E.P. v. Howard Cnty. Pub. Sch. Sys.

• Decision Date: 21 August 2017
• Docket Number: Civil Action No. ELH-15-3725
• Parties: E.P., BY AND THROUGH HIS PARENTS, J.P. AND A.P. Plaintiffs, v. HOWARD COUNTY PUBLIC SCHOOL SYSTEM, et al., Defendants.
• Court: U.S. District Court — District of Maryland

E.P., BY AND THROUGH HIS PARENTS, J.P. AND A.P. Plaintiffs, v. HOWARD COUNTY PUBLIC SCHOOL SYSTEM, et al., Defendants.

Civil Action No. ELH-15-3725

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 21, 2017

MEMORANDUM OPINION

E.P., a male teenage student, by and through his parents, J.P. and A.P. (the "Parents"), plaintiffs, filed suit against the Howard County Public School System ("HCPSS"); the Board of Education of Howard County; and Dr. Renee A. Foose, in her official capacity as Superintendent of HCPSS (collectively, "HCPSS" or "defendants"). ECF 2, Complaint.¹ Plaintiffs allege violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.; IDEA implementing regulations, 34 C.F.R. § 300.1 et seq.; the Education Article of the Maryland Code;² and Title 13A of the Code of Maryland Regulations ("COMAR"), 13A.05.01.01, et seq. Id. ¶¶ 1, 20-21.

In particular, plaintiffs challenge the Decision and Order of an Administrative Law Judge ("ALJ") of the Maryland Office of Administrative Hearings, issued in August 2015. See ECF 16, Howard County Public Schools v. E.P., Student, OAH No. MSDE-HOWD-OT-15-15272 ("Decision"). In the Decision, the ALJ determined, inter alia, that E.P. is not entitled to an Independent Educational Evaluation ("IEE") at public expense because the evaluation conducted by HCPSS was appropriate. ECF 2 at 29. Accordingly, plaintiffs ask this Court to order an IEE of E.P., at the expense of HCPSS, consisting of a "neuropsychological evaluation, and a Functional Behavior Assessment...." Id.

Plaintiffs have moved for summary judgment based on the administrative record (ECF 29), supported by a memorandum of law (ECF 30) (collectively, "Motion").³ Defendants filed a combined cross motion for summary judgment and opposition to plaintiffs' Motion (ECF 32), supported by a memorandum of law (ECF 32-1) (collectively, "Cross Motion"), with exhibits. ECF 32-2 to ECF 32-5. In a combined submission, plaintiffs filed a reply with respect to the Motion and opposed the Cross Motion. ECF 34. Thereafter, defendants filed a reply as to their Cross Motion (ECF 35), supported by two exhibits. ECF 35-1; ECF 35-2.⁴

On March 22, 2017, prior to the completion of the briefing for the cross motions, the Supreme Court decided Endrew F. ex rel. Joseph F. v. Douglas County School District, ___U.S.___, 137 S. Ct. 988 (2017), a case arising under the IDEA. Curiously, counsel did not address this case in their submissions. Accordingly, by Order of May 2, 2017 (ECF 36), I directed the parties simultaneously to submit memoranda addressing the impact, if any, of Endrew F. on the cross motions for summary judgment. And, I permitted simultaneous replies to the memoranda. Id. The parties submitted their memoranda on May 12, 2017. ECF 37 (plaintiffs); ECF 38 (defendants). They filed replies on May 22, 2017. ECF 39 (plaintiffs); ECF 40 (defendants).

Of import here, this is not a case where the Parents filed a due process complaint under 34 C.F.R. § 300.507, to establish the improper denial of a "free appropriate public education" or to establish that E.P. should have been found eligible for special education services. Rather, this is a case in which HCPSS filed a due process complaint, pursuant to 34 C.F.R. § 300.502(b)(2)(i)-(ii), to defend its educational and psychological assessments of E.P. Accordingly, the suit does not implicate the determination of E.P.'s individualized education program ("IEP") team, which found that E.P. is not eligible for special education services under IDEA; the IEP team's eligibility determination is not relevant to the question of whether HCPSS's evaluation was appropriate. See 20 U.S.C. § 1414(d)(1)(B), discussed, infra.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion and grant the Cross Motion. Accordingly, I shall affirm the ALJ's Decision.

I. Statutory Framework

"Congress enacted IDEA in 1970^[] to ensure that all children with disabilities are provided 'a free appropriate public education which 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 are protected.'" Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009) (citation omitted) (alterations in Forest Grove); see also see also M.L. by Leiman v. Smith, ___F.3d___, 2017 WL 3471257, at *4 (4th Cir. Aug 14, 2017); Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524, 527 (4th Cir.) ("[T]he touchstone of IDEA is the actual provision of a free appropriate public education."), cert. denied, 525 U.S. 871 (1998).⁵ To this end, IDEA mandates that "all states receiving federal funds for education must provide disabled schoolchildren with a 'free appropriate public education,'" commonly referred to as a "FAPE." J.P. ex rel. Peterson v. Cnty. Sch. Bd., 516 F.3d 254, 257 (4th Cir. 2008) (citation omitted).

In 20 U.S.C. § 1401(9), "free appropriate public education" is defined as follows:

[S]pecial education and related services that—

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) 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....

"Special education" is "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education." Id. § 1401(29). "The goals of the 'specially designed instruction' are '(i) [t]o address the unique needs of the child that result from the child's disability; and (ii) [t]o ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.'" M.L., 2017 WL 3471257, at *4 (quoting 34 C.F.R. § 300.39(b)(3) ( alterations in ML).

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. § 300.111(a). "This duty is known as the 'child find' obligation." Brown, 769 F. Supp. 2d at 941. Judge Hazel of this Court recently explained:

The child find obligation extends to "children who are suspected of being a child with a disability under § 300.8 and in need of special education, even though they are advancing from grade to grade." 34 C.F.R, § 300.111(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. T.A., 557 U.S. 230 (2009)).

T.B. ex rel. T.B. v. Prince George's Cty. Bd. of Educ., GJH-15-03935, 2016 WL 7235661, at *8 (D. Md. Dec. 13, 2016), appeal dismissed sub nom. T. B., JR. V. PRINCE GEORGE'S COUNTY (Jan. 12, 2017), and appeal filed Case. No. 17-1877, July 27, 2017.

In other words, the child-find "requirement requires school districts [to] identify and evaluate all students who are reasonably suspected of having an educational disability underIDEA." W. Chester Area Sch. Dist. v. G.D., No. CV 16-4471, 2017 WL 379440, at *3 (E.D. Pa. Jan. 25, 2017) (internal quotation marks and citation omitted, alteration added). In order "[t]o be considered a member of the IDEA's protected class, the individual must be classified as having a recognized disability." Carter by Ward v. Prince George's Cnty. Pub. Sch., 23 F. Supp. 2d 585, 589 (D. Md. 1998); see also 20 U.S.C. § 1401(3) (listing the covered disabilities under IDEA).

Notably, "[a] school provides a FAPE by developing an IEP for each disabled child." J.P., 516 F.3d at 257. The IEP consists of "a written statement for each child with a disability," 20 U.S.C. § 1414(d)(1)(A)(i), which "'must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress.'" J.P., 516 F.3d at 257 (citation omitted).

An IEP is developed "only after careful consideration of the child's present levels of achievement, disability, and potential for growth." Endrew F., 137 S. Ct. at 999. An IEP should be "'reasonably calculated to enable the child to receive educational benefits.'" J.P., 516 F.3d at 247 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). Moreover, "[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001.

Under 20 U.S.C. § 1414(d)(1)(B), an IEP team refers to

"a group of individuals composed of--

(i) the parents of a child with a disability;

(ii) not less than 1 regular education teacher of such child (if the child is, or may be, participating in the regular education environment);

(iii) not less than 1 special education teacher, or where appropriate, not less than 1 special education provider of such child;(iv) a representative of the local educational agency who--

(I) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(II) is knowledgeable about the general education curriculum; and

(III) is knowledgeable about the availability of resources of the local educational agency;

(v) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in clauses (ii) through (vi);

(vi) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise

...