Redacted Response To Motion To Dismiss - Special Education Md

OFFICE OF ADMINISTRATIVE HEARINGS 11101 Gilroy Road Hunt Valley, MD 21031

OAH NO.:

vs. MONTGOMERY COUNTY PUBLIC SCHOOLS

RESPONSE TO MOTION TO DISMISS FOR FAILURE TO SEEK A DUE PROCESS HEARING WITHIN THE TIME LIMITS PERMITTED COMES NOW attorney,

, parent of st udent

by and through their

PATRICK HOOVER LAW OFFICES, hereby responds to Montgom ery

County Public Schools (“MCPS”) m otion to dism iss for failure to seek a due process hearing within the time limits permitted by the Individuals with Disabilities Education Act (“IDEA”), and for reasons, state the following: BACKGROUND:

1. On October 21, 2009, MCPS filed a motion to dismiss for failure to seek a due process hearing within the time limits permitted by the IDEA. 2. MCPS’s motion states that the alleged actions that form the basis of the Mother’s hearing complaint occurred from December 2006 to June 2007. 3. MCPS’s argument assumes that the Mother knew or should have known by June 2007 that she had more than a mere suspicion that MCPS was not providing FAPE. 4. However, MCPS does not provide factual support demonstrating when the Mother had a basis to know or should know that she had a reason to file a complaint.

a. MCPS only provided this Office information showing that the Mother had merely expressed “concerns” and “dissatisfaction” about the IEPs. See MCPS’ Motion to Dismiss , Numbers 7, 9, and 10. i. MCPS did not provide information demonstrating that the Mother relied on concrete data to know, rather than merely question, that her son was not receiving FAPE. b. MCPS only provided this Office information showing that the Mother had repeatedly requested the base data determining Plaintiff’s progress, but that MCPS never provided her that raw data measuring her son’s progress. i. MCPS did not provide Mother the raw data for the Mother to know there was a factual basis to her concerns that her son was not receiving FAPE. 1. MCPS actually destroyed the records. See Exhibit A, email between MCPS and Mother describing that point sheets and other descriptors – the raw data upon which to measure a student’s progress – was purged from the student’s records. ii. In short, MCPS fails to argue as a matter of law that Mother had a factual basis upon which to know that her son was not receiving FAPE. 5. MCPS’s argument makes a presumption that the Mother knew or should have known by June 2007 that she had a legitimate complaint against MCPS for not providing FAPE. 6. However, Mother did not have any critical facts indicating that her son had been hurt until after he attended

starting in September 2007.

a. Mother did not have the critical facts or logs showing that Plaintiff was not improving. b. On Plaintiff’s IEP’s, MCPS claimed that Plaintiff was achieving goals, but MCPS did not provide any data to the Mother. Instead, MCPS destroyed all the raw data that supported MCPS’s claim that Plaintiff was making progress. See Exhibit A. ISSUE: 7. At the heart of Defendant’s motion to dismiss lies significantly important, unanswered questions: a. At what point in time does a parent’s suspicions and concerns raise to the level of “know or should have known” that FAPE was not provided? b. How should the Court determine which date is the basis of the FAPE complaint, such as an event(s) or occurrence(s), in order to start the two-year Statute of Limitations? c. Does the basis of the parent’s complaint from a parent’s own informal observations, or is the basis of the parent’s complaint supposed to have external data provided by another 3rd party source? RULE AND APPLICATION: Parents’ Possession of Critical Facts Determines When a Parent “Knows or Should Know” A Complaint exists. 8. In Jarron Draper v. Atlanta Independent School System, (Draper v. Atlanta Indep. Sch. Dist., No. 07-11777 (11th Cir. Mar. 6, 2008), citing R.R. v Fairfax County Sch. Bd., 338

F.3d 325, 334 (4th Cir. 2003) and K.P. v. Juzwic, 891 F. Supp. 703, 716 (D.Conn, 1995)), the court determined that IDEA claims accrue when the parents know of the injury/event that is the basis of their claim; and that in order to know, the parents must be in possession of “critical facts” which indicate that the child has been hurt and the defendants are responsible for this injury. a. The court found that there was “Substantial evidence support(ing) the finding that, until 2003, Draper’s family did not know enough to realize that Draper had been injured by his misdiagnosis and misplacement by the School System.” b. The court stated that they could not conclude, as a matter of law, that Draper’s family should be blamed for not being experts about learning disabilities. c. Thus, the parent must be in possession of critical facts in order for the parent to know that FAPE is not being provided. 9. In this instant case, it is clear that, like Draper, the Mother had suspicions, but had no factual evidence to support her suspicions that Plaintiff was not receiving FAPE. See Exhibit A, and MCPS’ Motion to Dismiss, Numbers 7, 9, and 10. 10. Notwithstanding her concerns, MCPS must not be allowed to argue that, by voicing those concerns early on, Mother somehow triggered the running of the two year statute of limitations, when in reality, she did no more than express (as countless parents do throughout the country) her legitimate but as-of-yet unsubstantiated concerns at that time.

a. Without the critical facts and evidence, as per Draper, the Mother’s suspicions could not have possibly risen to the level of “know or should know” required by IDEA to determine when the Statute of Limitations should begin. 11. In Md. Education Code Ann. §8-413(d)(4)(i), the statute of limitations does not apply to a parent who is prevented from requesting a due process hearing due to (s)pecific misrepresentations made by the public agency that it had resolved the problem that formed the basis of the due process complaint. a. Without the critical facts and evidence, as per §8-413(d)(4)(i), the Mother’s suspicions could not have possibly risen to the level of “know or should know” as MCPS misrepresented in Plaintiff’s IEP’s that he was progressing. b. By destroying the critical facts and evidence, as per §8-413(d)(4)(i), the misrepresentations made by MCPS led the Mother to believe that she had no basis for a due process complaint. 12. In Somoza v. New York City Dept. Of Educ., 475 F. Supp. 2d at 385, 386, 538 F.3d 106 (2nd Cir. 2008) the Circuit Court determined that plaintiff’s mother knew or should have known about the alleged denials of a FAPE at the point at which the plaintiff’s mother “[first] observed her daughter’s rapid improvement in the Blau Program and that Blau, an expert in the file of special education, expressed the opinion that [plaintiff] has not previously received a FAPE.” a. In Somoza, the Circuit Court determined that the mother’s point of “knowing” that a claim existed under IDEA is when a 3rd party provided the mother facts to show that the previous public placement denied the plaintiff FAPE.

b. In Somoza, the mother’s point of knowing was NOT simply when the mother had dissatisfactions or concerns. c. Thus, like Somoza, the Mother had no point of knowing that FAPE had been denied to Plaintiff son until Mother was provided evidence by a 3rd party demonstrating that her son had been denied FAPE by MCPS. d. Only when evidence of improvement existed to show that the public school program denied FAPE did Plaintiff know or should have known that the public school program denied FAPE. i. Only when Mother and improvement in the

observed Plaintiff’s rapid did Mother know or should have known

that MCPS denied FAPE to Plaintiff. ii. The facts providing the knowledge would have been provided to Mother, at the earliest, in September 2007 when Plaintiff was attending . iii. The facts providing the knowledge would NOT have been provided to Mother in June 2007 as Defendant would argue. Hearing Officers Make The Determination When A Parent Knows/Should Have Known. 13. The Federal Register provides this guidance in Vol. 71, No 156, (Mon, Aug 14, 2008, Rules and Regulations, pg 46706): a. “hearing officers will have to make determinations, on a case-by-case basis, of factors affecting whether the parent ‘knew or should have known’ about the action that is the basis of the complaint.

b. “It was declined to add additional exceptions other than that parent had information about procedures withheld due to lack of access or language barrier. 14. Guidance is also provided in Corine Anthony v. District of Columbia, 463 F. Supp. 2d 37, 43, 2006 U.S. Dist. LEXIS 86278, at 18: “(T)he hearing officer should determine in the first instance when plaintiff’s claims accrued, taking evidence … as to when [D.A.’s mother] knew or had reason to know of the injuries that are the basis for plaintiffs’ claims.” CONCLUSION 15. Thus, based upon settled legal precedent and statutory authority and guidance, the Statute of Limitations in IDEA is based upon when the Mother “knows or should know” about the action forming the basis of Plaintiff’s complaint. 20 U.S.C. §1415(b)(6)(B) and Md. Education Code Ann. §8-413(d)(3). 16. When the Mother “knows or should know” is based upon the factors in play, on a case-by-case basis, determining when the Mother should know. a. See Jarron Draper v. Atlanta Independent School System, (Draper v. Atlanta Indep. Sch. Dist., No. 07-11777 (11th Cir. Mar. 6, 2008), citing R.R. v Fairfax County Sch. Bd., 338 F.3d 325, 334 (4th Cir. 2003) and K.P. v. Juzwic, 891 F. Supp. 703, 716 (D.Conn, 1995)). 17. When the Mother “knows or should know” is based upon possession of “critical facts” which indicate that Plaintiff has been hurt and the Defendants are responsible for this injury, see Draper and Somoza.

18. Based on the fact patterns presented in Draper, R.R., K.P., and Somoza, Mother knew or should have known at the time Mother had facts to show that it was possible that FAPE had been denied to Plaintiff. 19. Based on the fact patterns presented in Draper, R.R., K.P., and Somoza, Mother would have known that she could pursue a complaint at the earliest, in September 2007 when Plaintiff began attending 20. In Maryland, the Statute of Limitations does not apply to Mother if she was presented with specific misrepresentations by Defendant that it had resolved the problem, such as misrepresenting progress on IEP’s while destroying the raw data that provided the basis for the representation. See Md. Education Code Ann. §8-413(d)(4)(i). 21. Based upon the facts presented by Defendant in its Motion to Dismiss and based upon Exhibit A demonstrating that Mother had been provided misrepresentations in Plaintiff’s IEP that Defendant agency had resolved the problem, under Md. Education Code Ann. §8-413(d)(4)(i), no statute of limitations should be applied to Mother’s complaint. 22. Thus there is enough evidence present on the record for an ALJ to determine that: a. the Statute of Limitations does not apply until September, 2007; b. the Statute of Limitations does not apply at all; or c. a hearing must be convened in order for the ALJ to determine, based upon the factors present, when the Mother knew or should have known that FAPE was denied providing the basis for the complaint; and thus, when the Statute of Limitations was to start.

WHEREFORE, Plaintiff requests Defendant’s motion to dismiss for failure to seek a due process hearing within the time limits permitted by the Individuals with Disabilities Education Act be DENIED. Respectfully submitted, PATRICK HOOVER LAW OFFICES

Patrick J. Hoover 401 N. Washington Street, Ste 900 Rockville, MD 20850 (301) 424-5777

CERTIFICATE OF SERVICE A copy of the foregoing Response to Motion to Dismiss For Failure To Seek A Due Process Hearing was emailed, faxed and mailed, first class, postage paid, on November 6, 2009 to: Jeffrey Krew, Esq., 4785 Dorsey Hall Rd, Ste 120, Ellicott City, MD 21042, email [email protected].

Patrick

Hoover