MD Code, Education, § 8-413 Page 1

West's Annotated Code of Maryland Currentness

Education
Division II. Elementary and Secondary Education [Titles 2-9]
Title 8. Special Programs for Exceptional Children (Refs & Annos)
Subtitle 4. Children with Disabilities (Refs & Annos)
§ 8-413. Review of placement decisions

(a)(1) In this section the following words have the meanings indicated.

(2) “Administrative law judge” means an individual serving in the role of an impartial hearing officer as re-
quired under the federal Individuals with Disabilities Education Act. [FN1]

(3) “Due process complaint” means a written request for a due process hearing filed by the parent of a child
with a disability, as defined in § 8-412 of this subtitle, or a public agency, to resolve a dispute over the identi-
fication, evaluation, educational placement, or the provision of free appropriate public education, in accord-
ance with federal law.

(4) “Federal law” means the Individuals with Disabilities Education Act and regulations adopted under that
Act.

(5) “Parent” means:

(i) A child's natural or adoptive parents, a guardian, or a person acting as a parent of a child, such as a relat-
ive or a stepparent with whom the child lives;

(ii) A foster parent with whom a child lives if the foster parent has been granted limited guardianship for
educational decision making purposes by the court that placed the child in foster care;

(iii) Another individual who is legally responsible for the child's welfare; or

(iv) A parent surrogate appointed in accordance with § 8-412 of this subtitle.

(6) “Public agency” means the State Department of Education, a local school system, or any State agency re-
sponsible for providing education to students with disabilities, including the Maryland School for the Blind
and the Maryland School for the Deaf.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 2

(7) “Resolution session” means a preliminary meeting the public agency shall convene with the child's parent
in accordance with federal law.

(b)(1) The parent of a child with a disability or a public agency may formally request mediation at any time to
resolve any disagreement between the parties regarding the child's special education services or program.

(2) If a parent files a due process complaint against a public agency concerning the identification, evaluation,
or educational placement of a student or the provision of a free appropriate public education, any party shall
be given the opportunity to request mediation of those aspects of the decision subject to dispute.

(3) The request for mediation may not be used to deny or delay the parent's rights under federal law or this
section.

(4) Any party to the mediation has the right to be accompanied and advised by counsel.

(5) Mediation shall be conducted in accordance with departmental regulations.

(6) A mediation agreement shall be in writing and is enforceable in a court of competent jurisdiction in ac-
cordance with federal law.

(c)(1) Before conducting a due process hearing in accordance with subsection (d) of this section, the public
agency shall provide the parent with an opportunity to resolve the due process complaint at a resolution session
in accordance with federal law.

(2) A resolution session agreement shall be in writing and enforceable in a court of competent jurisdiction in
accordance with federal law.

(3) A written resolution agreement may be voided by the parties within 3 business days of execution in ac-
cordance with federal law.

(d)(1) A parent of a child with disabilities shall file a due process complaint with the Office of Administrative
Hearings and the public agency.

(2) A public agency shall file a due process complaint with the Office of Administrative Hearings and the par-
ent.

(3) Except as provided in paragraph (4) of this subsection, the complaining party shall file a due process com-
plaint within 2 years of the date the party knew or should have known about the action that forms the basis of
the due process complaint.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 3

(4) The statute of limitations described under paragraph (3) of this subsection does not apply to a parent who
is prevented from requesting a due process hearing due to:

(i) Specific misrepresentations made by the public agency that it had resolved the problem that formed the
basis of the due process complaint; or

(ii) The public agency's withholding of information that the public agency was required to provide to the
parent.

(5) In order to conduct a hearing, the Office of Administrative Hearings shall appoint an administrative law
judge who:

(i) Is an administrative law judge in the Office of Administrative Hearings; and

(ii) Meets the requirements of a due process hearing officer in accordance with federal law.

(6) Unless the parent and the public agency otherwise agree, during the course of any administrative or judi-
cial proceeding, the child must remain in the last approved placement in accordance with federal law.

(7) If the hearing concerns the initial admission of a child into a public school, the child with the consent of
the parent must be placed in the public school program until the proceedings have been completed.

(e)(1) The administrative law judge appointed under subsection (d) of this section shall conduct the hearing in
accordance with federal law, Title 10 of the State Government Article, and the Office of Administrative Hear-
ings Rules of Administrative Procedure, and may:

(i) After review of the educational records of the child, dismiss any request for review which does not relate
to a matter described in subsection (d)(1) of this section;

(ii) Require the parties to attend a prehearing conference prior to the due process hearing;

(iii) Hear any testimony that it considers relevant;

(iv) Require an independent evaluation or call an impartial expert witness in the diagnosis or education of
students with disabilities whose testimony shall be on the record and whose costs shall be paid by the State
Education Agency; and

(v) Administer oaths to witnesses at the hearing on request of a party.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 4

(2) The provisions of the Family Educational Rights and Privacy Act [FN2] and 34 C.F.R. Part 99 shall apply
to school records sought by the impartial expert witness.

(3) If the parties cannot agree on an impartial expert witness, each party shall be given the opportunity to sub-
mit a list of possible experts, and the administrative law judge shall decide which impartial expert witness to
call.

(f)(1) Any party to the hearing has the right to:

(i) Be accompanied and be advised by counsel and individuals with special knowledge or training with re-
spect to the problems of children with disabilities;

(ii) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(iii) Prohibit the introduction of any evidence at the hearing which has not been disclosed to all parties at
least 5 days before the hearing;

(iv) Obtain a written or electronic verbatim record of the hearing; and

(v) Obtain written findings of fact and decisions.

(2) Parents involved in the hearings must be given the right to:

(i) Have the child who is the subject of the hearing present; and

(ii) Open the hearing to the public.

(g)(1) The decision of the administrative law judge shall be made on substantive grounds based on the determin-
ation of whether the child received a free appropriate public education.

(2) In matters alleging a procedural violation, an administrative law judge may find that the child did not re-
ceive a free appropriate public education only if the procedural inadequacies:

(i) Impeded the child's right to a free appropriate public education;

(ii) Significantly impeded the parents' opportunity to participate in the educational decision making process
regarding the provision of a free appropriate public education to the parents' child; or

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 5

(iii) Caused a deprivation of educational benefits.

(h) The hearing shall be held and a written decision shall be issued within the time periods established by federal
law. The administrative law judge may grant a specific extension of time at the request of either party.

(i) If, at the time of the due process complaint, the child who is the subject of the hearing is not enrolled and at-
tending an approved educational program or, if the due process complaint is over the placement or manifestation
determination of a child, due to a violation of the rules of conduct, an expedited hearing shall occur within 20
school days of the date the hearing is requested and shall result in a decision within 10 school days of the hear-
ing.

(j) Within 120 calendar days of the issuance of the hearing decision, any party to the hearing may file an appeal
from a final decision of the Office of Administrative Hearings to the federal District Court for Maryland or to
the circuit court for the county in which the child resides.

(k)(1) A public agency is not required to pay for the cost of education, including special education and related
services, for a child with a disability at a private or nonpublic school if the public agency made a free appropri-
ate public education available to the child and the parent of the child elected to place the child in such a school
or facility.

(2) If the parent of a child with a disability, who previously received special education and related services un-
der the authority of a public agency, enrolls the child in a nonpublic school or facility without the consent of
or referral by the public agency, an administrative law judge or a court may require the public agency to reim-
burse the parent for the costs of the placement enrollment if the administrative law judge or court determines
that the public agency had not made a free appropriate public education available to the child in a timely man-
ner prior to that enrollment.

(3) Reimbursement may be reduced or denied by the administrative law judge or court in accordance with fed-
eral law.

CREDIT(S)

Acts 1978, c. 22, § 2; Acts 1978, c. 932; Acts 1980, c. 862; Acts 1981, c. 196, 447; Acts 1982, c. 820, § 3; Acts
1982, c. 831; Acts 1984, c. 255; Acts 1988, c. 717; Acts 1994, c. 367, § 1, eff. July 1, 1994; renumbered by Acts
1996, c. 10, § 16, eff. April 9, 1996; Acts 1996, c. 190, § 1, eff. July 1, 1996; Acts 1996, c. 328, § 1, eff. Oct. 1,
1996; Acts 2001, c. 29, § 6, eff. April 10, 2001; Acts 2001, c. 61, § 1, eff. July 1, 2001. Amended by Acts 2006,
c. 44, § 6, eff. April 8, 2006; Acts 2006, c. 233, § 1, eff. July 1, 2006.

Formerly Art. 77, § 100A.

[FN1] Pub.L. 91-230, Title VI, Apr. 13, 1970, 84 Stat. 175 to 188, codified at 20 USCA § 1400 et seq.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 6

[FN2] Pub.L. 93-380, Title V, § 513, Aug. 21, 1974, 88 Stat. 571

HISTORICAL AND STATUTORY NOTES

2006 Legislation

Acts 2006, c. 44, § 6, in subsec. (g)(2)(ii), corrected spelling.

Acts 2006, c. 233, § 2, provides:

“SECTION 2. AND BE IT FURTHER ENACTED, That all laws or parts of laws, public general or public local,
inconsistent with this Act, are repealed to the extent of the inconsistency.”

CROSS REFERENCES

Attendance of witnesses from without a state, see Courts and Judicial Proceedings, § 9-301 et seq.

LIBRARY REFERENCES

Schools 155.5(1).
Westlaw Key Number Search: 345k155.5(1).
C.J.S. Schools and School Districts § 704.

RESEARCH REFERENCES

ALR Library

23 ALR, Federal 2nd Series 553, Statute of Limitations Applicable To, and Accrual Of, Actions for Attorney's
Fees Brought Under Individuals With Disabilities Education Act, S615(i)(3)(B), as Amended, 20 U.S.C.A....

152 ALR, Federal 485, Obligation of Public Educational Agencies, Under Individuals With Disabilities Educa-
tion Act (20 U.S.C.A. 1400 et seq.), to Pay Tuition Costs for Students Unilaterally Placed in Private Schools-
-Post-Burlington...

107 ALR, Federal 758, What Statute of Limitations Applies to Civil Actions Brought in Federal Court Under
Education of the Handicapped Act (20 U.S.C.A. §§ 1400 et seq.) to Challenge Findings and Decisions of State
Administrative...

12 ALR 2nd 695, May Federal Court, Acquiring Jurisdiction Because of Federal Question But Deciding Such
Question Adversely to Party Invoking Jurisdiction, Decide Non-Federal Questions.

Encyclopedias

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 7

Am. Jur. 2d Schools § 353, Compensatory Education.

Maryland Law Encyclopedia Alternative Dispute Res § 17, Other Particular Provisions.

UNITED STATES SUPREME COURT

Disabled students,

Reimbursement,
Education, learning disabled students, free and appropriate public education, reimbursement of private
school tuition, lack of prior special education services through public schools, see Forest Grove School
Dist. v. T.A., 2009, 129 S.Ct. 2484, 174 L.Ed.2d 168.
Learning disabled students, private school placement, reimbursement, see Florence County School Dist.
Four v. Carter By and Through Carter, U.S.S.C.1993, 114 S.Ct. 361, 510 U.S. 7, 126 L.Ed.2d 284.

Medical care,
School districts, disabled students, continuous nursing services to quadriplegic student as related ser-
vices under Individuals with Disabilities Education Act, medical services exemption, see Cedar Rapids
Community School Dist. v. Garret F. ex rel. Charlene F., U.S.Iowa1999, 119 S.Ct. 992, 526 U.S. 66,
161 A.L.R. Fed. 683, 143 L.Ed.2d 154.

Deaf students,

Services provided,
Establishment clause, private schools, deaf students, sign-language interpreters, neutral government
programs, see Zobrest v. Catalina Foothills School Dist., U.S.Ariz.1993, 113 S.Ct. 2462, 509 U.S. 1,
125 L.Ed.2d 1.
Private schools, deaf students, sign-language interpreters, neutral government programs, see Zobrest v.
Catalina Foothills School Dist., U.S.Ariz.1993, 113 S.Ct. 2462, 509 U.S. 1, 125 L.Ed.2d 1.

NOTES OF DECISIONS

Attorney fees, judicial review 20

Burden of proof, judicial review 16
Civil rights action 8
Construction with federal procedure 2
Costs and attorney fees, judicial review 20
Due process 1
Enforcement 7
Evidence, judicial review 17
Federal jurisdiction 9
Findings, judicial review 18
Immunity 3
Impartiality of administrative judge 6
Judicial review 10-20
Judicial review - In general 10

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 8

Judicial review - Burden of proof 16

Judicial review - Costs and attorney fees 20
Judicial review - Evidence 17
Judicial review - Findings 18
Judicial review - Parties 14
Judicial review - Pleadings 13
Judicial review - Remand 19
Judicial review - Standard 15
Judicial review - Standing 12
Judicial review - Statute of limitations 11
Juvenile court authority 5
Notice of procedures 4
Parties, judicial review 14
Pleadings, judicial review 13
Remand, judicial review 19
Standard, judicial review 15
Standing, judicial review 12
Statute of limitations, judicial review 11
Tuition reimbursement 8.5

1. Due process

Assuming that state's use of subject matter review, process by which administrative law judges not involved in
particular adjudication review and comment on drafts of decision, could be imputed to school board, use of pro-
cess did not violate rights of learning disabled student under Individuals with Disabilities Education Act (IDEA)
or Due Process Clause of United States Constitution. U.S.C.A. Const.Amends. 5, 14; Individuals with Disabilit-
ies Education Act, § 601 et seq., 20 U.S.C.A. § 1400 et seq. Jones v. Washington County Bd. of Educ., 1998, 15
F.Supp.2d 783. Schools 155.5(1)

2. Construction with federal procedure

Individuals with Disabilities Education Act (IDEA) does not incorporate provisions of Maryland Code, and thus
does not confer upon a plaintiff substantive federal right to local review hearing. Individuals with Disabilities
Education Act, § 601 et seq., 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-413(c). Fritschle v. Andes,
1998, 25 F.Supp.2d 699, reconsideration denied 32 F.Supp.2d 314. Schools 155.5(1)

Rehabilitation Act does not provide cause of action based upon denial of free appropriate public education
(FAPE). Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794. Carter by Ward v. Prince George's County Public
Schools, 1998, 23 F.Supp.2d 585. Schools 148(2.1)

3. Immunity

Claim that Maryland's current system for training administrative law judges (ALJs) violated the state law re-
quirement that the hearings be conducted by an ALJ who “has received and continues to receive specialized

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 9

training in matters significant to the educational review of students with disabilities” was a claim against state
that was protected by the Eleventh Amendment. U.S.C.A. Const.Amend. 11; Md.Code, Education, §
8-413(c)(2)(ii). Carnwarth v. Board of Educ. of Anne Arundel County, 1998, 33 F.Supp.2d 431. Federal Courts
271

4. Notice of procedures

“Procedural safeguards booklet” given by school system to parents of disabled child, which indicated that hear-
ing would be conducted according to applicable requirements of federal and state law but which had not been
updated to reflect notice requirements of either Maryland law or Individuals with Disabilities Education Act
(IDEA) did not fulfill school system's duty to notify parents of procedures available for reimbursement of
private school tuition; thus, notice provisions of IDEA and Maryland law did not apply to parents, even if they
had actual notice of the requirements because of their counsel's knowledge. Individuals with Disabilities Educa-
tion Act, § 615(d)(2)(H), as amended, 20 U.S.C.A. § 1415(d)(2)(H); Md.Code, Education, § 8-413(i). Carnwarth
v. Board of Educ. of Anne Arundel County, 1998, 33 F.Supp.2d 431. Schools 155.5(1)

School boards must provide parents with advance written notice of all procedural safeguards available when
boards propose to review child's individualized education program (IEP). Individuals with Disabilities Education
Act, § 615(b), as amended, 20 U.S.C.A. § 1415(b). Reusch v. Fountain, 1994, 872 F.Supp. 1421, supplemented
1994 WL 794754. Schools 155.5(1)

School district's notice to parents of issues to be discussed at annual review of disabled student's individualized
education program (IEP) violated IDEA by not informing parents of their right to request extended school year
(ESY) services and that ESY was to be considered at each and every annual review meeting. Individuals with
Disabilities Education Act, §§ 601(c), 615(b)(1), as amended, 20 U.S.C.A. §§ 1400(c), 1415(b)(1); Md.Code,
Education, § 8-402; 34 C.F.R. §§ 300.382, 300.505; Md.Regs. Code title 13A, §§ 05.01.02(B)(7), 05.01.04(H),
05.01.09(G), (G)(1)(d). Reusch v. Fountain, 1994, 872 F.Supp. 1421, supplemented 1994 WL 794754. Schools
155.5(1)

5. Juvenile court authority

Provisions of Juvenile Causes Act prescribing possible dispositions of children subject to Act and means for
such dispositions do not authorize juvenile court to order school system to provide educational services. Code,
Courts and Judicial Proceedings, §§ 3-820, 3-820(b), (c)(1)(ii). In re Roger S., 1995, 658 A.2d 696, 338 Md. 385
. Infants 221

Provision of Juvenile Causes Act allowing juvenile court to make “appropriate order directing, restraining, or
otherwise controlling” conduct of person properly before it simply supplements court's authority with respect to
those matters within its purview under other provisions of Act; it does not authorize court to order school system
to provide educational services. Code, Courts and Judicial Proceedings, § 3-827. In re Roger S., 1995, 658 A.2d
696, 338 Md. 385. Infants 221

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 10

Custody and guardianship are only concerns that juvenile court is authorized to address under provision of Ju-
venile Causes Act prescribing means for dispositions of children subject to Act. Code, Courts and Judicial Pro-
ceedings, § 3-820(c)(1)(ii). In re Roger S., 1995, 658 A.2d 696, 338 Md. 385. Infants 222

6. Impartiality of administrative judge

Parents of disabled student failed to raise a serious question as to the impartiality of administrative law judges
(ALJs) who presided over Individuals with Disabilities Education Act (IDEA) hearings; nothing in the record
disclosed that either was an employee of the state educational agency (SEA) or local educational agency (LEA)
involved in the education of student, had personal or professional interests, or any bias stemming from an ex-
trajudicial source, that affected their objectivity and impartiality. 34 C.F.R. § 300.508(a)(1, 2); Md.Code, Educa-
tion, § 8-413(c)(2)(i). Cavanagh v. Grasmick, 1999, 75 F.Supp.2d 446. Schools 155.5(1)

7. Enforcement

Maryland law did not provide for court enforcement of favorable final order of local hearing officer under Edu-
cation of the Handicapped Act, even though state had not carried out that decision. Education of the Handi-
capped Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-415(g). Robinson
v. Pinderhughes, 1987, 810 F.2d 1270. Schools 155.5(2.1)

8. Civil rights action

Handicapped child and his mother had right to bring section 1983 action to remedy alleged due process violation
in school system's failure to give effect to favorable final decision by local hearing officer under Education of
the Handicapped Act, where neither Act nor state law provided for enforcement of favorable administrative de-
cision. Education of the Handicapped Act, § 615(c), (e)(1, 2, 4), as amended, 20 U.S.C.A. § 1415(c), (e)(1, 2, 4);
Md.Code, Education, § 8-415(b); U.S.C.A. Const.Amend. 14. Robinson v. Pinderhughes, 1987, 810 F.2d 1270.
Schools 155.5(2.1)

8.5. Tuition reimbursement

Maryland statute implementing the IDEA and providing that a parent who enrolls a child in nonpublic school is
not entitled to tuition reimbursement if the parent “does not provide to the county board prior written notice re-
jecting the program proposed by the county board” did not apply, so as to preclude reimbursement, where no in-
dividualized education program (IEP) had been proposed when the parents enrolled the child in a private school,
so that there was no proposal to reject. Sandler ex rel. Sandler v. Hickey, 2001, 5 Fed.Appx. 233, 2001 WL
227307, Unreported. Schools 154(4)

Maryland statute implementing the IDEA and providing that a parent who enrolls a child in nonpublic school is
not entitled to tuition reimbursement if the parent “does not provide to the county board prior written notice re-
jecting the program proposed by the county board” requires notice prior to the enrollment in the private school
for which the parent seeks reimbursement, and not merely prior to pursuit of a reimbursement action, but the
statute applies only when an individualized education program (IEP) has been proposed prior to the time the

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 11

child is enrolled in the nonpublic school. Sandler ex rel. Sandler v. Hickey, 2001, 5 Fed.Appx. 233, 2001 WL
227307, Unreported. Schools 154(4)

9. Federal jurisdiction

District Court would decline to exercise supplemental jurisdiction over state law claims brought by learning dis-
abled student and his parents with respect to school board's refusal to reimburse student's family for cost of his
private school tuition, after granting summary judgment for defendants on student's claims pursuant to Due Pro-
cess Clause, § 1983, Individuals with Disabilities Education Act (IDEA), and Rehabilitation Act. U.S.C.A.
Const.Amends. 5, 14; Individuals with Disabilities Education Act, § 601 et seq., 20 U.S.C.A. § 1400 et seq.; 28
U.S.C.A. § 1367(c)(3); Rehabilitation Act of 1973, § 504, 29 U.S.C.A. § 794; 42 U.S.C.A. § 1983; Md.Code,
Education, § 8-413(c)(2)(ii). Jones v. Washington County Bd. of Educ., 1998, 15 F.Supp.2d 783. Federal Courts
18

Dispute over whether school nurse who administered medications to disabled child had the ability to communic-
ate directly with the prescribing physician or whether child's parents had the power to restrict access to the phys-
ician until they were contacted and approved of any specific contact with that physician involved a medical
treatment issue, not a special education one, and thus ALJ did not have subject matter jurisdiction under the In-
dividuals with Disabilities Education Act and its State counterpart to adjudicate parents' due process complaint;
dispute did not touch truly on the provision of the administration of medications as a “related service,” but was
instead about an ethical issue which was associated only tangentially with a “related service.” John A. v. Board
of Educ. for Howard County, 2007, 929 A.2d 136, 400 Md. 363. Schools 155.5(1)

10. Judicial review--In general

In reviewing individualized education programs developed for handicapped children, court considers whether
state has complied with procedures set forth in Education of the Handicapped Act (EHA) and whether individu-
alized educational program developed through Act's procedures is reasonably calculated to enable child to re-
ceive educational benefits. Individuals with Disabilities Education Act, §§ 601-685, as amended, 20 U.S.C.A. §§
1400-1485. In re Conklin, 1991, 946 F.2d 306. Schools 148(2.1)

In reviewing state administrative decisions under the IDEA, the district court must determine (1) if the state or
local educational authority complied with the statutory procedures, and (2) whether the Individualized Educa-
tional Program (IEP) was reasonably calculated to enable the child to receive educational benefits. Individuals
with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq. Justin G. ex rel. Gene R.
v. Board of Educ. of Montgomery County, 2001, 148 F.Supp.2d 576. Schools 148(2.1)

To determine whether a school board has complied with the provisions of Individuals with Disabilities Educa-
tion Act (IDEA), a court must determine if the State complied with the procedures set forth in the Act, and must
then evaluate whether the individualized educational program (IEP) developed through the Act's procedures is
reasonably calculated to enable the child to receive educational benefits. Individuals with Disabilities Education
Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq. Cavanagh v. Grasmick, 1999, 75 F.Supp.2d 446.
Schools 148(2.1)

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 12

To examine whether a school board has complied with the Individuals with Disabilities Education Act (IDEA), a
court must determine if the board complied with the procedures set forth in IDEA and must evaluate whether the
individualized educational program (IEP) developed through IDEA's procedures is reasonably calculated to en-
able the child to receive educational benefits. Individuals with Disabilities Education Act, § 601 et seq., as
amended, 20 U.S.C.A. § 1400 et seq. Fritschle v. Andes, 1999, 45 F.Supp.2d 500. Schools 148(2.1);
Schools 155.5(1)

In compliance proceedings under IDEA, court inquires into whether educational agency has complied with Act's
procedural requirements and whether the individual education program developed pursuant to those procedures
was reasonably calculated to receive educational benefits. Individuals with Disabilities Education Act, § 601 et
seq., as amended, 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-401 et seq. Sanger v. Montgomery
County Bd. of Educ., 1996, 916 F.Supp. 518. Schools 155.5(2.1)

Key consideration in any procedural analysis under IDEA is whether full and fair parental involvement in re-
view process has been afforded; to extent that there may have been failure to comply strictly with Act's proced-
ures, court must consider whether failures caused loss of educational opportunity or are merely technical in
nature. Individuals with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.; Md.
Code, Education, § 8-401 et seq. Sanger v. Montgomery County Bd. of Educ., 1996, 916 F.Supp. 518. Schools
155.5(1); Schools 155.5(2.1)

11. ---- Statute of limitations, judicial review

Maryland Code's limitations period of 180 days for appealing from administrative law judge's (ALJ) decision in
IDEA case would be applied to parents' claim for attorney fees and costs. Individuals with Disabilities Education
Act, § 615(e)(4), as amended, 20 U.S.C.A. § 1415(e)(4); Md.Code, Education, § 8-413(h). Mayo v. Booker,
1999, 56 F.Supp.2d 597. Schools 155.5(5)

For statute of limitations purposes, putative “counterclaim” seeking reversal of adverse administrative agency
decision under Individuals with Disabilities Education Act (IDEA) was actually appeal from that decision, sub-
ject to state law 180-day statute of limitations applicable to appeals and not subject to federal rules governing
compulsory counterclaims; court was required to give due weight to administrative findings and was not permit-
ted to turn judicial review into unrestricted trial de novo. Individuals with Disabilities Education Act, § 601 et
seq., 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-413(h); Fed.Rules Civ.Proc.Rule 13, 28 U.S.C.A.
Fritschle v. Andes, 1998, 25 F.Supp.2d 699, reconsideration denied 32 F.Supp.2d 314. Federal Courts 424

Disabled student has statutory period of 180 days in which to file an action for judicial review of an administrat-
ive law judge's (ALJ) decision in IDEA case. Individuals with Disabilities Education Act, § 615, as amended, 20
U.S.C.A. § 1415; Code, Education, § 8-413(h). Tabor v. Baltimore City Public Schools, 2001, 773 A.2d 628,
138 Md.App. 747. Schools 155.5(2.1)

12. ---- Standing, judicial review

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 13

Handicapped child and his mother were not aggrieved parties, entitled to sue under Education of the Handi-
capped Act, where they had received favorable final decision, albeit one that was not carried out by the state.
Education of the Handicapped Act, § 615, as amended, 20 U.S.C.A. § 1415. Robinson v. Pinderhughes, 1987,
810 F.2d 1270. Schools 155.5(2.1)

13. ---- Pleadings, judicial review

Allegations that private school was better than public school did not state meritorious cause of action under Edu-
cation of All Handicapped Children Act or Rehabilitation Act in that, just because given school is allegedly
more appropriate than another school, less appropriate school does not necessarily become inappropriate, and
there is no constitutional right to the best education that money can buy. Fed.Rules Civ.Proc. Rules 12(b)(6), 56,
28 U.S.C.A.; Rehabilitation Act of 1973, § 504, as amended, 29 U.S.C.A. § 794; Education of the Handicapped
Act, §§ 602 et seq., 603 et seq., as amended, 20 U.S.C.A. §§ 1401 et seq.,1402 et seq.; U.S.C.A. Const.Amend.
14. Hessler by Britt v. State Bd. of Educ. of Maryland, 1983, 700 F.2d 134. Schools 154(4)

14. ---- Parties, judicial review

Application of revisions to state hearing process, which removed one tier of administrative hearings in actions
under Individuals with Disabilities Education Act (IDEA), to claim brought by parents of disabled student
against school district was not impermissibly retroactive, and could not form basis of third-party liability on part
of state superintendent of schools or state department of education, in absence of any enforceable federal right to
two-tier hearing structure. Individuals with Disabilities Education Act, § 601 et seq., 20 U.S.C.A. § 1400 et seq.;
Md.Code, Education, § 8-413(c). Fritschle v. Andes, 1998, 25 F.Supp.2d 699, reconsideration denied 32
F.Supp.2d 314. Schools 155.5(1)

15. ---- Standard, judicial review

If the administrative findings, as to school board compliance with Individuals with Disabilities Act (IDEA) de-
velopment of individualized education program (IEP) for disabled child, were made in a regular manner and
have evidentiary support, they are to be considered prima facie correct by a reviewing federal court. Individuals
with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq. Fritschle v. Andes, 1999,
45 F.Supp.2d 500. Schools 155.5(2.1)

Court reviewing administrative determination pursuant to Individuals with Disabilities Education Act (IDEA)
should afford findings of state administrative proceedings, whether made by local hearing officers or review
boards, prima facie correctness, unless decisionmaker below departed from normal fact-finding process. Indi-
viduals with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq. Jones v. Wash-
ington County Bd. of Educ., 1998, 15 F.Supp.2d 783. Schools 155.5(2.1)

Hearing officer's conclusion, in hearing under Individuals with Disabilities Education Act (IDEA), that school
district's proposed Individual Education Plan (IEP) for student afforded student statutorily required free appro-
priate public education (FAPE), was entitled to judicial deference and was prima facie correct, where hearing
complied with procedural requirements of Individuals with Disabilities Education Act (IDEA), its regulations,

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 14

and state equivalents thereof. Individuals with Disabilities Education Act, § 601 et seq., 20 U.S.C.A. § 1400 et
seq.; Md.Code, Education, § 8-413(c)(2)(ii); Md.Regs. Code title 13A, §§ 05.01.14H(5), 05.01.15H(3)(a). King
v. Board of Educ. of Allegany County, Maryland, 1998, 999 F.Supp. 750. Schools 155.5(2.1)

Hearing officer's findings of fact in proceedings pursuant to IDEA, including findings regarding school board's
compliance vel non with Act's procedural requirements, are entitled to prima facie correctness, and even greater
deference is due if hearing officer and state review authority agree. Individuals with Disabilities Education Act,
§ 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-401 et seq. Sanger v. Mont-
gomery County Bd. of Educ., 1996, 916 F.Supp. 518. Administrative Law And Procedure 749; Schools
155.5(2.1)

16. ---- Burden of proof, judicial review

In determining whether school board has complied with Individuals with Disabilities Education Act (IDEA) in
establishing individualized education program (IEP) for disabled student, federal court reviewing state adminis-
trative proceedings must make a bounded independent decision based on the preponderance of the evidence, giv-
ing due weight to the state proceedings. Individuals with Disabilities Education Act, § 601 et seq., as amended,
20 U.S.C.A. § 1400 et seq. Fritschle v. Andes, 1999, 45 F.Supp.2d 500. Schools 155.5(2.1)

Burden of proving that administrative decision pursuant to Individuals with Disabilities Education Act (IDEA) is
erroneous is on party challenging decision. Individuals with Disabilities Education Act, § 601 et seq., as
amended, 20 U.S.C.A. § 1400 et seq. Jones v. Washington County Bd. of Educ., 1998, 15 F.Supp.2d 783.
Schools 155.5(4)

Burden of proof is on party challenging state administrative proceedings under IDEA. Individuals with Disabilit-
ies Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.; Md.Code, Education, § 8-401 et seq.
Sanger v. Montgomery County Bd. of Educ., 1996, 916 F.Supp. 518. Administrative Law And Procedure
750; Schools 155.5(4)

17. ---- Evidence, judicial review

Even if parents of disabled student demonstrated gaps in the reasoning of administrative law judge (ALJ) in re-
spect to the intensity of special education services provided to student and in respect to local educational
agency's (LEA) less-than-strict conformity to relevant state standards, they failed to demonstrate how those os-
tensible procedural violations interfered with the provision of free appropriate public education (FAPE) to stu-
dent. Individuals with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq.
Cavanagh v. Grasmick, 1999, 75 F.Supp.2d 446. Schools 148(2.1)

Learning disabled student's abstract right to put in additional evidence concerning his particular educational
needs, on judicial review of administrative determination pursuant to Individuals with Disabilities Education Act
(IDEA) denying him reimbursement for private school tuition, was insufficient to overcome presumption of cor-
rectness to which administrative determination was otherwise entitled. Individuals with Disabilities Education

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 15

Act, § 615(e)(2), as amended, 20 U.S.C.A. § 1415(e)(2). Jones v. Washington County Bd. of Educ., 1998, 15
F.Supp.2d 783. Schools 155.5(4)

Failures to comply with IDEA's procedural requirements are adequate grounds by themselves for holding that
school failed to provide disabled student with free appropriate public education (FAPE). Individuals with Disab-
ilities Education Act, §§ 601-686, 601(c), as amended, 20 U.S.C.A. §§ 1400-1485, 1400(c). Reusch v. Fountain,
1994, 872 F.Supp. 1421, supplemented 1994 WL 794754. Schools 148(2.1)

Evidence did not support claim that school district defined “critical life skills” component in overly narrow man-
ner when it applied regression-recoupment analysis to decide disabled student's eligibility for extended school
year (ESY) services under IDEA; educators had flexibility in interpreting term “critical life skills” as applied to
students with complicated mixtures of academic and behavioral problems. Individuals with Disabilities Educa-
tion Act, §§ 601(c), 612(5), as amended, 20 U.S.C.A. §§ 1400(c), 1412(5); Md.Regs. Code title 13A, § 05.01.09
(G)(2). Reusch v. Fountain, 1994, 872 F.Supp. 1421, supplemented 1994 WL 794754. Schools 155.5(4)

Parents proved school had violated IDEA in connection with child's first year at school where, because of ad-
ministrative confusion and budgetary constraints, school failed to respond to mother's inquiries, informed moth-
er that child could not be tested until months after school began, failed to develop Individual Education Plan
(IEP) within required time limits, and did not tailor IEP to child's individual needs. Individuals with Disabilities
Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et seq. Gerstmyer v. Howard County Public
Schools, 1994, 850 F.Supp. 361. Schools 148(2.1)

18. ---- Findings, judicial review

District court must explain its decision if it does not follow hearing officer's factual findings in proceedings pur-
suant to IDEA. Individuals with Disabilities Education Act, § 601 et seq., as amended, 20 U.S.C.A. § 1400 et
seq.; Md.Code, Education, § 8-401 et seq. Sanger v. Montgomery County Bd. of Educ., 1996, 916 F.Supp. 518.
Administrative Law And Procedure 811; Schools 155.5(2.1)

19. ---- Remand, judicial review

Parents' action under Education of the Handicapped Act (EHA) had to be remanded to determine whether Mary-
land law was more expansive than federal law concerning the level of education which has to be offered to han-
dicapped children. Individuals with Disabilities Education Act, §§ 601-685, as amended, 20 U.S.C.A. §§ 1400-
1485. In re Conklin, 1991, 946 F.2d 306. Schools 155.5(5)

20. ---- Costs and attorney fees, judicial review

In light of limited relief received by parents of handicapped child, parents were entitled to award of attorney fees
and costs in action brought under Education of the Handicapped Act (EHA), although amount recoverable would
be reduced from that claim as result of incomplete and insufficient records. Individuals with Disabilities Educa-
tion Act, § 615(e), as amended, 20 U.S.C.A. § 1415(e). In re Conklin, 1991, 946 F.2d 306. Schools
155.5(5)

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

MD Code, Education, § 8-413 Page 16

Students who prevailed on their claim that school district systematically failed to meet its obligation to provide
disabled children with opportunity to obtain extended school year (ESY) services were entitled to attorney fees
under IDEA. Individuals with Disabilities Education Act, § 615(e)(4)(B), as amended, 20 U.S.C.A. § 1415(e)
(4)(B). Reusch v. Fountain, 1994, 872 F.Supp. 1421, supplemented 1994 WL 794754. Schools 155.5(5)

MD Code, Education, § 8-413, MD EDUC § 8-413

The statutes and Constitution are current through all chapters of the 2010 Regular Session of the General As-
sembly, effective through July 1, 1020.

(c) 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.