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County not liable for minor’s private day facility tuition

3//September 11, 2023

County not liable for minor’s private day facility tuition

3//September 11, 2023

Where a hearing officer correctly concluded, after a seven-day hearing that included 18 witnesses, 198 exhibits and post-hearing briefs, and which resulted in a 59-page decision, that private school placement for a minor was unnecessary because the public special education that Fairfax County Public Schools provided satisfied the statutory requirements, her decision was affirmed.


M.B. and his parents J.B. and S.B. as next friends bring this action under the Individuals with Disabilities Education Act, or IDEA, challenging a hearing officer’s decision that defendant Fairfax County Public Schools, or FCPS, provided M.B. with a free appropriate public education, or FAPE, as required by the IDEA. Specifically, plaintiffs seek reimbursement for tuition costs incurred in sending M.B. to a private day facility during the 2021-22 school year, as well as an order directing FCPS to place and fund M.B. at the private day facility going forward.

After a seven-day hearing with testimony from 18 witnesses, the hearing officer denied plaintiffs’ request for reimbursement and found that private school placement for M.B. was unnecessary because the public special education that defendant provided to M.B. satisfied the IDEA’s requirements. This matter is now before the court on the parties’ cross motions for judgment on the administrative record.


Plaintiffs first argue that the hearing officer’s administrative findings are not entitled to deference because they were not regularly made. The Fourth Circuit has made clear that in determining whether a hearing officer’s findings of fact were “regularly made” and therefore entitled to “due weight,” reviewing courts should focus “on the process through which the findings were made.”

Here, the hearing officer conducted a lengthy, seven-day hearing during which she permitted the parents and the school board to call witnesses without restriction and to direct- and cross-examine the witnesses. Indeed, the testimony of the 18 witnesses who testified during the hearing comprises roughly 2,300 pages of transcript.

Moreover, it is clear from a review of the transcript that the hearing officer was actively involved throughout the hearing, taking notes and asking her own questions of the witnesses. The hearing officer also permitted parties to introduce exhibits, and the parties did so, submitting a total of 198 exhibits into the record. The hearing officer also permitted the parties to file post-hearing briefs.

After hearing all the evidence and receiving post-hearing briefs from the parties, the hearing officer issued a thorough 59-page decision detailing her findings and analysis. Her detailed decision includes hundreds of citations to the transcript and exhibits. Moreover, the decision made explicit findings as to the credibility of the witnesses and provided explanations for her decision to rely on certain witnesses over others. Plaintiff’s argument that the hearing officer’s findings were not “regularly made” must be rejected.


Plaintiffs argue that the hearing officer reached the wrong conclusion for four reasons: (1) the hearing officer failed to apply the proper FAPE standard under Supreme Court precedent; (2) the hearing officer erred in excusing FCPS’s response to the COVID-19 pandemic; (3) the hearing officer improperly credited FCPS’s witnesses while discrediting the testimony of the parents’ expert witnesses and (4) the hearing officer erred in concluding that Burke School was an appropriate placement for M.B. rather than Phillips School. Each of these arguments fails.

The hearing officer properly determined that FCPS met the IDEA’s requirements here. FCPS clearly provided M.B. with an IEP and proposed placement that enabled M.B. to make reasonable progress in light of M.B.’s circumstances. Thus, plaintiffs’ request for reimbursement for M.B.’s 2021-22 school year at Phillips School and their request for funding for M.B.’s placement at Phillips School going forward must be denied.

Plaintiffs’ motion for summary judgment denied. Defendant’s motion for summary judgment granted.

M.B. v. Fairfax County School Board, Case No. 1:22-cv-930, Aug. 22, 2023. EDVA at Alexandria (Ellis). VLW 023-3-499. 25 pp.

VLW 023-3-499

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