did not credit T.B.'s father, as "the Father's testimony on almost every factual
matter was unreliable and subject to frequent revision." ALl at 35. For example, Mr. Barton

7

testified at the hearing that T.B. stopped attending Central because of bullying. ld. But later Mr.
Barton said bullying was not an issue at Central. ld. Thus, the AU found that Plaintiffs' claims
did not establish a "denial ofFAPE.'"Id. at 36.
Regarding the third issue, the AU found that the Parents were not entitled to
reimbursement for the Independent Educational Evaluation (lEE). ld. The AU reviewed the
report from the Basics Group and found that the document did not establish that the evaluation of
T.B. was conducted by "trained and knowledgeable personnel." ld. at 28. He noted that the
examiner, Whitney Hobson, was a doctoral psychology intern and not a licensed psychologist.
ld. He further noted that the curriculum vitae of the Basics personnel, Hobson and Dr. Ricardo
Lagrange, were not entered into evidence, and that the Basics personnel did not testify at the
hearing.ld. at 28-29. Therefore, the AU concluded that the agency "'demonstrated'

a failure to

show that the lEE meets 'agency criteria,''" and thus the Parents were not entitled to
reimbursement. ld. at 29.
In sum, the AU concluded "as a matter of law Parents have not established by a
preponderance of evidence that the Student was denied a free and appropriate public education
during the portion of the 2012-2013, 2013-2014, and 2014-2015 school years which fall within
the statute of limitations.'" AU at 46. The AU therefore found that "the Student is not entitled to
compensatory education at public expense." ld. Finally, the AU denied reimbursement for the
lEE. ld. The Bartons timely tiled the instant Complaint in this Court on December 23, 20 IS and

S

appeal the AU's Decision pursuant to 20 U.S.c.
II.

1415(i)(2). ECF No. I.

STANDARD OF REVIEW
Under the IDEA, any party aggrieved by a decision reached at a due process hearing of

the state educational agency may bring a civil action in a district court of the United States. 20

8

u.S.c. S 1415(i)(2).

A district court reviewing a decision of the educational agency "(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 appropriate,"

S

1415(i)(2)(C).

A court reviewing an administrative decision under the IDEA conducts a "modified de
novo review, giving 'due weight' to the underlying administrative proceedings." MM ex rei. DM
v. Sch. Dis/. a/Greenville
a/Montgomery

Cnty .. 303 F.3d 523, 530-31 (4th Cir. 2002); Wagner v. Bd.

0/ Educ.

Ciy., 340 F. Supp. 2d 603; 611 (D. Md. 2004). In evaluating the administrative

findings, findings of fact which are "made in a regular manner and have evidentiary support" are
considered "'prima facie" correct and a reviewing court that does not adhere to the factual
findings must explain its deviation. Doyle v. Arling/on C/y. Sch. Bd., 953 F.2d 100, 105 (4th Cir.
1991). In determining whether such factual findings were "'regularly made," a reviewing court
"should examine the way in which the state administrative authorities have arrived at their
administrative decisions and the methods employed." Id. Courts should be particularly hesitant to
disturb the "AU's

determinations of the credibility of witnesses" as "the fact-finder, who has the

advantage of hearing the witnesses, is in the best position to assess credibility." Wagner, 340 F.
Supp. 2d at 611 (quoting Jus/in G. v. Bd. o/Educ., 148 F. Supp. 2d 576, 588 (D. Md. 2001»; see
also Jana K. ex rei. Tim K. v. Annville-Cleona Sch. Dis/., 39 F. Supp. 3d 584, 600 (M.D. Pa.
2014) ("[a)bsent non-testimonial, extrinsic evidence to the contrary, the court must accept the
Hearing Officer's credibility determinations.") (citing Carlisle Area Sch. v. Scali P. ex reI. Bess
P., 62 F.3d 520, 529 (3d. Cir. 1995».
Once the reviewing court has given the administrative fact-findings due weight, it is then
"free to decide the case on the preponderance of the evidence:' Doyle, 953 F.2d at 105. A district

9

court may, for example, "believe[] that the evidence considered as a whole point[s] to a different
legal conclusion," despite accepting the factual findings of the officer below. See Sumter Oy.
Sch. Dist. 17 v. Heffernan ex rei. TH., 642 FJd 478, 485 (4th Cif. 2011). In making its
determination, however, districts courts should not "substitute their own notions of sound
educational policy for those of the school authorities which they review." Hartmann ex reI.
Hartmann v. Loudoun Oy. Ed. o/Educ., 118 F.3d 996,1000 (4th Cif. 1997) (quoting Bd.

0/

Educ. (if Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,206 (1982)). Pure questions
of law are reviewed de novo. See £.1. ex rei. Larsson v. Chapel Hill-Carrboro Bd.

0/ Educ.,

773

F.3d 509, 514 (4th Cif. 2014) (discussing exhaustion of administrative remedies as "pure
question oflaw"); Damarcus S. v. District a/Columbia,

Civil Action No. 15-851 (ESH),2016

WL 2993158, at *3 (D.D.C. May 23, 2016) (discussing the proper statutory construction of
IDEA as a "pure question of law"); Jana K., 39 F. Supp. 3d at 595 (M.D. Pa. 2014) ("[t]he
district court's review of the hearing officer's application oflegal standards and conclusions of
law ... is subject to plenary review.").
Finally, "just as Plaintiffs were required to carry the burden of proof in the administrative
hearing" Weast v. Schaffer ex rei. Schaffer, 377 F.3d 449, 456 (4th Cif. 2004), afrd, 546 U.S. 49
(2005), Plaintiffs must also carry that burden in this court, as they are the party seeking relief.
Schaffer ex reI. Schaffer v. Weast, 546 U.S. 49, 62 (2005); see also Wagner, 340 F. Supp. 2d at
611 (describing Plaintiffs in IDEA cases as facing an "uphill battle").
III.

ANALYSIS
The AU heard six days of testimony from 21 witnesses, reviewed 35 exhibits, and

drafted a 46-page opinion detailing his factual findings and conclusions of law. From this
Court's review of the record, it is clear that the AU's factual findings were "made in a regular

10

manner." Doyle, 953 F.2d at 105; see also Sch. Ed. of the City o/SujJiJlk v. Rose, 133 F. Supp. 3d
803,821 (E.D. Va. 2015) (finding that hearing officer's findings of fact were entitled to due
weight where hearing officer "heard evidence from witnesses on direct, cross, and re-direct
examination; admitted documentary evidence; ruled on objections; ... and rendered a written
tinal decision."). As will be discussed in more detail below, the All's

factual findings are also

supported by the evidence and are therefore presumed to be prima facie correct. The Court will
now address the three issues raised below, in turn.
A. Statute of Limitations
In 2003, the Fourth Circuit held that "[a]n IDEA claim accrues when the parents of the
disabled child knew or should have known of the injury or the event that is the basis for their
claims. The injury in an IDEA case -the

injury that allows a parent to bring suit-is

an

allegedly faulty IE? or a disagreement over the educational choices that a school system has
made for a student." R.R. ex reI. R.R. v. Fairfax Cty. Sch. Ed.. 338 F.3d 325, 332 (4th Cir. 2003)
(internal citations omitted). But until 2004, the IDEA did not have a specified statute of
limitations. See G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 608 (3d Cir. 2015). Since
that time, amendments to the IDEA have added two provisions, 20 U.S.c.
14 I5(b)(6)(B), both seeming to address the applicable statute oflimitations

SS

1415(t)(3)(C) and

but with differing

language, which has caused confusion. Id. at 609.
Section 1415(t)(3)(C) sets forth what appears to be the statute oflimitations

principle

known as the discovery rule: "A parent or agency shall request an impartial due process hearing
within 2 years of the date the parent or agency knew or should have known about the alleged
action that forms the basis of the complaint ... " 20 U.S.c.

II

S

1415(t)(3)(C) (emphasis added).

Thus, under this provision, IDEA plaintiffs clearly have two years from the date they knew or
should have known of the defendants' violation to file their due process complaint.12
The language of Section 1415(b)(6)(B) is less clear. That subsection provides for "[aln
opportunity for any party to present a complaint-- with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education to such child; and which selsforth an alleged vio/alion Ihal
occurred not more Ihan 2 years before Ihe dale Ihe parenl or public agency knew or should have
known about the alleged action Ihal forms Ihe basis of Ihe comp/ainl, or, if the State has an
explicit time limitation for presenting such a complaint under this subchapter, in such time as the
State law allows ... "

9

14 I5(b)(6)(B) (emphasis added). Thus, the plain language of Section

1415(b)(6)(B) would suggest looking backward in time from the knew-or-should-have-known
("KOSHK") date. This has led to questions and confusion about whether (b)(6)(B) is an
awkward re-statement of (t)(3)(C), a remedy cap of two years prior to the KOSHK date, or a
hybrid "2+2" approach creating a four-year statute of limitations (two years prior and two years
post KOSHK). G.L., 802 F.3d at610 (discussing inconsistent conclusions reached by district
courts).
The Third Circuit in G.L. thoroughly analyzed the text and legislative history of the two
subsections at issue. G.L. v. Ligonier ValleySch. Disl. Auth., 802 F.3d 601, 611-26 (3d Cir.
2015). The Court will not repeat that analysis in its entirety here, but finds it persuasive and
adopts the reasoning. At the end of its discussion, the Third Circuit explained that:

12 Section 1415(1)(3(D) also provides two exceptions that toll this two-year statute of limitations: "The timeline
described in subparagraph (C) shall not apply to a parent if the parent was prevented rrom requesting the hearing due
to-- (i) specific misrepresentations by the local educational agency that it had resolved the problem fonning the basis
of the complaint: or (ii) the local educational agency's withholding of information rrom the parent that was required
under this subchapter to be provided to the parent." ~ 1415(1)(3)(D).

12

[A]bsent one of the two statutory exceptions found in 9
1415(f)(3)(D), parents have two years from the date they knew or
should have known of the violation to request a due process
hearing through the filing of an administrative complaint and that,
assuming parents timely file that complaint and liability is proven,
Congress did not abrogate our longstanding precedent that "a
disabled child is entitled to compensatory education for a period
equal to the period of deprivation, but excluding the time
reasonably required for the school district to rectify the problem."
C.L., 802 F.3d at 626 (quoting M.e. ex rei. J.e. v. Cent. Reg 'I Sch. Dist., 81 F.3d 389, 397 (3d.
Cir. 1996». In so holding, the C.L. court made clear that "the limitations period [in

9

1415]

functions in a traditional way, that is, as a filing deadline that runs from the date of reasonable
discovery and not as a cap on a child's remedy for timely-filed claims that happen to date back
more than two years before the complaint is filed." ld. at 616. Thus, the first step in a statute of
limitations analysis for an IDEA claim is to establish what the "KOSHK" date is for the violation
at issue, and look forward two years to determine whether the complaint was timely filed.
At first blush, the AU in the present case seems to have taken a different approach,
instead starting with the date the complaint was filed and looking backward in time. Whether this
is an appropriate approach depends on whether the Court views Defendants' actions as a single
violation or a series of individual violations. If viewed as a single violation, the entire claim was
time barred when the Complaint was not filed by November 7, 2014, two years after the first
KOSHK date. 13 However, properly viewing this case as a series of violations,

14

the AU's

13 The AU found that "as of November 7, 2012 (the date of the IEP team meeting), as well as by January 13,2013
(the last date before prior claims would be barred by the statute oflimitations), the evidence is overwhelming that
the Parents knew or should have known all the facts supporting any alleged violation of the Student's rights under
the IDEA prior to that date." AU at 24.
14 In the Court's view, the "alleged action that forms the basis of the complaint" is best viewed as an aggregate of
separate, related violations. Namely, "PGCPS has repeatedly failed to identitY and evaluate Terrence, including
ignoring specific requests by Terrence's family that PGCPS evaluate him." Due Process Compl. at 4. In the Due
Process Complaint, Plaintiffs layout multiple dates beginning in October 20 12 and lasting through September 20 14,
where the Parents sent emails and contacted the school, requesting for T.B. to be evaluated and receive additional
support in his classes. Id. Accordingly, the alleged action is not a single, overarching violation, but rather a series of
violations.

13

approach of starting with the date the complaint was filed, looking backward two years, and
including any violations within that two year period, is nothing more than a functional, efficient
device to determine which claims are time-barred. All claims within those two years would have
been deemed timely-filed had they been analyzed individually looking forward. Claims
occurring outside of that two-year window would not be. Additionally, the AU considered
extensively the potential applicability of the two statutory tolling exceptions under Section
1415(1)(3 )(0), and properly found that neither exception applied, which would have allowed the
Plaintiffs to include additional alleged violations. AU at 20-22 ("I therefore conclude that no
misrepresentation or withholding of information occurred ... and therefore there is no basis to
extend the statute oflimitations

on that basis."). Thus, the determination and application of the

statute of limitations was accurate.
However, while the AU properly found that only violations occurring after January 13,
2013 could be used to state a claim, the AU improperly found that only relief for injury suffered
during that period would be recoverable. Pursuant to G.L., decided after the AU's ruling but
adopted herein, "a disabled child is entitled to compensatory education for a period equal to the
period of deprivation." 802 F.3d at 626 (assuming liability is proven, "a disabled child is entitled
to compensatory education for a period equal to the period of deprivation, but excluding the time
reasonably required for the school district to rectify the problem."); see also Draper v. All. lndep.
Sch. Sys., 518 F.3d 1275, 1286-90 (lith Cir. 2008) (rejecting a school district's argument that a
child's long-undiscovered injury was time-barred and upholding an award of approximately live
years of compensatory education).Thus, had a claim for denial ofFAPE during the limitations
period been established, damages for harm occurring before January 13,2013, two years prior to
the filing of the due process complaint, would have been available. This error is made harmless,

14

however, by the All's

determination, which this Court affirms, that there was no actual

interference with the provision of FAPE.
Plaintiff additionally complains that the All erred in using the limitations date as an
evidentiary exclusion rule. ECF No. 27-1 at 31. That argument mischaracterizes the All's
ruling. The All explicitly stated, "I have determined that the Parents' claims concerning events
occurring before January 13,2013 are barred by the statute oflimitations.

For historical and

background purposes, however, 1have nevertheless included in these findings of fact some
information concerning events occurring before that date." All at 9 n.7. Specifically, the All
included an email sent October 10,2012 by T.B.'s father and the November 7, 2012 IEP
meeting. Thus, the All did not exclude that information cited to by Plaintiffs, but rather included
information from that time period which he felt was relevant for historical and background
purposes. Accordingly, the Court does not disturb the All's

decision as to the statute of

limitations issue.
B. Child Find
IDEA "imposes an affirmative obligation on any state receiving federal assistance to
identify and evaluate all children suffering from disabilities who may be in need of special
education and related services." Sch. Bd. of the City of Norfolk v. Brown, 769 F. Supp. 2d 928,
941 (E.D. Va. 2010); see 34 C.F.R.

9 300.1 I I(a).

This duty is known as "child find." Id. The

child find obligation extends to "children who are suspected of being a child with a disability
under

9 300.8

and in need of special education, even though they are advancing from grade to

grade." 34 C.F.R.

9 300.III(c).

Failure to comply with "child find" may constitute a "procedural

violation" of the IDEA. Brown, 769 F. Supp. 2d at 942 (citing Forest Grove Sch. Dist. v. TA.,
557 U.S. 230 (2009)).

15

Although child find does not "impose a specific deadline by which time children
suspected of having a qualifying disability must be identified and evaluated, evaluation should
take place within a 'reasonable time' after school officials are put on notice that behavior is
likely to indicate a disability." Brown, 769 F. Supp. 2d at 942 (citing W.B. v. Matula. 67 F.3d
484,501 (3d Cir. 1995)). Hence, the child find obligation is "triggered where the state has reason
to suspect that the child may have a disability and that special education services may be
necessary to address that disability." Id. A local educational agency is "deemed to have
knowledge that the child may suffer from a disability" where:
1.

the parent of the child has expressed concern in wrItmg to
supervisory or administrative personnel of the appropriate
educational agency, or a teacher of the child, that the child is in
need of special education and related services;

II.

the parent of the child has requested an evaluation of the child
pursuant to section l414(a)(l)(B); or

111.

the teacher of the child, or other personnel of the local
educational agency, has expressed specific concerns about a
pattern of behavior demonstrated by the child, directly to the
director of special education of such agency or to other
supervisory
personnel
of the agency. 20 V.S.c.
~
1415(k)(5)(B).

20 V.S.c. ~ 1415(k)(5)(B).
Here, the AU found that Mr. Barton made repeated requests for evaluation in the twoyear period prior to the filing of the due process claim, and thus, "PGCPS erred in failing to
respond to Parents' requests and conduct a timely evaluation." AU at 25. But even if the
school's error in failing to identify or evaluate constituted a procedural violation, "procedural
violations of IDEA are subject to harmlessness analysis." Snyder ex reo Snyder v. Montgomery
Cty. Pub. Schs., Civil Action No. DKC 2008-1757, 2009 WL 3246579 at *6 (D. Md. Sept. 29,
2009). Thus, "a violation ofa procedural requirement of the IDEA (or one of its implementing
16

regulations) must actually interfere with the provision of a FAPE before the child and/or his
parents would be entitled to reimbursement relief." Id. (emphasis added). A child is "deprived of
a free appropriate public education" only if"the school system has violated the IDEA's
procedural requirements to such an extent that the violations are serious and detrimentally impact
upon the child's right to a free public education," or if the IEP is "not reasonably calculated to
enable the child to receive educational benefits." Gerstmyer v. Howard Cry. Pub. Schs., 850 F.
Supp. 361,364-65

(D. Md. 1994); see also Sch. Bd. a/the City a/Suffolk v. Rose, 133 F. Supp.

3d 803, 819 (E.D. Va. 2015) (equating denial ofFAPE with "loss of an educational opportunity
for the disabled child" as opposed to "mere technical contravention of the IDEA"); Jana K. ex
rei. Tim K. v. Annville-Cleona Sch. Dist., 39 F. Supp. 3d 584, 603 (M.D. Pa. 2014) ("a school
district is not obligated to conduct a formal evaluation of every struggling student and it may be
prudent to offer other interventions before rushing to a special education identification:').
Plaintiffs argue that the AU "grievously erred," after making a finding that Defendants
erred in failing to evaluate T.B., by concluding, in Plaintiffs' words, "that T.B. was essentially,
beyond help - that, even ifT.B. had been promptly evaluated and had been given the proper
supports, T.B. would not 'have regularly attended school.'" ECF No. 27-1 at 34. Certainly, the
Court is concerned about the notion that any child could be considered "beyond help" and,
without context, would be troubled by the AU's conclusion that "the Student simply does not
want to go to school," and that "whether with or without an IEP, and even with an IEP providing
a small, self-contained special education classroom setting with only 8-12 students in the class,
the Student will not go to school." AU at 25. In a vacuum, it is not difficult to imagine that if a
child receives help in middle school, such help could lessen discouragement and the child's later
reluctance to go to school. But this Court is not reviewing this matter in a vacuum and cannot

17

discard the informed opinions ofT.B.'s educators and the credibility findings of the AU, who
had the advantage of hearing the testimony. See Wagner v. Bd. ofEduc. of Montgomery Oy., 340
F. Supp. 2d 603, 611 (D. Md. 2004) ("in according 'due weight' to the findings of the AU, this
court owes deference to the AU's determinations of the credibility of witnesses.").
Upon considering the entirety of the record before him, the AU concluded that PGCPS's
failure to evaluate T.B. amounted to harmless procedural error, because, despite T.B.'s
difficulties, T.B. was a student of normal intelligence who was capable of doing the work when
he chose to do so. The AU heard testimony from no fewer than 11 ofT.B. 's teachers, most of
whom indicated T.B. was able to produce satisfactory work, but refused to come to class or do
homework. Linda Wilkinson, who taught T.B. for ninth grade English, testified that he "failed
every quarter because he simply did not do the work." AU at 32. Ms. Wilkinson further stated
that "when he wanted to do the work, his work was satisfactory and he achieved some good
grades on assignments he completed." /d. Sam Kamara, who taught T.B. for tenth grade
Foundations of Technology, testified that "he was capable of doing the work required of him"
but "the Student simply didn't do homework and showed little effort or motivation." /d.
Even teachers who attempted to accommodate T.B. fared no better. T.B.'s tenth grade Art
teacher, Anna Guiles Deskin, testified that "she gave the Student an opportunity to tum in work
later when he was absent, but that he never did so:' Ms. Deskin testified that T.B. "showed poor
motivation and rarely did homework or classwork" but that "the work that the Student did tum in
was satisfactory." AU at 32. Jennifer Eller, T.B.'s tenth grade English teacher, testified that
when T.B. did come to class, "he was disruptive, talk[edJ with other students out of tum, used his
cell phone, refused to follow directions and made insulting statements to Ms. Eller." AU at 33.
Several teachers also testified that they notified T.B. 's Parents about his poor performance and

18

requested a meeting, but that the Parents never responded. Id. The ALl found that "[mJost ifnot
all of the witnesses testified that they had referred students for special education in the past or
that they were prepared to do so, but that there was no reason to suspect that the Student suffered
from a learning disability or any other condition mandating special education services." ALl at

30-31.
Additionally, Leatriz Covington, principal at Gourdine Middle School, testified that the
rigors of middle school are much greater than those in elementary school. Hrg. Tr. vol. 1,147148. Ms Covington testified that it is not at all unusual for a student who is successful with As
and Bs in elementary school to come to middle school and wind up with Os and Es. Id. at 149.
School Psychologist Vincent Tepe agreed, after evaluating T.B., that he was affected by an
emotional disability; however, Mr. Tepe testified that "I didn't see any evidence of an emotional
disability prior to Spring 01'2014 in any of the records anywhere." Hrg. Tr. vol. 6,1385. In sum,
the Court cannot say that the school overlooked clear signs of either a learning disability or an
emotional disability, particularly in light ofT.B.'s

frequent absences, conflicting explanations by

the Parents, and the increased rigor of middle school and high school. See Richard S. v.
Wissahickoll Sch. Disl., 334 F. App'x 508, 51 I (3d. Cir. 2009) (allirming no Child Find violation
where extensive evidence in the record showed that middle school student was "perceived by
professional educators to be an average student making meaningful progress. but whose
increasing dilliculty in school was attributable to low motivation. frequent absences, and failure
to complete homework."). Hence, the record is replete with evidence supporting the ALl's
findings.
In detennining when a procedural violation of IDEA interfered with the provision of a
FAPE, the Fourth Circuit's decision in DiBuo offers a helpful illustration. See DiBuo ex reI.

19

DiBliO v. Bd. ofEdlic. of Worcester CIy., 309 F.3d 184, 191 (4th Cir. 2002)). In that case, the
AU found that a child with a speech-and-Ianguage disability was not entitled to "Extended
School Year" ("ESY") services during the summer; and thus, the school's earlier refusal to
consider the parents' independently-obtained

private evaluations recommending ESY services

for the child, while a procedural error, did not "actually interfere" with the provision of FAPE.

Id at 191. Parents appealed the decision of the AU, and the district court granted summary
judgment for the parents, holding that such refusal by the school "seriously infringed the parents'
opportunity to participate in the fEP formulation process." Id at 188. On appeal, the Fourth
Circuit stated that if"a presumably correct finding is made" that a child with a disability does not
need a specific special education service, support, or other accommodation to receive a FAPEsuch as ESY services -

the procedural failure to consider parents' private evaluations stating the

contrary "cannot be said to have actually interfered with the provision of FAPE to that child:' Id
Hence, if the AU in DiBlio was correct in finding that the child was not entitled to ESY services,
the AU was also correct in finding no denial of FAPE. Similarly here, the AU made a finding
that T.B. would not have attended school even ifhe had been tested, and this finding was
regularly made and supported by evidence. Giving due weight to the underlying proceedings.
this Court affirms the AU's conclusion that the procedural failure to respond to the Bartons'
request for an evaluation did not actually interfere with the provision of FAPE.
C. Reimbursement

for the Independent Educational

Evaluation

The AU next determined that the Bartons were not entitled to reimbursement for the
privately-procured
"'demonstrated'

Independent Educational Evaluation because the agency, PGCPS,

a failure to show that the lEE meets 'agency criteria.'" AU at 29. In addition to

contending that the AU was correct in reaching this conclusion, Defendants also posit a second,

20

alternative basis for upholding the AU's decision -

namely that the regulation requires that the

parent disagree with an evaluation obtained by the public agency, and here there was no
evaluation performed with which the parents could disagree. ECF No. 28-1 at 42. Both issues
tum on the interpretation of provisions of34 C.F.R.

S 300.502(b).

The regulation reads as

follows:
b) Parent right to evaluation at public expense.
I. A parent has the right to an independent educational evaluation at public expense
if the parent disagrees with an evaluation obtained by the public agency, subject
to the conditions in paragraphs (b)(2) through (4) of this section.
2. If a parent requests an independent educational evaluation at public expense, the
public agency must, without unnecessary delay, eitheri. File a due process complaint to request a hearing to show that its
evaluation is appropriate; or
n. Ensure that an independent educational evaluation is provided at public
expense, unless the agency demonstrates in a hearing pursuant to SS
300.507 through 300.513 that the evaluation obtained by the parent did not
meet agency criteria.
34 C.F.R.

S 300.502(b).

Plaintiffs argue that, in contravention of (b)(2)(ii), the AU improperly

shifted the burden to the parents to demonstrate that the independent evaluation from the Basics
Group "met agency criteria." ECF No. 27-1 at 56. Plaintiffs are correct. In reaching his
conclusion, the AU noted that Defendants had put forth testimony at the hearing criticizing the
conclusions of the report. See AU at 28; 34 C.F.R.

S 300.502(b)(2)(ii).

But the AU then stated,

"[w]ith one important exception, however, Mr. Tepe and PGCPS did not clearly establish that
the report/ailed

to meet 'agency criteria.''' AU at 28 (emphasis added). Specifically, the AU

found that I'GCI'S did not establish that the Basics assessment was not "administered by trained
and knowledgeable personnel," which is one of the established criteria. 34 C.F.R.
300.304( c)( 1)(iv).

21

S

Given that (b)(2)(ii) requires the agency to demonstrate at a hearing that the evaluation
did not meet agency criteria, if the AU's conclusion is that the agency did not meet this burden,
that should end the matter. Nonetheless, the AU determined that "[ilf the school district were
required to 'prove' that the evaluator was nor trained and knowledgeable, it would allow
virtually anyone to conduct an lEE for a parent and make it exceedingly difficult for the school
district to 'prove a negative,''' AU at 29 (emphasis in original). But, as the AU acknowledges,
the authors of the report could have been subpoenaed to testify at the hearing, and this Court is
aware of no reason why that would have been difficult or burdensome to accomplish. AU at 29
n.12. Thus, the absurd outcome the AU was apparently seeking to avoid does not exist here, and
there is no reason to believe that the drafters of the regulation did not mean what they said when
they crafted language placing the burden on the agency to demonstrate that the lEE did not meet
agency criteria. The Court is, however, unclear if the AU's qualifying statement, "with one
exception," was intended as a conclusion that PGCPS did establish that the additional criteria,
beyond the knowledge and training of the personnel, had not been met.'s Thus, the Court will
vacate and remand the decision on this issue for a determination or clarification of whether the
agency met its burden of establishing that the report failed to meet agency criteria.
The Court will, however, also address Defendants' alternative argument that, because the
regulation states that the right to an independent educational evaluation at public expense arises
"if the parent disagrees with an evaluation obtained by the public agency," the public agency's
evaluation of the child is a necessary condition precedent to the parents' right to the evaluation at
public expense. ECF 28-1 at 43. The Court disagrees.

"For example, to the extent that there is a list of specific criteria, if the All found that the agency established that
some of the criteria had not been met. it would seem that the agency did carry its burden of establishing the report
did not meet agency criteria; but it is unclear if that is what the ALJ intended in his ruling.

22

The record is clear, and the ALJ found, that the Parents made repeated requests for T.B.
to be evaluated by the school over the course of at least two years, to no avail. ALJ at 24. It
would make little sense to force Parents to wait for their child to be evaluated by the school, if
the school was entirely, and improperly, unresponsive to a series of requests for an evaluation.
Cf Learning Disabilities Ass'n of Maryland. Inc. v. Bd. of Educ. of Baltimore Cly. 837 F. Supp.
717,722-23 (D. Md. 1993) ("Exhaustion may be deemed futile 'where the state agency itself
prevented administrative remedies from being exhausted"');

Warren G. v. Cumberland Cty. Sch.

Dist .. 190 F.3d 80, 87 (3d Cir. 1999) (observing that requiring parents to notify school district
before obtaining an lEE would "render the regulation pointless because the object of parents'
obtaining their own evaluation is to determine whether grounds exist to challenge the
District's. ").
The ALJ determined that "PGCPS erred in failing to respond to the Parents' requests and
conduct a timely evaluation." ALJ at 25. To hold that the parents could not, in this circumstance,
obtain a publicly-funded evaluation would defeat the purpose of34 C.F.R.

S 300.502(b)(I),

which is to provide parents with the ability to effectively challenge the decision of the school.
See Warren G., 190 F.3d at 87. Indeed, this case provides the example for why such a holding is
necessary. Although the report was ultimately unpersuasive to the ALJ, without it, the Parents
would have been entirely unable to challenge the decision Defendants did make, which was that
T.B. should not even be evaluated. In essence, PGCPS had simply made an informal evaluation
that T.B. was not disabled. In a circumstance such as this one, where the ALJ has found that the
refusal to conduct a formal evaluation was improper, reimbursement for a private evaluation is
appropriate. Defendants' citation to G.J. v. Muscogee Cty. Sch. Dist., 668 F.3d 1258, 1266 (11th
Cir. 2012) does not persuade this Court to reach a different conclusion. While it is true that the

23

Sixth Circuit in G..J. held that "ltlhe right to a publicly funded independent educational
evaluation does not obtain until there is a [evaluation or] reevaluation with which the parents
disagree:' id. at 1266, in that case, the reevaluation did not occur because the parents refused to
consent to the reevaluation. Here, it is the Defendant's failure, not the parents" that led to the
lack of evaluation.
However, because the Court is unclear as to whether the AU found the agency met its
burden of establishing that the report did not meet agency criteria, the Court remands this part of
the decision to provide the AU the opportunity to clarify his ruling in light of the Court's
holding.
IV.

CONCLUSION
For the reasons stated above, Defendants' Cross Motion for Summary Judgment is

granted with respect to the application of the statute of limitations and denial of compensatory
education, and the AU's decisions on these issues are therefore affirmed. Plaintiffs' Motion for
Summary Judgment is granted, in part, with respect to the denial ofreimbursement

for the

independent educational evaluation, and the AU's decision on this issue is remanded for further
proceedings or clarification. A separate Order shall issue.

Date: December');

2016
George J. Hazel
United States District Judge

24