Beruflich Dokumente
Kultur Dokumente
OAH NO.:
vs.
MONTGOMERY COUNTY
PUBLIC SCHOOLS
1. On October 21, 2009, MCPS filed a motion to dismiss for failure to seek a due process
2. MCPS’s motion states that the alleged actions that form the basis of the Mother’s hearing
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
i. MCPS did not provide information demonstrating that the Mother relied
on concrete data to know, rather than merely question, that her son was
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.
between MCPS and Mother describing that point sheets and other
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
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:
questions:
a. At what point in time does a parent’s suspicions and concerns raise to the level of
b. How should the Court determine which date is the basis of the FAPE complaint,
Limitations?
c. Does the basis of the parent’s complaint from a parent’s own informal
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
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
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
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
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
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
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
misrepresentations made by MCPS led the Mother to believe that she had no basis
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
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
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
ii. The facts providing the knowledge would have been provided to Mother,
iii. The facts providing the knowledge would NOT have been provided to
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,
factors affecting whether the parent ‘knew or should have known’ about the
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.
16. When the Mother “knows or should know” is based upon the factors in play, on a
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.
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
should have known at the time Mother had facts to show that it was possible that FAPE
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
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
21. Based upon the facts presented by Defendant in its Motion to Dismiss and based upon
IEP that Defendant agency had resolved the problem, under Md. Education Code Ann.
22. Thus there is enough evidence present on the record for an ALJ to determine that:
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
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
jkrew@krewlaw.com.
Patrick Hoover