BENSON EVERETT LEGG, United States District Judge.
Before this Court are Motions to Dismiss filed by defendants Board of Education of Queen Anne's County and Superintendent Bernard Sadusky ("County"), and Maryland State Department of Education and Superintendent Nancy S. Grasmick ("State"). For the reasons set forth below, the Court shall, by separate Order: (i) GRANT the County's Motion to Dismiss Counts IV, V, and VI, and (ii) GRANT IN PART AND DENY IN PART the State's Motion to Dismiss.
I. Background
Plaintiff David Hayden is a disabled child who received special education and related services from Queen Anne's County Public Schools (QACPS) in his home school from 1992 through the spring of 1996. (Compl. at ¶ 9).
In meetings held in May and August 1995, QACPS developed an Individualized Education Plan ("IEP") for David for the 1995-96 school year, providing an Intensity IV placement in the regular classroom at Centreville Elementary School. (Id. at ¶ 10). At a meeting held on January 25, 1996, plaintiffs David and Linda Hayden (David's parents) requested that he be placed at the private Harbour School. (Id. at ¶ 11). QACPS declined. (Id. at ¶ 12). On June 13, 1996 QACPS developed an IEP for the 1996-97 school year, continuing its prior recommendation. (Id. at ¶ 13).
The Haydens opposed the IEP and, on January 11, 1996, requested a hearing to contest it. (Id. at ¶ 18). In the meantime, plaintiffs unilaterally placed David in the Harbour School for the 1996-97 school year. (Id. at ¶ 17).
On August 27, 1996, Administrative Law Judge Anita Earp Robinson held a hearing pursuant to the IDEA, 20 U.S.C. § 1415(c) (1990), and Md. Code Ann., Educ. § 8-415 (1997). (Id. at ¶ 28). The ALJ upheld the IEP, finding that defendants had provided Adam with an appropriate education. (Id. at ¶ 30). Accordingly, the ALJ denied Mr. Lapp's request for a tuition reimbursement for the Summit School. (Id.)
On February 18, 1997, the Haydens filed this action on behalf of themselves and their son. In their Complaint, plaintiffs allege that the hearing process violated their substantive and procedural rights under a plethora of federal and state laws, including the IDEA; the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. § 1983; Md. Code Ann., Educ., §§ 8-415 et seq. (1997); and the Maryland Administrative Procedures Act, Md. Code Ann., State Gov't §§ 10-101 — 10-139.
An Amended Complaint was filed on March 9, 1997.
On March 17, 1997, the State filed its pending Motion to Dismiss all claims. The same day, the County filed its pending Motion to Dismiss the procedural claims against it (Counts IV, V, and VI); the County also filed a Cross-Claim against the State.
II. Legal Standard
A Complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. ("Rule") 12(b)(6) unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995). The liberal pleading requirements of Rule 8(a) demand only a "short and plain" statement of the claim.
III. Discussion
Under the IDEA, a student with disabilities is entitled to a "free appropriate public education" ("FAPE") at the government's expense. If the student disputes the adequacy of the education recommended, he is entitled to an "impartial due process hearing" to contest it. 20 U.S.C. § 1415(b)(1)(e). This administrative hearing process may be either single-tiered, with a hearing held at the state level, or double-tiered, with a local hearing appealable to the state. § 1415(b)(2) (c). The IDEA grants states full discretion to determine which method to employ.Id.
Under either method, the state level proceeding is appealable in state or federal court. 34 C.F.R. § 300.511.
By statute taking effect July 1, 1996, Maryland replaced its two-tiered hearing system with a one-tiered model. Md. Code Ann., Educ. § 8-415 (1997). The amended statute calls for a single, state-level, administrative hearing conducted by specially trained administrative law judges ("ALJs"). Id. Additionally, to ensure that each decision is "well-written, legally sufficient, timely, and conform[s] to standard format," the Office of Administrative Hearings introduced a quality assurance procedure called "subject matter review." (Mot., Ex. 3). Pursuant to this policy, each opinion draft is reviewed by an ALJ designated as a subject matter review specialist, although the ultimate responsibility remains with the judge who heard the case.
These amendments have withstood several challenges in this court. See Aiello v. Grasmick, Civil No. 96-3323 (D.Md. Feb. 28, 1997); Greif v. Grasmick, Civil No. 96-3313 (D.Md. Feb. 28, 1997).
A. Procedural Claims (Counts IV through VII)
In their Complaint, plaintiffs challenge these procedural adjustments. Specifically, the Haydens contend that their rights have been violated by: (i) defendants failure to appoint a knowledgeable ALJ (Count V), (ii) defendants' retroactive implementation of the statutory changes (Count VII), and (iii) by the process of subject matter review (Counts V VI).
1. Knowledgeable ALJ (Count IV)
In Count IV, the Haydens contend that their statutory and constitutional rights were violated by defendants' failure to appoint a "knowledgeable administrative law judge." (Compl. at ¶ 44). Plaintiffs, however, have established no legal basis for this alleged right.
The IDEA's detailed statutory and regulatory provisions for state education hearings require only that the hearing officer be "impartial." The IDEA imposes no requirements on the hearing officer's qualifications, training, or background. Accordingly, the federal law does not create a right to a "knowledgeable" ALJ.
The only limits on who may serve as an "impartial hearing officer" are as follows: (a) A hearing may not be conducted (1) by any person who is an employee of a public agency that is involved in the education or care of the child; or (2) By any person having a personal or professional interest that would conflict with his or her objectivity in the hearing. 34 C.F.R. § 500.507
Under Maryland law as amended, hearings are to be conducted by an ALJ who has received "specialized training in matters significant to the educational review of students with disabilities." Md. Code Ann. Ed. § 8-415(c)(2). While the Haydens clearly prefer the former statute (which required the hearing officer to be an individual with specific experience and expertise in special education and disabilities), they do not allege that defendants violated the statute as it stands. (Opp. at 8). As a result, the Court finds no support for their claim under state law.
Accordingly, in the absence of any legal authority to support a right to a knowledgeable ALJ under either federal or state law, the Court shall DISMISS Count IV in its entirety.
2. Retroactive Enforcement (Count VII)
At the time the Haydens requested a hearing, on January 11, 1996, Maryland employed a two-tiered hearing system. When the state subsequently switched to a one-tiered system on July 1, 1996, it informed the Haydens that their hearing request was being transferred to the State Office of Administrative Hearings. Plaintiffs now allege that this retroactive application of § 8-415 (to hearings requested before July 1, 1996) violates Maryland law and the Due Process Clause of the United States Constitution.
The Court finds that defendants' implementation of the amendments was proper. It is a well-settled principle of state and federal law that a statute which "takes away no substantive right, but simply changes the tribunal that is to hear the case" should apply to pending cases. Koger v. Ball, 497 F.2d 702, 706 (4th Cir. 1974) (quoting Hallowell v. Commons, 289 U.S. 506, 508 (1916) (Holmes, J.)). Although laws generally are to be applied prospectively, "any change made by statute or court rule affecting a remedy only (and consequently not impinging on substantive rights) controls all court actions whether accrued, pending, or future." Aviles v. Eshelman Electric Corp., 281 Md. 529, 533 (1977) (citations omitted).
Here, the Maryland legislature exercised its discretion under the IDEA to condense the two-tiered hearing system into a single-tiered system. 20 U.S.C. § 1415. This change in tribunal did not block the plaintiffs' pursuit of administrative remedies or limit their substantive rights. Because the IDEA did not create a vested right in a two-tiered hearing system, the procedures may be "changed or completely withdrawn at the whim of the legislature." Aviles, 281 Md. at 533. See also Roth v. Dimensions Health Corp., 332 Md. 627, 636 (1993) (citations omitted); Mraz v. County Comm's of Cecil County, 291 Md. 81, 90 (1981). Such changes apply to all actions, present or future. Id.
Accordingly, the Court finds that the State did not act improperly by applying the July 1, 1996 amendments to the Haydens and shall DISMISS Count VII.
3. Subject Matter Review (Counts V VI)
The Lapps contend that the policy of "subject matter review" violates their constitutional and statutory rights by "allow[ing] an individual with no knowledge of the case to review the decision and exercise a level of substantive and editorial control completely inconsistent with the independent fact finding and decision making of the impartial hearing officer." (Opp. Mot. at 10). This Court disagrees.
Internal communications among judges within the course of court administration are permissible. As explicitly addressed in the Commentary to the Maryland Rules, the prohibition against ex parte communications "does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities." Md. Ann. Code, Rule 16-831, Canon 3(A)(5) (1997). See also ABA Model Code, Ex. 4, Canon 3(A)(6) (1995).
Confronting a similar ALJ peer review and quality assurance system in the context of social security eligibility determinations, the Second Circuit upheld the system as "reasonable administrative measures in order to improve the decision-making process." Nash v. Bowen, 869 F.2d 675, 681 (2d Cir.), cert. denied 493 U.S. 813 (1989). The Court further observed that "[p]olicies designed to insure a reasonable degree of uniformity among ALJ decisions are not only within the bounds of legitimate agency supervision but are to be encouraged." Id.
The subject matter review policy at issue is consistent with this decision. Its purpose is to ensure that ALJ decisions adhere to uniform standards and to supply suggestions from a judge specially trained in the subject matter. The Court finds that these suggestions do not compromise the integrity or impartiality of the ALJ issuing the opinion and, accordingly, shall DISMISS Counts V and VI.
B. IDEA Claims (Counts I-III)
In Counts I through III, plaintiffs allege that defendants substantively violated the IDEA by failing: (1) to provide a "free and appropriate public education," (2) to evaluate David and develop his IEP within the statutory time lines, and (3) to place and fund David at the Harbour School.
In its motion, the State contends that it played no role in the development of the IEP and, therefore, cannot be held liable for any substantive failing on the part of the County. (Mot. at 14-17). The Fourth Circuit recently held, however, that:
[U]ltimately, it is the [state]'s responsibility to ensure that each child within its jurisdiction is provided a free appropriate public education. Therefore, it seems clear that a [state] may be held responsible if it fails to comply with its duty to assure that IDEA's substantive requirements are implemented.
Gadsby v. Grasmick,
109 F.3d 940, 952 (4th Cir. 1997).
In the absence of discovery, the Court is unable to determine the relative responsibility of each agency for the alleged IDEA violations. Nor can the Court determine whether the alleged substantive or procedural noncompliance, if any, was sufficient to deprive David of educational opportunity. Accordingly, the Court shall DENY the State's Motion to Dismiss Counts I through III.
IV. Conclusion
For the aforementioned reasons, the Court shall, by separate Order: (i) GRANT the County's Motion to Dismiss Counts IV, V, and VI, (ii) GRANT the State's Motion to Dismiss Counts IV, V, VI, and VII, and (iii) DENY the State's Motion to Dismiss Counts I through III.
ORDER
For the reasons stated in a Memorandum of even date, the Court hereby:
(i) GRANTS the Motion to Dismiss Counts IV, V, and VI filed by the Board of Education of Queen's Anne County, Maryland and Superintendent Bernard Sadusky.
(ii) GRANTS the Motion to Dismiss filed by defendants Maryland State Department of Education and Superintendent Nancy S. Grasmick ("State defendants") as to Counts IV, V, VI, and VII; and
(iii) DENIES the Motion to Dismiss filed by the State defendants as to Counts I, II, and III.
A scheduling Order shall be issued shortly.
IT IS SO ORDERED this __ day of August 1997.