United States District Court, D. Maryland
E.P., BY AND THROUGH HIS PARENTS, J.P. AND A.P. Plaintiffs,
HOWARD COUNTY PUBLIC SCHOOL SYSTEM, et al., Defendants.
Lipton Hollander United States District Judge.
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. 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; 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.
to 20 U.S.C. § 1415(i)(C)(ii),  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”). 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.
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.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall deny
Factual and Procedural Background
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. 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. 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.
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
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.
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
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. §
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.
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. 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.
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.
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.
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 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)
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
“[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)).
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)).
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.
§1415(b)(1). The ...