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E.P. v. Howard County Public School System

United States District Court, D. Maryland

October 25, 2016



          Ellen Lipton Hollander United States District Judge.

         E.P., a male teenager with learning disabilities, by and through his parents, J.P. and A.P., plaintiffs, filed suit against the following defendants: 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, the “School Board”). ECF 2, Complaint, ¶ 1.[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, 13A.05.01.01, et seq. Id. ¶¶ 1, 20-21. Plaintiffs' suit is rooted in their request for an Independent Educational Evaluation (“IEE”) at the expense of the School Board, consisting of a neuropsychological evaluation and Functional Behavior Assessment. In particular, plaintiffs seek to reverse the Decision and Order of an Administrative Law Judge (“ALJ”) of the Maryland Office of Administrative Hearings (“OAH”), in which the ALJ determined that E.P. is not entitled to the IEE.

         Pursuant to 20 U.S.C. § 1415(i)(C)(ii), [3] plaintiffs have filed a motion (ECF 15) to supplement the administrative record, supported by a memorandum of law (ECF 15-1) (collectively, the “Motion”). They seek to add the report of Lisi Levisohn, Ph.D, who conducted an independent neuropsychological-educational evaluation, at plaintiffs' request, after the administrative hearing. A redacted version of Dr. Levisohn's report is appended to the Motion. ECF 15-3 (the “Report”).[4] According to plaintiffs, “a comparison” of the Report to the evaluation of E.P. that was conducted by the School Board in 2014 “demonstrates the insufficiencies and inappropriateness of HCPSS's evaluation of E.P.” ECF 15-1 at 2. Moreover, plaintiffs claim that the Report should be added to the record because it was issued “only recently, well after the underlying administrative hearing in this matter concluded. . . .” Id.

         Defendants oppose the Motion (ECF 19, “Opposition”) and have included two exhibits. ECF 19-1; ECF 19-2. Plaintiffs have replied (ECF 20, “Reply”) and submitted an additional exhibit. ECF 20-1.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

         I. Factual and Procedural Background[5]

         E.P. was born in January 2002. ECF 2 ¶ 7. At the relevant time, he was enrolled as a student in HCPSS. ECF 2, ¶ 2. Previously, E.P. attended a school in Prince George County, where he was classified as a gifted student. Id.; ECF 16, ALJ Decision, ¶ 2.[6] In the sixth grade at HCPSS, however, E.P. was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and received an Accommodations Plan, pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. ECF 2, ¶¶ 2, 13.[7] E.P. was required to repeat the sixth grade due to his poor performance. In E.P.'s second sixth grade year, his parents asked HCPSS to evaluate him for eligibility for Special Education services under IDEA. ECF 2, ¶ 3; see also ECF 16, ALJ Decision, ¶ 8.

         HCPSS evaluated E.P. in November 2014. ECF 2, ¶ 15. HCPSS obtained two reports- an Educational Assessment Report dated November 14, 2014, authored by Margaret Bosse, Special Education Teacher and Team Leader, and a Report of Psychological Assessment dated November 25, 2014, authored by Alyson Celauro, Ed.S., a Nationally Certified School Psychologist (collectively, “HCPSS Evaluation”). ECF 2, ¶ 15; see also ECF 16, Educational Assessment Report; ECF 16, Report of Psychological Assessment.

         The Educational Assessment Report, which is five pages in length, summarizes E.P.'s performance on Woodcock Johnson III achievement tests. ECF 16, Educational Assessment Report, at 1. In the nine-page Report of Psychological Assessment, Celauro concluded that E.P.'s overall cognitive ability, as measured by the Wechsler Intelligence Scale for Children (4th Edition) falls in the superior range of functioning as compared to his peers. ECF 16, Report of Psychological Assessment, at 7. But, Celauro determined that E.P. has a deficit in the area of processing skills and behavior ratings consistent with his diagnosis of ADHD. Id.

         The HCPSS Evaluation contained no recommendation or finding regarding E.P.'s eligibility under IDEA. ECF 2, ¶ 16; see also ECF 16, Educational Assessment Report; ECF 16, Report of Psychological Assessment. On December 2, 2014, on the basis of these reports, E.P.'s Individualized Education Program (“IEP”) team determined that E.P. was not eligible under IDEA to receive special education services. ECF 2, ¶ 16; ECF 16, ALJ Decision, ¶ 89; ECF 16, Evaluation Report Specific Learning Disability Supplement, at 2-3; ECF 16, IEP Team Meeting Report, at 2. However, the IEP team recommended that E.P. should receive “checking for understanding, extra time to process directions, and chunk assignments/rubric to support his organization.” ECF 16, IEP Team Meeting Report, at 2. In addition, the team recommended that E.P. and his family “should advocate for extra time as needed.” Id.

         E.P.'s parents regarded the HCPSS Evaluation as “inadequate and inappropriate . . . .” ECF 2, ¶ 16. In particular, they claimed that it failed to evaluate E.P. “in all areas of suspected disability.” Id. ¶ 16. And, they disagreed with the determination of non-eligibility for services under IDEA. Id. ¶ 17. By letter dated March 31, 2015, E.P.'s parents, through counsel, requested an IEE, including neuropsychological testing and a Functional Behavior Assessment. Id. HCPSS denied the request and, on May 4, 2015, filed a due process complaint to defend its evaluation, pursuant to 34 C.F.R. § 300.502(b)(2)(i)-(ii). Id.

         HCPSS's due process complaint was considered by an ALJ at hearings held on June 6, June 26, and July 7, 2015. Id. ¶¶ 4, 18. On August 6, 2015, the ALJ found that HCPSS's 2014 evaluation of E.P. was appropriate (id., ¶ 5; ECF 16, ALJ Decision, at 56) and, accordingly, that E.P. was not entitled to an IEE at public expense, in accordance with 20 U.S.C. §1415(b)(1). ECF 2, ¶ 19; ECF 16, ALJ Decision, at 56.

         On December 4, 2015, plaintiffs filed suit in this Court, pursuant to 20 U.S.C. § 1415(i), seeking reversal of the ALJ's decision. See ECF 1.[8] Plaintiffs argue, inter alia, id. ¶ 5:

The ALJ's finding that HCPSS's evaluation of E.P. was appropriate is legally baseless and factually incorrect. The evaluation failed to comprehensively evaluate E.P. in all areas of suspected disability and improperly evaluated E.P. for a suspected Specific Learning Disability using an inappropriate methodology. Moreover, the HCPSS evaluation did not, as specifically required by IDEA, make any determination whether E.P. was a child with a disability and eligible under IDEA to receive Special Education.

         Plaintiffs also ask the Court to order HCPSS to fund an IEE for E.P. Id. at 29. As noted, after the ALJ issued his ruling, plaintiffs obtained Dr. Levisohn's IEE. Because of plaintiffs' financial circumstances, plaintiffs' counsel advanced the cost of the IEE. ECF 15-1 at 9 n. 4. In the Motion, plaintiffs clarify that they seek reimbursement for the cost of Dr. Levisohn's IEE. Id.

         Plaintiffs have moved to supplement the administrative record to add the Report of Dr. Levisohn, who conducted an independent neuropsychological-educational evaluation of E.P. in October and November 2015, and issued her Report in March 2016, subsequent to the administrative hearing. ECF 15; ECF 15-1; ECF 15-3. In her 25-page Report, Dr. Levisohn concluded that E.P. qualifies for an IEP, under the eligibility category of specific learning disability. ECF 15-3 at 21.

         II. 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);[9] see also 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). 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....

         However, “[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). If a child qualifies, “[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 should be “‘reasonably calculated to enable the child to receive educational benefits.'” Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)).

         “Parents and guardians play a significant role in the IEP process.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). Accordingly, IDEA “provides a panoply of procedural rights to parents to ensure their involvement in decisions about their disabled child's education.” Sellers, 141 F.3d at 527. Through these procedures, IDEA “‘guarantee[s] parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate.'” AW ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 678 (4th Cir. 2004) (brackets in original) (quoting Honig v. Doe, 484 U.S. 305, 311-12 (1988)).

         Of import here, under certain circumstances the Act requires that a parent is permitted “to obtain an independent educational evaluation of the child, ” at public expense. Rowley, 458 U.S. 176, 183 n. 6 (1982) (citation omitted); see also 20 U.S.C. ยง1415(b)(1). The ...

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