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T.B. ex rel. T.B. v. Prince George's County Board of Education

United States District Court, D. Maryland, Southern Division

December 13, 2016

T.B., Jr. ex rel. T.B., Sr. and F.B. Plaintiffs,


          George J. Hazel United States District Judge.

         Plaintiffs 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 ALJ") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §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. Plaintiffs" 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 ALJ'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[3]

         T.B.[4] was born on July 25, 1998. T.B. began attending Prince George's County Public Schools ("PGCPS") in elementary school. ALJ 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." ALJ 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. ALJ at 9; ECF No. 1 at 8-9. T.B. received numerous Ds and failing grades throughout seventh and eighth grades. ALJ at 9; ECF No. 1 at 8-9. His teachers commented that T.B. "[did] not follow instructions" and had "[m]issing/incomplete assignments" and "[p]oor test/quiz grades." ECF No. 1 at 9.

         In the Fall of 2012, T.B. entered high school at Friendly High School. ALJ at 9. According to Plaintiffs' Complaint, T.B.'s academic decline "continued and intensified." ECF No. 1 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 meeting[6] concerning T.B. ALJ at 9; ECF No. 1 at 10.

         T.B.'s mother, Mrs. Barton, and several PGCPS staff were present: however, none of T.B.'s classroom teachers attended the meeting. ALJ at 10. While the IEP team did not conduct formal testing of T.B., the team concluded on "all available information" that his difficulties were not the result of a learning disability or any condition requiring special education services, and did not order further assessments. ALJ 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, 7 which provides information on how to file a due process complaint and the applicable statute of limitations. Id. at 9.[7] The team agreed to schedule a parent-teacher conference for January 2013. Id. at 10.

         As T.B. progressed through ninth grade, he continued to struggle in school and miss class. ALJ 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. ALJ at 9. Friendly High School held parent-teacher conferences on January 16, 2013. ALJ 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 of T.B.'s ninth grade year and his tenth grade year. T.B.'s absences became increasingly frequent, and he failed many of his classes. ALJ 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. asking for T.B. to be "tested for learning disabilities." ALJ at 13. Despite these requests, PGCPS did not test T.B. Id. At the end of school year 2013-2014, T.B. failed the tenth grade. ECF No. 1 at 17.

         In the Summer of 2014. the Bartons took their son to the Basics Group Practice, LLC ("Basics Group1* or '"Basics") to be tested for special education. ALJ at 13. The Basics Group evaluated T.B. on May 6, 8, and 13, 2014. Id. 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. ALJ at 13; ECF No. 1 at 20. Over the Summer of 2014, 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. ALJ at 13. Mr. Barton sent emails to PGCPS, "making conflicting claims" as to why T.B. was not attending school. Id. "The emails variously claimed that the Student was not attending due to noise in the school, asthma, or to panic attacks." Id.

         On January 13, 2015, the Bartons filed a due process complaint against Prince George's County Public Schools. ECF No. 1 at 22; Due Process Compl. An IEP team meeting was convened on January 26, 2015, at which point PGCPS agreed to conduct further academic and social/emotional evaluations with T.B. ALJ at 14. School Psychologist Vincent Tepe performed 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. 1 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 offered to T.B., and that the Transition Program at Wise High School ("Transition Program'") would be an appropriate placement. ALJ 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. ALJ 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)[10] 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.
(3) Whether the Parents are entitled to reimbursement for an Independent Educational Evaluation (IEE) of the Student conducted in May 2014.

         ALJ at 3. The ALJ admitted a total of 97 exhibits from both parties - including student attendance information, progress reports, performance data, and correspondence dating back to 2003. ALJ at 3-7. He heard testimony from 21 witnesses, including 12 of T.B.'s teachers from middle school and high school, T.B.'s parents, and PGCPS guidance counselors and school psychologists. Id. at 7-8. The ALJ made 67 factual findings by a preponderance of evidence. Id. at 8-16. The ALJ rendered his 46-page decision on September 16, 2015.

         With respect to the first issue, the ALJ found that a two-year statute of limitations 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 ALJ found that no misrepresentation or withholding of information occurred that would "toll or extend the statute of limitations." ALJ at 22-23.[11]

         As to the second issue, the ALJ found that "it is clear that the Parent made, within the statute of limitations period, repeated requests for evaluation of the Student." ALJ 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 DiBuo ex rel. DiBuo v. Ed. of Educ. of Worcester Cty., 309 F.3d 184, 190 (4th Cir. 2002)) (quotations marks added). The ALJ explained, "[m]y reasoning is simple: the entirety of the record before me establishes that the Student simply does not want to go to school." Id. Effectively, the ALJ concluded that even if T.B. 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 ALJ did not credit Plaintiffs' experts and noted that T.B.'s diagnosis conflicted 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, " ALJ 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, " ALJ at 14; and Dr. Stephan Silverman, who testified for Plaintiffs, concluded that T.B.'s diagnosis was "situational anxiety and depression, " ALJ at 38. The ALJ noted the conflicting diagnoses of Plaintiffs' experts, stating that it "lead[s] me to question the credibility of both." Id. at 40. Additionally, the ALJ afforded little weight to Dr. Silverman's testimony, as Dr. Silverman "met with the Student only once and only briefly, " "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 ALJ found the same deficiencies to be true with Plaintiffs' other expert, Dr. McLaughlin. ALJ at 40-41.

         Additionally, the ALJ 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 ALJ did not credit T.B.'s father, as "the Father's testimony on almost every factual matter was unreliable and subject to frequent revision." ALJ at 35. For example, Mr. Barton testified at the hearing that T.B. stopped attending Central because of bullying. Id. But later Mr. Barton said bullying was not an issue at Central. Id. Thus, the ALJ found that Plaintiffs' claims did not establish a "denial of FAPE." Id. at 36.

         Regarding the third issue, the ALJ found that the Parents were not entitled to reimbursement for the Independent Educational Evaluation (IEE). Id. The ALJ 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." Id. at 28. He noted that the examiner, Whitney Hobson, was a doctoral psychology intern and not a licensed psychologist. Id. 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. Id. at 28-29. Therefore, the ALJ concluded that the agency '"demonstrated' a failure to show that the IEE meets 'agency criteria/" and thus the Parents were not entitled to reimbursement. Id. at 29.

         In sum, the ALJ 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." ALJ at 46. The ALJ therefore found that "the Student is not entitled to compensatory education at public expense." Id. Finally, the ALJ denied reimbursement for the IEE. Id. The Bartons timely filed the instant Complaint in this Court on December 23, 2015 and appeal the ALJ's Decision pursuant to 20 U.S.C. § 1415(i)(2). ECF No. 1.


         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 U.S.C. § 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, " § 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 rel. DM v. Sch. Dist. of Greenville Cnty.,303 F.3d 523, 530-31 (4th Cir. 2002); Wagner v. Bd of Educ. of Montgomery Cty.,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. Arlington Cty. 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 "ALFs 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 Justin G. v. Bd. of Educ., 148 F.Supp.2d 576, 588 (D. Md. 2001)); see also Jana K. ex rel. Tim K. v. Annville-Cleona Sch. Dist.,39 ...

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