John A. Ex Rel. A.A. v. Board of Education

HARRELL, J. We issued a writ of certiorari to the Court of Special Appeals, before it decided the appeal in this case, to consider whether the Circuit Court for Howard County erred when it affirmed the Administrative Law Judge’s (“ALJ”) order dismissing Appellants’ due process complaint for lack of subject matter jurisdiction under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 to 1419 (2000 & Supp. IV 2004), 1 , 2 and its Maryland counterpart, Maryland Code (1978, 2006 RepLVol.), Education Article (“Education”), ³⁷⁰ §§ 8-401 to 8-417. 3 , 4 The basis for the ALJ’s conclusion was that the dispute involved a medical or ethical, rather than a special education, issue. I. A. Background Congress passed the IDEA in order to provide “that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400 (d)(1)(A). The Act also “ensure[s] that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400 (d)(1)(B). To encourage states to enact procedures that further the goal of providing educational services to disabled children, Congress allots public money to states that adopt regulations in accordance with the provisions of the IDEA. 20 U.S.C. § 1411 (a)(1).

In order to receive federal funding, states must provide a “free appropriate public education” 5 (“FAPE”) to each indi ³⁷¹ vidual between the ages of three and twenty-one who qualifies as a “child with a disability.” 6 20 U.S.C. § 1412 (a); accord Education § 8-403(a). In addition to direct special education programs, school systems must also provide “related services” 7 to all children who qualify under the IDEA. 20 U.S.C. § 1411 (a)(1); accord Education § 8-403(b). To determine the scope of the special education and “related services” to be provided so that disabled children may access their FAPE, the school system must evaluate each child with a disability and develop an “individualized education plan” 8 (“IEP”) to address ³⁷² his or her specific needs. 20 U.S.C. § 1414 (b)(2); accord COMAR §§ 13A.05.01.03(B), 13A.05.01.06. The IEP consists of special instruction and support services calculated to address the child’s special education and related service needs to achieve annual goals set by an IEP Team. 20 U.S.C. § 1414 (d); accord COMAR § 13A.05.01.09.

The IEP Team consists of teachers, administrators, health personnel, other experts, and the parents of the child who convene to analyze the needs of the child and the goals for the child’s development, resulting in a written IEP outlining the program to be implemented. 20 U.S.C. § 1414 (d); accord COMAR § 13A.05.01.07. The IDEA prescribes a number of procedural safeguards that individual states must make available for parents and disabled children who claim a denial of the child’s right to a FAPE. 9 20 U.S.C. § 1415 ; accord Education § 8-413. Congress intended these safeguards to protect parents’ participation in the ongoing development of their child’s educational program. Sch.

Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 361 , 105 S.Ct. 1996, 1998 , 85 L.Ed.2d 385 (1985). Either a disabled child’s parents or a school board may file a complaint with the appropriate educational agency “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415 (b)(6); accord COMAR § 13A.05.01.15(c)(l). In such a complaint, a party may request an “impartial due process hearing, which shall be conducted by the State edu ³⁷³ cational agency or by the local educational agency, as determined by State law or by the State educational agency.” 20 U.S.C. § 1415 (f); accord Education § 8-413(d). Following the administrative disposition of a due process complaint, “any party aggrieved by the findings and decision ... shall have the right to bring a civil action with respect to the complaint ... which action may be brought in any State court of competent jurisdiction.” 20 U.S.C. § 1415 (i)(2)(A); accord Education § 8—413(j).

The state court, in such an action, “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415 (i)(2)(C). In accordance with the requirements to receive funding from the Federal government under the IDEA, Maryland adopted Education § § 8-401 to 8-417, which substantially mimics the language of the federal IDEA statute. Further, the Maryland statutory scheme states that “all proceedings held and decisions made pursuant to this subtitle shall be in conformance with applicable federal law.” 10 Education § 8-407. Accordingly, the Maryland statutory scheme provides similarly for procedural safeguards to protect the rights of disabled children and their parents.

Education § 8-413. Either a disabled child’s parents or a school board may lodge a due process complaint with the State educational agency and the Maryland Office of Administrative Hearings (“OAH”) 11 “to resolve a dispute over the identification, evaluation, educational placement, or the provision of free appropriate public education, in accordance with federal law.” Education § 8-413(a)(3). The ALJ appointed to hear the dispute may, “after ³⁷⁴ review of the education records of the child, dismiss any request for review which does not relate to” the identification, evaluation, educational placement, or the provision of free appropriate public education to the child. Education § 8-413.

As required by the IDEA, Maryland law authorizes judicial review of these administrative decisions by the U.S. District Court for the District of Maryland or by the circuit court for the county in which the child resides. Education § 8—413(j); Md.Code (1984, Repl.Vol.2004, Supp.2006), State Government Article, § 10-222. 12 A party aggrieved by the final judgment of a circuit court may appeal to the Court of Special Appeals in the manner that the law provides for appeal of civil cases. Md.Code (1984, Repl.Vol.2004, Supp.2006), State Government Article, § 10-223(b). B. The Present Case The dispute in this case arose during the 2002-03 and 2003-04 school years, while John A.’s daughter, A.A., was attending Rockbum Elementary in Howard County.

Appellee, the Board of Education for Howard County, administers the How ³⁷⁵ ard County Public Schools (“HOPS”). During all times relevant to this litigation, A.A. qualified as a “child with a disability,” pursuant to the IDEA, because she suffered from Bipolar Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”), and Sensory Integration Disorder. As a result, beginning in October 2002, A.A. received special education and certain related services from the HOPS in accordance with an IEP developed and implemented by A.A.’s parents, a special education teacher, a psychologist, an occupational therapist, a behavior specialist, and the principal of Rockburn Elementary School (the IEP Team). The IEP applicable to A.A., under “Special Education and Related Services,” listed “Instruction,” “Psychological Services,” and “Occupational Therapy” as the services to be provided by the HOPS. 13 In addition to the IEP and the IEP “Team Meeting Summary” documents, the parents signed a “Request for Records” form consenting to the release of A.A.’s confidential psychiatric records to the HOPS, expressly conditioned on the parents being informed before the HOPS or its agents and employees contacted A.A.’s psychiatrist.

In accordance with an agreement with the HOPS signed by A.A.’s treating psychiatrist, Dr. Harold Eist, the school nurse at Rockburn administered to A.A. two medications, Geodon and Neurontin, during the 2002-03 school year. 14 During the ³⁷⁶ school year, teachers and health room personnel at Rockburn observed A.A. as being lethargic and drowsy, sometimes falling asleep in class and in the health room. In August 2003, Dr. Eist added another medication, Inderal, to the child’s drug regimen to treat her ADHD and Bi-Polar Disorder. Shortly thereafter, in early October 2003, a school nurse wrote to Dr. Eist to inform him that, at the time A.A. was administered her medications, Rockburn staff observed that, prior to the administration of her medications, A.A. was lethargic and had fallen asleep in class, and that her apical pulse rate was between 110 and 142. The letter explained that, during classroom observations, school health personnel noticed that A.A.’s eyes were closed several times, that she was lying sideways on her desk with her head resting on her arm, had a dazed or staring expression, and appeared not to be focusing on her lessons.

As a result, the school nurse requested clarification from Dr. Eist concerning the administration of A.A.’s medications when possible symptoms contraindicating further drug administration were noted and sought boundary standards as to when the medication should be withheld. A copy of this letter was sent to the parents. 15 On 15 October 2003, A.A.’s parents informed Dr. Eist that it was their understanding from the nurse’s letter that the HOPS sought discretion to refrain from administering the child’s medications based upon its physical observations. The parents expressed their disapproval of such a request and asked Dr. Eist to respect A.A.’s right to privacy and provide no further information to the HOPS or its employees regarding A.A.’s medical condition and treatment, absent their prior consent or in the case of a bona fide medical emergency. Accordingly, in response to the school nurse’s letter, Dr. Eist’s attorney advised her and the HOPS that Dr. Eist would not release A.A.’s confidential medical information unless ³⁷⁷ there was parental consent or he otherwise was compelled by law to do so.

The attorney explained that Dr. Eist would not change the medications prescribed for A.A., the nurse and the HCPS were expected to continue to administer the medications according to Dr. Eist’s orders, 16 and A.A. should not be removed from class for pulse readings. On 25 November 2003, Donna Heller, the HCPS’s health services manager, wrote to Dr. Eist (with a copy to the parents) to make clear that neither the nurse nor the HCPS was asking the psychiatrist to change the prescribed medications and emphasizing that, in order to ensure the child’s safety, the request simply was for clarification and standards for when the medications should be withheld based on symptoms noted at the time of administration. According to the health services manager, a registered nurse, she consulted the 2004 Nursing Drug Handbook which dictated that nurses should “always check patient’s apical pulse rate before giving [the] drug (Inderal)” and, “if extremes in pulse rates occur, withhold [the] drug and notify [the] presciber immediately.” She informed Dr. Eist that she consulted with the Maryland Board of Nursing and that counsel for that Board advised that rote administration of the medications without the ability to communicate directly with the prescribing psychiatrist would be inappropriate. The health services manager concluded that, based on the symptoms observed by the nursing staff, combined with a lack of guidance from Dr. Eist and, in the absence of the ability to communicate with him directly, the HCPS’s staff no longer would administer the medication to A.A., beginning on 2 December 2003.

Ms. Heller suggested that either of A.A.’s parents would be free to come to Rock-burn and administer the medications to their daughter during the school day. 17 ³⁷⁸ In response to the HCPS’s letter, A.A.’s parents insisted that the HCPS abide by the psychiatrist’s orders to administer the medications to A.A. during the school day at the prescribed time and in the prescribed dosages. The HCPS refused and reaffirmed to A.A.’s parents that, because the HCPS and Rockburn staff would not administer the medications under the circumstances, they were welcome to come to A.A.’s school to accomplish the tasks on a daily basis. On 9 June 2004, A.A.’s parents filed a request for a due process hearing under the provisions of the IDEA and its Maryland counterpart, asserting that the HCPS’s refusal to administer the three medications in accordance with Dr. Eist’s instructions constituted a denial of A.A.’s FAPE. They sought an administrative order requiring the HCPS to abide by Dr. Eist’s medical directives and administer the medication to A.A. during the school day.

At the outset of the due process hearing before the ALJ, the HCPS’s attorney challenged the ALJ’s subject matter jurisdiction under the IDEA to consider the issues presented in the parents’ hearing request. The ALJ ordered the HCPS to file its motion to dismiss in writing and continued the hearing. Shortly thereafter, the HCPS submitted a Motion to Dismiss or in the Alternative Motion for Summary Decision for failure to state a claim under the IDEA. The HCPS argued that, under the IDEA and Maryland law, a due process hearing may be conducted only when the dispute pertains to the “identification, evaluation, or placement of the child, or the provision of a free appropriate public education to such child.” The parents’ due process request, however, did not implicate any of the four categories of appropriate jurisdiction for the ALJ because the dispute did not concern A.A.’s special education rights.

Rather, the HCPS claimed that the only issue presented by the dispute was whether the HCPS’s action exceeded the standard of care ³⁷⁹ applicable to the nursing profession when it insisted that the school employee designated to administer the drugs be allowed to consult with the treating physician in order to obtain clarification and boundaries for when the medication should be withheld based on symptoms noted at the time of administration. 18 Conversely, A.A.’s parents argued on her behalf that the issue was whether the HCPS acted reasonably in demanding that the parents waive their and A.A.’s medical privacy rights 19 in exchange for the continuation of the administration of medication to a child which, the HCPS conceded, generally would be considered a “related service” under the IDEA. The parents maintained that they were prepared to disprove the factual predicate upon which the HCPS relied, namely, the effect of the medications on A.A. and the potential ramifications of discontinuing the medication regime. 20 In granting the HCPS’s motion to dismiss, the ALJ emphasized that “while the rights of parents and guardians are extensive, the scope of due process hearings is limited to ‘complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child or the provision of a free, appropriate education to such child.’ ” The ³⁸⁰ ALJ found that the complaint did not allege that there was any dispute as to the proper identification of A.A. as a “child with a disability,” her evaluation, or her educational placement. Further, the ALJ found that the issue presented involved “the rights of the Parents to control the release of medical information about their child against the right of nurses to speak to the treating physician when administering medication the physician prescribed,” rather than the “provision of a free appropriate public education.” The ALJ determined that this issue raised a medical treatment, or ethical, question, rather than a special education one. Therefore, the dispute raised in the parent’s complaint fell outside of the scope of the IDEA, depriving the ALJ of subject matter jurisdiction.

Accordingly, the ALJ dismissed the parents’ due process complaint. Upon the parents’ petition for judicial review, the Circuit Court for Howard County affirmed the ALJ’s order dismissing the parents’ IDEA claim. 21 The Circuit Court found that the issue was not whether A.A. requires medication to participate in her education but rather, whether the school has the right to request additional direction from the child’s treating/prescribing physician. The court determined that this issue was not covered by the provisions of the IDEA and, thus, the ALJ correctly dismissed the parents’ complaint for lack of subject matter jurisdiction. A.A.’s parents noted a timely appeal to the Court of Special Appeals.

Appellants, in their brief to the intermediate appellate court, posed the issue as whether the ALJ had subject matter jurisdiction under the IDEA or the Education Article to compel the HCPS to provide the medication as a “related service” that had been arranged in conjunction with a negoti ³⁸¹ ated IEP. We, on our initiative, issued a writ of certiorari to the Court of Special Appeals before it decided the appeal in this case. 397 Md. 107 , 916 A.2d 256 (2007).

II

Standard of Review We review the ALJ’s decision according to the same statutory standards 22 as did the circuit court. Dep’t of Pub. Safety and Corr. Servs. v. Demby, 390 Md. 580, 614 , 890 A.2d 310, 330 (2006); Schwartz v. Dep’t of Nat’l Res., 385 Md. 534, 553 , 870 A.2d 168, 179-80 (2005); Charles County Dep’t of Soc.

Servs. v. Vann, 382 Md. 286, 294 , 855 A.2d 313, 318 (2004). Thus, the inquiry is not whether the Circuit Court erred, but whether the ALJ erred. Consumer Prot. Div. v. Morgan, 387 Md. 125, 160 , 874 A.2d 919, 939 (2005); Spencer v. State Bd. of Pharmacy, 380 Md. 515, 524 , 846 A.2d 341, 346 (2004).

As explained recently for the Court by Judge Eldridge in Maryland Aviation Administration v. Noland, “[a] court’s role in reviewing an administrative agency adjudicatory decision is narrow ...; it ‘is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determining] if the administrative decision is premised upon an erroneous conclusion of law.’ ” 386 Md. 556, 571 , 873 A.2d 1145, 1154 (2005) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 , 729 A.2d 376, 380-81 (1999)); United Parcel Sen., Inc. v. People’s Counsel, 336 Md. 569, 576 , 650 A.2d 226, 230 (1994). The reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record. Noland, 386 Md. at 571 , 873 A.2d at 1154 ; CBS v. Comptroller, 319 Md. 687, 698 , 575 A.2d 324, 329 (1990). In reviewing an agency’s legal conclusions, it is a fundamental principle of administrative law that a reviewing ³⁸² court should not substitute its judgment for the expertise of those persons who constitute the administrative agency.

Noland, 386 Md. at 571-72 , 873 A.2d at 1154 ; Belvoir Farms Homeowners Ass’n v. North, 355 Md. 259, 268 , 734 A.2d 227, 232 (1999); United Parcel Serv., Inc., 336 Md. at 576-77 , 650 A.2d at 230 . Although we often will give considerable weight to the agency’s experience in interpreting a statute that it administers, Noland, 386 Md. at 572 , 873 A.2d at 1154 , it is within our prerogative to determine whether an agency’s conclusions of law are correct, and to remedy the situation if found to be wrong. Schwartz, 385 Md. at 554 , 870 A.2d at 180 ; Christopher v. Montgomery County Dep’t of Health, 381 Md. 188, 199 , 849 A.2d 46, 52 (2004); Balt. Lutheran High Sch.

Ass’n v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985).

III

Discussion Appellants claim that the ALJ possessed subject matter jurisdiction to adjudicate their complaint because the administration of medication was a “related service” which the HOPS was required to provide in accordance with the IEP applicable to A.A. They believe that the dispute in this case relates to the “identification, evaluation, or placement of the child, or the provision of a free appropriate public education to such child,” and thus falls within the class of issues to be addressed through the procedural protections provided by the IDEA and its Maryland counterpart. As a threshold issue, we must determine whether, as Appellee claims, the absence of an “administration of medication” provision from the four corners of A.A.’s IEP precludes necessarily any complaint based on provision of the service. A. Omission of Administration of Medication from the IEP The provision of a FAPE, which a state must satisfy with respect to all disabled children, necessarily includes ³⁸³ personalized instruction and such supportive services as are “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 , 102 S.Ct. 3034, 3042 , 73 L.Ed.2d 690 (1982). As discussed previously, the IEP serves as the blueprint for the special education services provided to disabled children to ensure their proper access to a FAPE.

Appellee relies heavily on the fact that “administration of medication” is not enumerated in A.A.’s IEP as a “related service” to be provided by the HOPS. The HOPS claims that, while the IDEA contemplates generally the administration of medication as a potential “related service,” not every disabled child is entitled to every potential “related service” mentioned in the IDEA. Instead, it argues, the “related services” due a child are restricted to those contained in his or her particular IEP, which presumably is tailored to his or her special circumstances, unless or until the child’s parents petition to have an additional service added. Simply put, the HOPS contends that, because A.A.’s IEP does not enumerate the administration of medication as a specific “related service” in her case, she is not entitled to such a service under the IDEA.

In response, A.A.’s parents point to the October 2002 IEP Team Meeting, at which they signed forms 23 that reflected the parties’ agreement that the HOPS would administer Indural, Geodon, and Nurontin at 12:30 p.m. each school day. The parents argue that, by signing these forms, the HOPS was agreeing to provide the medications to A.A. as a service related to A.A.’s special education plan, notwithstanding there being no mention of the administration of these medications in the IEP itself. Therefore, according to the parents, the provision of A.A.’s medications should be considered effectively as part of A.A.’s IEP. They also contend that, for the purposes of the motion to dismiss, the HOPS twice ³⁸⁴ conceded that it was obligated to administer the medications to A.A. as a “related service.” Because we hold that a “related service” need not be included necessarily in the child’s IEP in order to form the basis for a due process complaint, we forgo a determination on this record whether the “administration of medication” was included implicitly in A.A.’s IEP.

This conclusion comports not only with relevant case law, but with the overarching purpose of the IDEA to ensure that all disabled children have access to a free appropriate public education. Precedent of the U.S. Supreme Court supports our conclusion that the administration of medication constitutes a “related service,” whether mentioned in an IEP or not. In Irving Independent School District v. Tatro, 468 U.S. 883 , 104 S.Ct. 3371 , 82 L.Ed.2d 664 (1984), the Supreme Court considered whether a school board was required by the IDEA to provide clean intermittent catheterization (“CIC”) to a child with a disability, even though the service was not contained in her IEP. 468 U.S. at 885 , 104 S.Ct. at 3373 . The Court outlined a two-step process to determine whether the school must provide a “related service.” The first step is to consider whether the service is a “supportive service ... required to assist a handicapped child to benefit from special education,” and the second step is to determine whether the service is excluded from this definition as a “medical service” serving purposes other than diagnosis or evaluation.

Tatro, 468 U.S. at 890 , 104 S.Ct. at 3375-76 . The Tatro Court concluded that the child required a CIC in order to remain in class and benefit from her special education program and that the service could be “performed in a few minutes by a layperson with less than an hour’s training.” Tatro, 468 U.S. at 885-88 , 104 S.Ct. at 3373-75 . Therefore, the Court affirmed the order of the District Court, mandating that the board of education modify the child’s IEP to include the provision of CIC during school hours. Tatro, 468 U.S. at 888 , 104 S.Ct. at 3375 . ³⁸⁵ Similarly, in Cedar Rapids Community School District v. Garret F., 526 U.S. 66 , 119 S.Ct. 992 , 143 L.Ed.2d 154 (1999), the parents of a ventilator-dependent child, who required constant individual services throughout the school day, requested that the school district accept financial responsibility for the child’s health care services.

Cedar Rapids, 526 U.S. at 69-70 , 119 S.Ct. at 995-96 . The district denied the request, claiming it was not legally obligated to provide continuous, one-on-one nursing services. Cedar Rapids, 526 U.S. at 70 , 119 S.Ct. at 996 . Following its decision in Tatro , the Court held that the school district could only refuse to provide medical services which inherently must be performed by a physician.

Cedar Rapids, 526 U.S. at 74 , 119 S.Ct. at 997 (citing Tatro, 468 U.S. at 892-94 , 104 S.Ct. at 3377-78 ). Although the child’s IEP did not contain any reference to “administration of medication,” the district was held to be required to provide the child’s service because the individualized care requested did not demand the training, knowledge, and judgment of a licensed physician and was necessary for the child to access her FAPE. Cedar Rapids, 526 U.S. at 74 , 119 S.Ct. at 997 . The Supreme Court’s decisions in Tatro and Cedar Rapids suggest that an IEP does not take the form of a strict contractual relationship between the parties and is not the be-all-end-all of those services, and only those services, which must be provided to a disabled child.

The HCPS, in its brief, advances this very claim, relying on Ms. K., Mother and Next Friend of S.B. v. City of South Portland, 407 F.Supp.2d 290, 301 (D.Me.2006), to explain that an IEP is not governed by the law of contracts and is not itself a legally binding contract. In this regard, it is entirely correct. Because an IEP is not evaluated as if it were a fully-integrated contract, an appropriate administrative body, here the ALJ, could order, based on a due process complaint, the IEP to be modified so that it is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207 , 102 S.Ct. at 3051 . While an IEP document may reflect the discussions and educational plan contemplated for a disabled child, a school district is nonetheless required to provide the child with a ³⁸⁶ FAPE, which includes personalized instruction and such supportive services as are necessary to fulfill the underlying purpose of the IDEA.

Thus, the fact that A.A.’s IEP does not acknowledge explicitly A.A.’s entitlement to the administration of medication is not determinative in this case. The absence of an administration of medication provision from A.A.’s IEP does not portend that such a service is not required by the IDEA. Rather, Tatro and Rowley stand for the proposition that if. a particular service necessary for a disabled child to access their FAPE is absent from their IEP, such a shortcoming or oversight may not be used to defeat a disabled child’s otherwise legitimate claim under the IDEA. We agree with A.A.’s parents that the provision of a FAPE necessarily includes the provision of all “related services” contemplated by the IDEA and others reasonably calculated to be necessary for the child to benefit from his or her specialized education.

In both Tatro and Cedar Rapids, the related services were not outlined in the children’s IEP’s, yet the Supreme Court nonetheless required the school boards in those cases to provide the services and allowed claims for such unrecognized services to form the basis of IDEA due process