MEMORANDUM OPINION AND ORDER
Plaintiff E.L. filed this action through her parents, G.L. and D.L., against Defendant Chapel Hill-Carrboro Board of Education (“the Board”), alleging violations of the Individuals with Disabilities Education Act (“IDEA”). Before the court are cross-motions seeking a final disposition in the case. The Board has filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative a motion for summary judgment on all claims. (Doc. 33.) E.L. has filed a motion for summary judgment on all claims. (Doc. 38.) E.L. has also filed a motion to treat her motion for summary judgment as timely filed. (Doc. 41.) For the reasons set forth below, E.L.’s motion to treat her summary judgment motion as timely filed is granted, her motion for summary judgment is denied, and the Board’s motion to dismiss or, in the alternative, for summary judgment is granted.
I. BACKGROUND
E.L. is an eight-year-old girl who has been diagnosed with autism
E.L.’s parents became concerned that E.L. was not making sufficient progress and that her IEPs and the resources at FPG were not meeting her needs. While planning for E.L.’s 2009-10 IEP in the summer of 2009, E.L.’s parents suggested splitting E.L.’s enrollment at FPG with the Mariposa School in Cary, North Carolina. Mariposa is a private school that enrolls only disabled students and uses a different method of teaching from the method used at FPG. E.L.’s 2009-10 IEP originally provided for instruction at FPG five days a week, but E.L.’s parents insisted on placing E.L. at Mariposa for, three days and FPG for two days a week. E.L. began that split program in September 2009. Increasingly concerned about E.L.’s progress, E.L.’s parents removed her from FPG in March 2010 and enrolled her at Mariposa full-time. E.L.’s IEP team, including her parents and FPG staff, met several times in the fall of 2010 to determine her 2010-11 IEP. That IEP was never finalized, however, as the team was unable to agree on E.L.’s placement.
E.L.’s parents filed a petition for a due process hearing pursuant to 20 U.S.C. § 1415(f) on March 30, 2010, alleging that E.L. had been denied a free appropriate public education (“FAPE”) under the
The North Carolina Department of Public Instruction (“DPI”) appointed SRO Joe D. Walters to review the case pursuant to 20 U.S.C. § 1415(g) and N.C. GemStat. 115C-109.9. On December 6, 2011, the SRO decided in favor of the Board on the one issue at stake, reversing the ALJ’s decision as to whether the Board provided appropriate speech language services. E.L. filed the current action on January 9, 2012, pursuant to 20 U.S.C. § 1415(i)(2).
E.L. contends that she has exhausted all levels of review that the IDEA authorizes and has properly brought her claims before this court. She asserts that she was denied a FAPE because her 2008-09, 2009-10, and 2010-11 IEPs did not meet her needs, particularly for one-on-one instruction, and the services that the Board provided did not further the goals of the IEPs. She seeks reimbursement for private educational services and attorney’s fees. The Board argues that the court should dismiss E.L.’s claims that challenge the ALJ’s adverse findings because she failed to exhaust the administrative remedies available to her under the IDEA. The Board further urges the court to affirm the SRO’s decision that the IEPs met E.L.’s needs and the services provided adequately fulfilled what the IEPs required.
II. ANALYSIS
The court considers first the Board’s contention that this court lacks subject matter jurisdiction to consider E.L.’s challenge to the ALJ’s findings against her because she failed to exhaust her administrative remedies under the IDEA. (Doc. 34 at 21.) E.L. argues that she exhausted her remedies because, she contends, the ALJ’s hearing was the only level of administrative review authorized by the IDEA and his decision was therefore final. (Doc. 40 at 1, 3.) A court may grant a motion to dismiss for lack of subject matter jurisdiction “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co.,
A. Statutory Framework
The court examines first the statutory framework of the IDEA to assess E.L.’s claim that the ALJ’s decision was final and appealable under the IDEA.
The IDEA provides for a system of administrative review before any claims arising under it may be pursued in state or federal court. Under the IDEA, states choose between a one-tiered system, in which a “state educational agency” decides the case, and a two-tiered system, in which a “local educational agency” initially de
North Carolina opted for a two-tiered system. A person wishing to sue under the IDEA first files a petition with OAH. N.C. GemStat. § 115C-109.6. OAH, a state agency, appoints an ALJ to hear and decide the case. Id. After this initial hearing and decision, any aggrieved party may appeal the ALJ’s decision. N.C. Gen. Stat. § 115C-109.9. The state Board of Education, through its Exceptional Children Division, appoints an SRO to review the ALJ’s findings appealed and issue an independent decision. Id. The SRO’s decision is final unless an aggrieved party timely files a civil action pursuant to 20 U.S.C. § 1415(i)(2)(A).
E.L. contends that the IDEA does not authorize the kind of system North Carolina has in place. She argues that North Carolina’s first tier of review (by the ALJ) actually constitutes the “hearing ... conducted by the State educational agency” contemplated by 20 U.S.C. § 1415(f)(1)(A), and therefore no party has the right to appeal that decision to an SRO under section 1415(g). (Doc. 40-1.) Instead, E.L. contends, a party aggrieved by the ALJ’s decision has the right to file an original civil action under section 1415(i)(2). (Id.) Consistent with this view, E.L. moved to quash the Board’s previous appeal to the SRO. (Id.) E.L.’s contention that North Carolina’s second tier of review is unauthorized thus underpins her claim that she has exhausted all her administrative remedies under the IDEA.
E.L. is not the first North Carolinian to challenge whether the state’s system of review is authorized by the IDEA. L.K. ex rel. Henderson v. N.C. State Bd. of Educ., No. 5:08-CV-85-BR,
The IDEA’S statutory scheme requires that a state educational agency conduct the administrative review immediately preceding any civil action. Whether that review is the first tier of review (and therefore the only administrative tier of review), or the second does not matter. The IDEA defines a state educational agency as “the State board of education or other agency or officer primarily responsible for the State supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.” 20 U.S.C. § 1401(32).
E.L. does not, indeed cannot, assert that OAH is North Carolina’s state educational agency, as the IDEA defines it. The North Carolina Board of Education (“NCBOE”) is North Carolina’s “state educational agency,” and E.L. acknowledges as much. (Doc. 18 ¶ 38.) In North Carolina, it is the one and only “State board of education”; it is the one agency “primarily responsible for the State supervision of public elementary schools and secondary schools.” 20 U.S.C. § 1401(32). North Carolina’s statute implementing the IDEA specifically designates NCBOE, through its Exceptional Children Division, to provide an SRO for the final tier of administrative review. N.C. Gen.Stat. § 115C-109.9. According to the state statute, the only role NCBOE plays in the first tier is to create a “binding memorandum of understanding” with OAH to ensure that the first tier comports with the IDEA’S stan
E.L. relies heavily on the ALJ’s statement in his conclusions of law that his decision was being rendered on behalf of the state educational agency. (Doc. 7-2 at 57.) This is a misstatement.
Prior to the use of OAH, state law allowed the many local LEAs to organize and conduct hearings. This resulted in great differences in the manner these hearings were conducted and many inconsistencies, for there were no uniform procedures in effect. The use of OAH for the initial hearing was a significant improvement. The OAH, with trained ALJs, now efficiently and consistently conducts the initial hearing in and for the LEA [local educational agency] in accordance with G.S. 115C-109.6.
(Doc. 7-4 at 24.)
The court concludes that E.L. has failed to demonstrate that North Carolina’s choice to permit OAH to appoint local hearing officers to decide the case on behalf of LEAs is impermissible. The hearing by the OAH-appointed ALJ satisfies the “due process hearing” contemplated by 20 U.S.C. § 1415(f), and the second tier of review conducted by the NCBOE-appointed SRO satisfies the “appeal” contemplated by section 1415(g). Consequently, North Carolina’s two-tiered process of review is authorized by the IDEA, and E.L.’s contention to the contrary is rejected.
B. Exhaustion of Remedies
The court turns next to the Board’s contention that E.L. has not exhausted her remedies because she did not appeal the ALJ’s decision and, therefore, this court lacks jurisdiction. In response, E.L. argues that, even if North Carolina’s second tier of review was authorized, she did not have to appeal the ALJ’s adverse decision in order to exhaust her remedies because the SRO conducted a full review of all the issues in any event. Thus, E.L. contends, this court may consider her claims.
“[W]here administrative remedies have not been exhausted, parties cannot maintain an action in federal court under [20
E.L. petitioned for a due process hearing and received a hearing and deeision on the merits from the ALJ. Any party aggrieved by the ALJ’s decision had the right to appeal it for state-level review. 20 U.S.C. § 1415(g). E.L. chose not to appeal. She asserts, without citation to any authority, that she did not do so because the Board already had appealed and, “when the Board filed its request for an independent review by a SRO, the SRO was obligated to conduct an independent review of the entire record and the entirety of the hearing officer’s decision. And that is precisely what the SRO did.” (Doc. 40 at 3.)
Contrary to E.L.’s assertions, the SRO did not conduct an independent review of the entire record, nor was he required to do so by law. The IDEA requires only
E.L. contends that “it would be futile” for her to appeal the ALJ’s decision “because the SRO has already rendered a final decision that explicitly addresses all of [her] claims for relief.” (Doc. 40 at 3-
E.L.’s failure to appeal appears to have been part of a calculated gambit. Rather than appeal the ALJ’s adverse decision, E.L. moved to quash the Board’s appeal on the same ground she has advanced unsuccessfully here: that the SRO lacked legal authority to decide the Board’s appeal because, she claimed, the ALJ’s due process hearing constituted a final decision by a “state educational agency.” (Doc. 40-1.) By choosing this tack, E.L. put all of her eggs in that one basket in lieu of preserving her own rights by filing her own appeal of the ALJ’s findings adverse to her. Having lost her challenge, E.L. cannot now complain about the situation in which she finds herself.
In sum, E.L. has failed to exhaust her administrative remedies for the majority of the issues involved in this case. The only issue for which she did exhaust her administrative remedies, and therefore the only issue properly before this court, is whether the Board provided appropriate speech language services from April to May 2009 and September to December 2009. The court turns to that issue now.
C. Summary Judgment Motion on Speech Language Services 1. Standard of review
Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
The parties generally agree as to the standard of review regarding IDEA administrative proceedings. In reviewing the factual findings, the court is charged with making its own determinations based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii); J.P. ex rel. Peterson v. Cnty. Sch. Bd. of Hanover Cnty., Va.,
Although neither party references it, this deference is limited to factual findings. A district court must review findings about the IDEA’S legal requirements de novo. Fitzgerald v. Fairfax Cnty. Sch. Bd.,
When a state’s administrative review for IDEA claims is two-tiered, the SRO must defer to the ALJ’s determinations regarding credibility, since the ALJ hears the testimony and is best positioned to make credibility judgments. CM ex rel. JM v. Bd. of Pub. Educ. of Henderson Cnty.,
2. Speech and language services of the IEPs
Because the ALJ found E.L.’s IEPs appropriate and E.L. did not appeal that determination, the only matter properly under review is whether E.L. received speech language services that comported with her IEPs during several months in 2009.
From April to May 2009 (the first period in which the ALJ found the Board’s services to be insufficient), E.L. was enrolled at FPG full-time and had not yet begun her split program with Mariposa. The speech language pathologist (“SLP”) responsible for her speech language services was Kathleen Davis (“Davis”). Davis provided services to E.L. in a group setting. (Doc. 7-2 at 52.) She also supervised graduate clinicians who provided speech services to E.L. in a group setting. Hr’g Tr. vol. 9, 1593:4-6. According to Davis, the graduate clinicians wrote formal notes on E.L.’s progress, which Davis then reviewed and signed. Id. at 1599:12-17. Davis also kept her own, handwritten, informal notes on her students’ progress. Id. at 1638:4-5, 18-23. After Davis left FPG in summer 2009, she shredded all her personal, handwritten notes about E.L., as she did for each of her students. Id. at 1639:11-14,1640:14-20.
For the period from April to May 2009, the ALJ concluded that the Board did not provide “the direct one on one speech language therapy required [by the IEP].” (Doc. 7-2 at 52.) To support that finding, the ALJ noted that services were provided in a group setting, that graduate clinicians authored the formal notes about E.L.’s progress instead of Davis, and that Davis shredded her personal notes about E.L.’s progress. (Id.)
As the SRO correctly stated, however, E.L.’s 2008-09 IEP did not require one-on-one therapy. (Doc. 7-4 at 22.) It required that E.L. receive 45 sessions of speech language services per 9-week grading period and specifically noted that the location of the services would be in “tse,” or “total school environment.” Hr’g Ex. 23. The IEP also specifically noted that all services would be provided through an “embedded, inclusive model.” Id. The “embedded” model means that E.L. would
From September to December 2009 (the second period in which the ALJ found the Board’s services to be insufficient), E.L. was enrolled in a split program, spending three days a week at Mariposa and two days a week at FPG. At FPG, Melissa Felicelli (“Felicelli”) was the SLP responsible for providing E.L.’s speech services. Felicelli provided direct speech therapy to E.L. both in the embedded classroom setting and one-on-one. Felicelli believed that she would be better able to deliver her services if she pulled (or reverse-pulled
In finding that the speech services for September to December 2009 were inadequate, the ALJ again concluded that the Board did not provide “the direct one on one speech language therapy required [by the IEP].” (Doc. 7-2 at 52.) The ALJ focused on the conflict between Felieelli’s preference for one-on-one instruction, which E.L.’s parents also clearly prefer, and FPG’s preference for integrated or embedded instruction.
E.L.’s IEP, however, did not require Felicelli to provide one-on-one therapy. The 2009-10 IEP, revised to reflect E.L.’s split enrollment, merely required the Board to provide four hours a month of speech therapy. Hr’g Ex. 24, 95. Again, that therapy was to be provided in the “total school environment.” Id. As Felicelli herself testified, direct therapy does not have to be one-on-one. Hr’g Tr. vol. 5, 914:3-14. Felicelli provided direct speech therapy as E.L.’s IEP required until she resigned in November 2009. (Doc. 7-4 at 21.) Felicelli’s replacement, Michelle Flip-pen (“Flippen”), then provided speech therapy in the classroom and kept progress notes on E.L. until Flippen began maternity leave in late January 2010. (Id.)
Furthermore, the ALJ made no finding that the speech language services the Board provided from January 2010 to March 2010 (when E.L. was removed from FPG) did not fulfill E.L.’s IEP. And yet, Dr. Patsy Pierce, the SLP who took over for Flippen in January 2010, also did not provide one-on-one instruction. She provided direct speech language services as
The failure of the Board to provide one-on-one speech language services during 2009 cannot be the basis for a finding that the Board denied E.L. a FAPE because E.L.’s IEPs did not require one-on-one services and E.L.’s IEPs were found appropriate for her needs and adequate to ensure her progress. Thus, the Board’s motion for summary judgment on this claim will be granted.
III. CONCLUSION
For the reasons stated, the court finds that the IDEA authorizes North Carolina’s two-tiered administrative system of review in this case and that E.L. failed to exhaust her administrative remedies under that system on all issues except those relating to speech language services from April to May and September to December 2009, which the court finds comported with E.L.’s IEPs for those periods. Therefore, the Board did not deny E.L. a FAPE.
IT IS THEREFORE ORDERED as follows:
1. E.L.’s motion to treat her summary judgment motion as timely filed (Doc. 41) is GRANTED;
2. E.L.’s motion for summary judgment (Doc. 38) is DENIED;
3. The Board’s motion to dismiss or in the alternative for summary judgment (Doc. 33) is GRANTED, and E.L.’s claims that the Board failed to provide E.L. a FAPE as to speech and language services for April through May 2009 and September through December 2009 are DISMISSED WITH PREJUDICE, and E.L.’s claims that the Board failed to provide E.L. a FAPE in all other respects are DISMISSED WITHOUT PREJUDICE.
Notes
. E.L. has received several diagnoses. Her first amended complaint states that she has "Autism Spectrum Disorder, Apraxia of Speech, Dyspraxia, and sensory modulation problems." (Doc. 18 ¶ 1.) At least one of the Board’s witnesses during the administrative hearing questioned whether E.L. has apraxia of speech, Hr’g Tr. vol. 11, 1933:9-17, but E.L.'s exact difficulties need not be determined now. The important point is that the parties agree E.L. has an IDEA-qualifying disability under 20 U.S.C. § 1401(3).
. The ALJ actually issued his decision in two parts: the first on September 9, 2011, dismissing all claims occurring prior to March 30, 2009, because those claims were barred by the statute of limitations; and the second on October 7, 2011, addressing the remaining claims. (Doc. 7-2 at 10.)
. E.L. cannot claim that she did not appeal because she was somehow misled by this error, because the record reveals that she invited it. The AL J’s erroneous legal conclusion was proposed to him in "Petitioner’s Proposed Final Decision” at paragraph 331.
. The state statute requires that this first tier of review be conducted "in the county where the child attends school,” unless the parties agree otherwise. N.C. Gen.Stat. § 115C-109.6(d).
. As the Fourth Circuit recently noted, "the Supreme Court has, in the last decade, frequently addressed whether an element of a claim or a claims-processing rule is ‘jurisdictional.’ ” United. States v. Wilson,
Whether a rule is jurisdictional "is not merely semantic,” but may hold "considerable practical importance for judges and litigants.” Id. at 1202. A rule affecting a court's jurisdiction can be raised by any party, including the court, at any time, even at the completion of a trial. A claims-processing rule, on the other hand, must be raised by one of the parties and must be raised at the appropriate time in the litigation or it is forfeited.
The Fourth Circuit has not addressed whether a failure to exhaust the administrative remedies that the IDEA provides is "jurisdictional” in the light of the last decade of Supreme Court jurisprudence. Before this series of Supreme Court decisions, the Fourth Circuit held, without analysis, that IDEA exhaustion was a jurisdictional bar. MM ex rel. DM v. Sch. Dist. of Greenville Cnty.,
Ultimately, for purposes of this case the IDEA exhaustion’s status as a jurisdictional prerequisite is not dispositive because the Board did raise exhaustion as a bar to E.L.’s claims, thus mooting any consideration whether the court must independently raise the issue as a jurisdictional defect.
. Section 1415(g)(1) provides: "If the hearing required by subsection (f) is conducted by a local educational agency, any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency." (Emphasis added.) Section 1415(g)(2) provides: "The State educational agency shall conduct an impartial review of the findings and decision appealed under paragraph (1).” (Emphasis added.) The state implementing statute contains similar language. N.C. Gen.Stat. § 115C-109.9(a).
. From the outset, the SRO stated that his responsibility was to "make a decision related to those issues appealed by [the Board].” (Doc. 7-4 at 5.) The SRO provided facts relating to the whole record merely to provide context for his decision and separated into a different section the facts relating to the issue appealed. {Id. at 6, 17-18.) Similarly, the SRO acknowledged that he "only had to provide Conclusions pertaining to those issues that were appealed,” and provided other conclusions solely “to enable one to understand” his decisions. {Id. at 19.) Again, in his "Decision” section, the SRO identifies "the lack of speech therapy services” as "the sole issue in the appeal that the Review Officer must decide.” {Id. at 28.)
. At certain points in his decision, the SRO indicated that he cursorily reviewed issues not appealed solely for "significant errors.” {Id. at 5.) Though the SRO may have done so in the interest of thoroughness, it was not within his jurisdiction to review any issues not appealed. The Ohio and Pennsylvania cases the Board cites are not binding on this court but are instructive. (Doc. 34 at 23.) Ohio and Pennsylvania also have two-tiered systems and Ohio law implementing the IDEA is similar to North Carolina law.
In Ohio, an aggrieved party must file an appeal from the first tier of review in order to exhaust his remedies, even if the other party has also appealed. Gibson v. Forest Hills Local Sch. Dist., Bd. of Educ., No. 1:11-cv329,
In Pennsylvania, too, an aggrieved party must file an appeal from the first tier of review in order to exhaust his remedies, even if the other party has also appealed. See Kristi H. ex rel. Virginia H. v. Tri-Valley Sch. Dist.,
. Felicelli explained reverse-pulling as when the other children leave the classroom (for example, to go outside for recess or other activities) and the teacher remains behind with one child in the classroom for one-on-one attention. Hr’g Tr. vol. 5, 848:3-8.