Virginia Office of Prot. and Adv. V. Virginia, CIV. 3:03CV026.

Decision Date16 May 2003
Docket NumberNo. CIV. 3:03CV026.,CIV. 3:03CV026.
CourtU.S. District Court — Eastern District of Virginia
PartiesVIRGINIA OFFICE OF PROTECTION AND ADVOCACY, et al., Plaintiffs, v. Commonwealth of VIRGINIA, DEPARTMENT OF EDUCATION, et al., Defendants.

Gary Leslie Conover, Virginia Office for Protection, Richmond, VA, for plaintiffs.

Deborah Love Feild, Office of the Attorney General, Richmond, VA, for defendants.

MEMORANDUM OPINION

(Motions to Dismiss)

HUDSON, District Judge.

This case concerns Plaintiffs' allegations that the Virginia Department of Education and a number of its officials mishandled both a complaint review and a due process hearing that Plaintiffs initiated on behalf of several children, named and unnamed, under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400, et. seq. The matter is currently before the Court on Defendants' Federal Rule of Civil Procedure [hereinafter "Rule(s)"] 12(b)(1) motion to dismiss Counts I, II, III, and IV of the complaint for lack of subject matter jurisdiction and their Rule 12(b)(6) motion to dismiss Counts III and IV for failure to state a claim upon which relief can be granted. The case centers around the parties' interpretation and application of a panoply of federal and state special education statutes and regulations. The Court will begin its analysis by surveying relevant portions of the IDEA.

I. The Individuals with Disabilities Education Act

Through the IDEA, Congress provides federal funds to state and local agencies to assist with the education of disabled children. Congress conditions this funding upon each recipient state's compliance with certain educational objectives and procedures. For example, to qualify for IDEA funds a state must demonstrate that it "has in effect policies and procedures to ensure that ... [a] free and appropriate public education is available to all children with disabilities residing in the State ...." 20 U.S.C. § 1412(a)(1)(A). Moreover, the state must fashion its free and appropriate public education ("FAPE") to the unique needs of each disabled child by means of an individualized educational program, or "IEP," as mandated by 20 U.S.C. § 1414(d).

To implement the legislative intent underlying the Act, Congress delegated to every recipient state education agency ("SEA") and/or local education agency ("LEA") the responsibility of establishing certain basic, procedural safeguards meant to protect the disabled child's right to a FAPE. 20 U.S.C. § 1415. For example, the funded agency must provide the parents of a disabled child "an opportunity ... to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child ... and to obtain an independent educational evaluation of the child ...." Id. § 1415(b)(1). Additionally, participating SEAs and LEAs must provide the child or his parent with prior written notice, in the parent's native language, whenever the agency intends to change the child's IEP. Id. § 1415(b)(3) & (b)(4).

Finally, and central to the immediate case, is each state's responsibility to establish a two-tiered, administrative system of review by which to assess the appropriateness of a disabled child's education. Initially, the agency must provide "an opportunity to present complaints 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." Id. § 1415(b)(6). Thereafter, the agency must allow a parent who has filed such a complaint the opportunity to initiate an impartial due process hearing, which is conducted by either the SEA or the LEA. Id. § 1415(f). Because this case arises from the results of two such hearings, a complaint resolution proceeding ("CRP") and its related due process hearing, it is important to understand the statutes and regulations that underlie each.

A. The Complaint Resolution Procedure

In its delegation of authority, Congress created minimum standards governing a state's IDEA complaint resolution procedure. See 20 U.S.C. § 1221e-3; 34 C.F.R. §§ 300.660-300.662. To effectuate and define the CRP's procedural requirements within the Commonwealth of Virginia, the General Assembly enacted Title 8 of the Virginia Administrative Code § 20-80-78. Under this provision, the Virginia Department of Education ("VDOE") maintains and operates the CRP system, and the Superintendent for Public Instruction supervises it. 8 Va. Admin. Code § 20-80-78(A).

According to both federal and state law, any individual or organization may initiate a CRP by filing a complaint, provided the complaint is in writing and is signed by the complainants. Id. § 20-80-78(B). The complaint must contain "a statement that a local educational agency has violated the [IDEA] or [the relevant] special educational regulations," listing what, if any, facts support such an accusation. Id. It must also address an action that occurred within the preceding year and include all relevant, supporting documents. Id.; see also 34 C.F.R. § 300.661. The SEA is required to provide certain minimal, procedural protections during a complaint resolution proceeding including conducting an on-site investigation, if necessary, offering the complainants an opportunity to submit additional information in support of their complaint, reviewing all relevant information and making an independent determination regarding the local agency's compliance with the IDEA, and issuing a written opinion within sixty (60) days after the complaint is filed. 34 C.F.R. § 300.661. The sixty(60) day time limit may be extended under "exceptional circumstances." Id. § 300.661(4)(b)(1).

In Virginia, the VDOE is responsible for reviewing both the complaint and any reply filed by the LEA. 8 Va. Admin. Code § 20-80-78(C). It then must conduct an investigation to determine whether the LEA has complied with the applicable laws and regulations. Id. At the conclusion of the investigation, the VDOE must make a determination of compliance or noncompliance and notify the parties in writing of its conclusions and findings of fact. Id. Parties who are not satisfied with the decision have thirty (30) calendar days to appeal to the VDOE in accordance with established Virginia Board of Education procedure. Id. § 20-80-78(G). Neither the governing federal law nor the applicable state statute provides for judicial review of a CRP proceeding or decision.

B. The Due Process Hearing

As a second forum for review, the IDEA requires that any parent who files a complaint must also be allowed the opportunity to participate in an impartial due process hearing, which is conducted by a designee of either the SEA or the LEA. 20 U.S.C. § 1415(f). To implement this component of the IDEA, the Virginia General Assembly enacted Title 22.1 of the Virginia Code § 214 and delegated the responsibilities of supervision and implementation to the Virginia Board of Education.

Unlike the wide net cast by CRP regulations, only a parent or child who has previously filed a complaint can request a due process hearing. 20 U.S.C. § 1415(f); Va. Code § 22.1-214(B). This hearing is more formal than is a CRP hearing and is more adversarial in nature. For example, all parties to a due process hearing have:

(1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities;

(2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) the right to a written, or, at the option of the parents, electronic verbatim record of such hearing; and

(4) the right to written, or, at the option of the parents, electronic findings of fact and decisions (which findings and decisions shall be made available to the public consistent with the requirements of [20 U.S.C. § 1417(c)] (relating to the confidentiality of data, information, and records) and shall also be transmitted to the advisory panel established pursuant to section [20 U.S.C. § 1412(a)(21)]).

20 U.S.C. § 1415(h).

Each participating state may delegate its responsibility to conduct due process hearings to a SEA- or an LEA-designee, typically referred to as a hearing examiner. 20 U.S.C. § 1415(f)(1). The decision of a hearing examiner is final, except that any party involved in the hearing who is displeased with the examiner's decision may appeal. 20 U.S.C. § 1415(g) & (i).

When the due process hearing is conducted by a designee of the LEA, an aggrieved parent may appeal to the SEA which must conduct an independent review of the decision. 20 U.S.C. § 1415(g). Any party who is dissatisfied with the SEA's appellate finding may then appeal to either a competent state court or to a United States District Court. 20 U.S.C. § 1415(i)(1)(B). If, however, the due process hearing is conducted by a SEA-designee, an aggrieved party may appeal immediately to the appropriate United States District Court. 20 U.S.C. § 1415(i)(2). "The district courts of the United States shall have jurisdiction of [due process appeals] without regard to the amount in controversy." 20 U.S.C. § 1415(i)(3)(A).

II. Procedural History of This Case

On January 14, 2000, Plaintiff Virginia Office of Protection and Advocacy ("VOPA") filed a complaint ("the Complaint") with Defendant Jo Lynne DeMary ("DeMary"), the Virginia Superintendent of Public Instruction, on its own behalf, on behalf of a number of parents including Plaintiffs Cynthia Barbieri and Pat Passalacqua, and their children, and on behalf of a class of unnamed children who were all students in the Fairfax County Public Schools ("FCPS"). Comp. If 11. The Complaint contested FCPS's educational placement of those children, named and unnamed, who were classified as moderately mentally...

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