United States District Court, D. Maryland, Southern Division
T.B., Jr. ex rel. T.B., Sr. and F.B. Plaintiffs,
PRINCE GEORGE'S COUNTY BOARD OF EDUCATION, et al Defendants.
J. Hazel United States District Judge.
appeal the decision in T.B., Jr. v. Prince George's
County Public Schools, OAH No.: MSDE-PGEO-OT-15-01496
(2015) 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. 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.
T.B. 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,
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.
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 concerning T.B. ALJ at 9; ECF No. 1 at 10.
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. The team agreed to schedule a
parent-teacher conference for January 2013. Id. at
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.
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,  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."
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. 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.
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
(2) Whether the Student was denied a free and appropriate
public education (FAPE) 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.
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.
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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 ...