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IDEA hearing officer erred by raising issue

Where the hearing officer deciding whether Fairfax County failed to provide a free appropriate public education, or FAPE, as required by the Individuals with Disabilities Education Improvement Act, or IDEA, decided an issue that was not raised by the parties, that was reversible error. His action prevented the parties the opportunity to be heard on the issue.


The Fairfax County School Board challenges the hearing officer’s decision in favor of defendants in the context of defendants’ allegation that Fairfax County Public School System, or FCPS, failed to provide a FAPE as required by the IDEA. This matter comes before the court on the parties’ cross-motions for summary judgment based on the administrative record.

The threshold and dispositive issue before the court is whether the hearing officer reached an issue not raised by either party when he found that FCPS denied A.G. a FAPE when, “at least by the end of FCPS[’s] 2020-2021 winter break,” it failed to “reconvene [A.G.]’s IEP team to review [Dr. Eabon’s September 2020] report” and “revise [A.G.]’s IEP to provide an appropriate location of services.”


“Under the IDEA, the subject matter of a due process hearing is limited to those issues that were raised in the due process complaint by the party requesting the hearing.” Thus, “where an issue ‘was not raised in the due process complaint, was not identified as an issue during the pre-hearing conference, nor was it mentioned in the pre-hearing order,’ the issue could not be raised sua sponte by the hearing officer following the due process hearing in the hearing officer’s determination.”

At each point in the proceedings, A.G.’s parents specifically challenged the suitability of South Lakes High School as an “appropriate placement” or “location” for A.G. during the 2020-21 school year. The hearing officer found the May and August IEPs did not violate the IDEA based on the information available to FCPS at the time they were developed.

FCPS argues that the hearing officer’s “decision should have stopped there” because by that point the hearing officer had resolved the issue that was before him, i.e., whether the May and August 2020 IEPs proposed an “unsuitable location” for the 2020-21 school year. But the hearing officer continued his analysis to reach what he acknowledged was a decidedly “separate question” when he found by a preponderance of the evidence that, on the date of his decision, South Lakes High School could “not now be considered reasonably calculated to enable [A.G.] to make progress appropriate in light of his circumstances.”

The hearing officer determined “that within a reasonable time after receipt of [Dr. Eabon]’s [Sept. 28, 2020] evaluation report, at least by the end of FCPS 2020-2021 winter break, FCPS had a duty to reconvene [A.G.]’s IEP team to review [Dr. Eabon’s Sept. 28, 2020] report and to revise [A.G.]’s IEP to provide an appropriate location of services. FCPS[’s] failure to do so was a denial of FAPE.” FCPS argues that the hearing officer’s decision to inject a “failure to reconvene” theory into the dispute constitutes reversible error. The court agrees and finds that A.G.’s parents offer no compelling argument to the contrary.

First, A.G.’s parents contend that their due process complaint was subject to “minimal pleading standards” and that they met those standards with respect to a “failure to reconvene” claim. The court disagrees. A.G.’s parents may not capitalize on permissive pleading standards where—as here—they previously stated: “we were very careful in drafting the due process complaint.”

Second, there was no temporal bar to the parents’ ability to raise a failure to reconvene claim in their filing. The hearing officer’s decision establishes that he found FCPS was obligated to reconvene A.G.’s IEP team before Jan. 4, 2021. Because A.G.’s parents filed their request for a due process hearing after that date, it is clear that A.G.’s parents failed to include any such claim even though one was available to them. 

Because the hearing officer determined sua sponte that FCPS denied A.G. a FAPE through the IEP team’s purported failure to timely reconvene without providing the parties the opportunity to be heard on the issue, the decision was in error. The hearing officer’s legal error was further compounded by the fact that the record reflects that FCPS did timely respond to Dr. Eabon’s report. The hearing officer was aware of this response by FCPS but provided no explanation for why he found it insufficient and untimely.

Plaintiff’s motion for summary judgment on the administrative record granted. Defendants’ motion for summary judgment on the administrative record denied. 

Fairfax County School Board v. A.G., Case No. 1:21-cv-00840, Sept. 2, 2022. EDVA at Alexandria (Nachmanoff). VLW 022-3-395. 21 pp.

VLW 022-3-395