L.D. v. Anne Arundel County Public Schools

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Now pending before the court are the parties' motions for summary judgment and the plaintiffs' motion to supplement the record. For the reasons stated below, the court will deny both motions for summary judgment, deny the plaintiffs' motion to supplement as moot, and remand the case to the administrative law judge for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         The parties ask this court to decide whether the plaintiffs are entitled to a publicly funded independent educational evaluation ("BEE") under the Individuals with Disabilities Education Act ("IDEA"). L.D. attends Anne Arundel County Public Schools ("AACPS"). According to the findings of fact by the administrative law judge ("ALJ"), which the parties do not dispute, ^[1]the basic facts are as follows: L.D. receives special education services pursuant to an individualized education program ("IEP"); her diagnoses include autism spectrum disorder, chromosomal anomalies, attention deficit hyperactivity disorder, and some speech and language disorders. Administrative Hearing Decision (February 6, 2018) at 4-5, ECF 22. L.D. was in seventh grade during the 2016-2017 school year. Id. at 5. In December 2016, in preparation for a reevaluation of L.D. as part of a triennial review, ^[2] the IEP team reviewed materials related to L.D.'s progress and determined, with the participation and consent of L.D. 's mother, "the need for further assessment in the following areas: written expression, pragmatic language, fine/visual, sensorimotor, and social/emotional development." Id. From December 2016 to February 2017, the school conducted evaluations of written expression, social and emotional development, and pragmatic language. Id. at 5-8. On March 15, 2017, the IEP team, including the parents, "agreed to conduct additional assessments in the areas of basic reading skills, reading comprehension, math calculation, math reasoning, and sensorimotor." Id. at 8. In March 2017, the school conducted an evaluation of L.D.'s performance in reading and math. Id. at 8-9.

         On May 5, 2017, the IEP team, including L.D.'s parents, conducted a comprehensive evaluation review, including by reviewing L.D.'s performance in assignments and standardized tests; her psychological, academic, communication, and occupational therapy assessments; a diagnosis of dysgraphia and recommendation from Anthony B. Wolff, Ph.D.; and her academic achievement. Id. at 9. L.D.'s parents disagreed with the IEP team's conclusion that L.D. did not have a specific learning disability. Id. at 10. The parents later requested IEEs in the areas of psychology, academics, and speech language, and requested that the school pay for the evaluations. Id. at 11. The school requested a due process hearing to show the evaluations it conducted were appropriate and that the parents were not entitled to publicly funded IEEs. Id.

         The ALJ limited the hearing to "whether the AACPS evaluations in the areas of reading, writing, math, pragmatic language, and social emotional development were appropriate" and if not "whether the Parents have a right to independent educational evaluations at public expense." Id. at 11, This limitation was contested by the parents, who argued that they should have "the opportunity to address the issue of suspected [learning] disability that AACPS failed to assess." Motion to Recuse at 3 (November 22, 2017), Administrative File, ECF 22.^[3]

         At the hearing, the parents presented expert testimony that the evaluations were inadequate. Ms. Roundtree, an expert in special education and reading, testified that the AACPS assessments did not provide enough information regarding pseudoword decoding. Administrative Hearing Decision at 15-16. Dr. Culotta, an expert in psychological assessment and students with learning disabilities, testified that the AACPS assessments did not consider L.D.'s extensive history, the data required further analysis, and the assessment was unduly narrow. Id. at 16. Ms. Robinette, an expert in speech language therapy and assessment, stated that the assessment of L.D.'s pragmatics was not appropriate because L.D.'s "pragmatic profile is so complex" and the assessment did not include articulation. Id. at 17. The ALJ excluded certain testimony regarding the alleged failure to test L.D. for areas relevant to her suspected learning disability and the type of information considered by the IEP team as outside the scope of the case.^[4]

         The ALJ found that the evaluations in the areas of reading, math, written expression, pragmatic language, and social emotional development were appropriate. She noted that "[t]he only criticism offered by the Parents' experts was that the assessments should have been broader and should have included more information regarding the Student's history," id. at 20, but "what each expert ignored was that [the AACPS] assessments were purposely limited in scope by the IEP team and its need for additional information," id at \l. L.D., by and through her parents and next friends, M.D., and S.D. (the "parents") then filed this complaint against defendants AACPS, George Arlotto, and Bobbi Pedrick (collectively, "AACPS").^[5]

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (emphases added). "A dispute is genuine if 'a reasonable jury could return a verdict for the nonmoving party.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Anderson, 477 U.S. at 247-48. The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam) (citation and quotation omitted), and draw all reasonable inferences in that party's favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the court must "prevent factually unsupported claims and defenses from proceeding to trial." Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

         "In light of the IDEA's manifest preference for local control of schools, we apply a 'modified de novo review' to a state ALJ's decision in an IDEA case, 'giving due weight to underlying administrative proceedings.' We determine independently whether the school district violated the IDEA but consider the ALJ's factual findings to be 'prima facie correct.' Performed correctly, this sort of review ensures that courts do not 'substitute their own notions of sound educational policy for those of the school authorities which they review.'" T.B., Jr. by and through T.B., Sr. v. Prince George 's Cnty. Bd. of Educ, 897 F.3d 566, 572 (4th Cir. 2018) (citations omitted).

         DISCUSSION

         Statutory Framework: The IDEA seeks "to ensure that all children with disabilities have available to them a free appropriate public education [referred to as 'TAPE"]. .. designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). To that end, the statute requires state or local agencies receiving certain federal funds to "establish and maintain procedures... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies." 20 U.S.C. § 1415(a).

         Schools have the obligation, known as Child Find, to identify children with disabilities who are in need of special education and related services. T.B., 897 F.3d at 571-72 (citing 20 U.S.C. § 1412(a)(3)(A)). Each eligible child should receive an "individualized education program" ("IEP") which includes "a statement of the child's present levels of academic achievement and functional performance," "a statement of measurable annual goals," and "a statement of the special education and related services and supplementary aids and services . .. to be provided to the child." Id. at 571 (quoting 20 U.S.C. § 1414(d)(1)(A)(i)). The EEP must be "reasonably ...