United States District Court, D. Maryland
M.C., ET AL.
JOSHUA STARR, ET AL.
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this action arising under the Individuals with Disabilities Education Act ("IEDA"), 20 U.S.C. §§ 1400 et seq., are the motion for summary judgment filed by M.C. and her parents, J.J.C. and J.F.C. (collectively, "Plaintiffs") (ECF No. 12), and a cross motion for summary judgment filed by Montgomery County Board of Education and its Superintendent Joshua Starr (collectively, "Defendants" or Montgomery County Public Schools "MCPS") (ECF No. 15). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs' motion for summary judgment will be denied, and Defendants' cross motion for summary judgment will be granted.
I. The Individuals with Disabilities Education Act
In order to understand the procedural posture of this case, a short summary of the IDEA is in order. The IDEA, 20 U.S.C. §§ 1400 et seq., and accompanying regulations, 34 C.F.R. § 300 et seq., require all states that receive federal funds for education to provide each child between the ages of three and twenty-one who has a disability, with a free, appropriate public education ("FAPE"). 20 U.S.C. § 1412(a)(1)(A). Maryland also has regulations governing the provision of FAPEs to children with disabilities in accordance with the IDEA. Md. Code Regs. Tit. 13A, § 05.01.
The FAPE guaranteed by the IDEA must provide a disabled child with meaningful access to the educational process. See Bd. of Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192 (1982). The FAPE must be reasonably calculated to confer "some educational benefit" on the disabled child. Id. at 207. The benefit must also be provided in the least restrictive environment ("LRE") appropriate to the child's needs, with the disabled child participating to the "maximum extent appropriate" in the same activities as his or her nondisabled peers. 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.550. The IDEA does not require that a school district provide a disabled child with the best possible education, Rowley, 458 U.S. at 192, or that the education maximize each child's potential, see Hartmann v. Loudoun Cnty. Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1997). The benefit conferred, however, must amount to more than trivial progress. See Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D.Md. 1994) ( Rowley's "some educational benefit prong will not be met by the provision of de minimis, trivial learning opportunities.") ( citing Hall v. Vance Cnty. Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).
To assure delivery of a FAPE, the IDEA requires a school district to provide an appropriate Individualized Education Program ("IEP") for each child determined to be learning disabled. 20 U.S.C. § 1414(d). The student's IEP is formulated by a team ("IEP team") consisting of the parents or guardian of the child, a representative of the school district, the child's regular and special education teachers, an individual who can interpret results and evaluations of the child, and, when appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B); Md. Code Regs. Tit. 13A, § 05.01.07(A). The IEP must state the student's current educational status, annual goals for the student's education, which special educational services and other aids will be provided to the child to meet those goals, and the extent to which the child will be "mainstreamed, " i.e., spend time in regular school classroom with non-disabled students. 20 U.S.C. § 1414(d)(1)(A).
The IDEA provides a series of procedural safeguards "designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions." MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 527 (4th Cir. 2002) (internal citations and quotation marks omitted); see also 20 U.S.C. § 1415. Among those safeguards, a parent must be provided prior written notice of a decision to propose or change the educational placement of a student. Md. Code Regs. Tit. 13A, § 05.01.13(B). A parent may also request a meeting at any time to review and, as appropriate, revise the student's IEP. Md. Code Regs. Tit. 13A, § 05.01.08(B)(3).
If the parents are not satisfied with the IEP, they may "present complaints with respect to any matter related to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 1415(b)(6). After such a complaint has been received, the parents are entitled to request a due process hearing conducted by the state or local educational agency. 20 U.S.C. § 1415(f). In Maryland, the Maryland Office of Administrative Hearings conducts the due process hearing. Md. Code Ann., Educ. § 8-413; Md. Code Regs. Tit. 13A, § 05.01.15(C)(1). Any party can then appeal the administrative ruling in federal or state court. Md. Code Ann., Educ. § 8-413(h).
When a FAPE is not provided to a disabled student, the student's parent may place the child in a private school and then seek tuition reimbursement from the state. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). To establish entitlement to reimbursement for unilateral private placement,  certain conditions must be met. Title 20 § 1412(a)(1)(C)(iii), states that:
If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.
Id. (emphasis added). Under 20 U.S.C. § 1412(a)(10)(C)(iii), reimbursement may be reduced or denied if the parents fail to give the public school district notice that they are rejecting the district's proposed FAPE placement, removing their child from public school, or if the parents take some other unreasonable action. Finally, in order to receive reimbursement, the private education services obtained by the parents must be appropriate to meet the child's needs. Sch. Comm. of Burlington, 471 U.S. at 370.
A. Factual Background
M.C. is a fifteen-year old girl, who grew up in Maryland with her parents, J.J.C. and J.F.C. As early as pre-school, she began having trouble with paying attention, tics, and behavioral meltdowns. M.C.'s tics included blinking her eyes, shrugging her shoulders and hopping. In 2005, when M.C. was in first grade, her parents first took her to see a psychologist due to her attention problems, and she was diagnosed with attention deficit hyperactivity disorder ("ADHD"). Her parents withdrew M.C. from public school after second grade and enrolled her in McLean School of Maryland.
Throughout elementary school her symptoms intensified. In 2009, as M.C. started fifth grade, she developed separation anxiety and her behaviors worsened. In October 2009, she was admitted to Johns Hopkins Hospital for several weeks due to her increasing symptoms. She was diagnosed with ADHD, anxiety disorder, mood disorder, auditory processing disorder, poor coping skills, and Tourette Syndrome. When M.C. was discharged in November 2009, she was referred to a day treatment program at Dominion Hospital in Falls Church, Virginia, which she attended throughout the remainder of the year. While at Dominion, M.C. was treated for mood stability and potential for self-harm.
In the fall of 2010, M.C. started sixth grade and her condition deteriorated. She could not function in school and was having frequent meltdowns, so her parents withdrew her in November 2010 for medical reasons and she started receiving Home and Hospital Teaching until February 2011. She was then enrolled in a small private school for the remainder of the 2010-2011 school year, but she did not often attend and instead received tutoring at home. For seventh grade, the 2011-2012 school year, M.C.'s parents homeschooled her using a computer based school program and a home school teacher.
In early 2011, M.C. was diagnosed as having Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcus infection ("PANDAS"). PANDAS is a "subset of childhood obsessive-compulsive disorders [("OCD")] and tic disorders believed to be caused by the streptococcus infection." (ALJ Decision, at 13). M.C.'s symptoms worsened in spring and summer 2012, and M.C. was admitted to Rogers Memorial Hospital ("Rogers") in Oconomowoc, Wisconsin for treatment to reduce her tics, manage her medicine, and improve her mood lability. M.C. was a patient at Rogers from August 8, 2012 until November 27, 2012. While at Rogers, M.C.'s treating psychiatrist, Dr. Stephanie Eken, ordered a psychological evaluation of M.C., and psychologist Dr. Denise Reese diagnosed her as having: "ADHD, generalized anxiety disorder, Tourette disorder, OCD, separation anxiety (by history), PANDAs, and severe problems in the academic and social environments." ( Id. at 14). Dr. Reese made several therapeutic recommendations, including that M.C. receive an IEP, because her severe OCD and PANDAS made it hard for her to function in a regular school setting. Dr. Reese believed that M.C. would do best in a "therapeutically oriented school where she receives constant individual attention from someone trained in both therapeutics and educational strategies[, ]" but she did not specifically recommend that M.C. attend a residential school. ( Id. at 15). Upon discharge, Dr. Eken recommended that she attend a therapeutic boarding school, such as the Glenholme School.
Immediately upon M.C.'s discharge from Rogers on November 27, 2012, M.C. and her parents flew to Connecticut to interview for admission at Devereux Glenholme School ("Glenholme"). M.C. was accepted and began attendance on November 30, 2012. After M.C.'s admission, she was evaluated by Glenholme's psychiatrist, Dr. Frank Ninivaggi, who diagnosed her as having an "anxiety disorder, Tourette Syndrome, OCD, ADHD (by history), PANDAS, and psychosocial stressors of chronically impaired social skills and poor academic performance." ( Id. at 15).
B. The IEP Process
On November 1, 2012, while M.C. was a patient at Rogers, her parents requested that MCPS evaluate M.C. for special education services. On December 11, 2012, MCPS held an IEP meeting to review M.C.'s application for special education services. At this meeting, M.C.'s mother reported that M.C. was in the process of being discharged from Rogers and that she was going immediately to Glenholme, a residential school. The IEP team ordered educational and psychological evaluations of M.C. An evaluation was performed from January 17-18, 2013 by Suzanne Shacoski, a school psychologist with MCPS, who traveled to Glenholme to interview, evaluate, and review M.C.'s educational file. She also reviewed previous reports, and evaluations from M.C.'s various psychologists, psychiatrists, and medical doctors. Ms. Shacoski determined that M.C. met the criteria for a disability pursuant to the IDEA as Other Health Impaired ("OHI"), meaning she has limited strength, or alertness due to chronic or acute health problems. She also suggested that the IEP team consider whether M.C. has an emotional disability. She made no recommendation regarding a day school program versus a residential program, but she made several recommendations regarding M.C.'s education and treatment.
On February 6, 2013, MCPS held a second IEP team meeting to review Ms. Shacoski's report. The IEP team determined that M.C. was eligible for special education services as a student with OHI, but that she did not meet the criteria for an emotional disability ("ED"). On February 25, 2013 and May 7, 2013, the IEP team reconvened. At the February 25 meeting, the team discussed M.C.'s IEP goals and objectives, and determined that she would require thirty hours of special education per week, i.e., zero hours in the general education program. (MCX-53-29). Because M.C. was in need of a full-time special education setting, the IEP team referred her to MCPS's Central IEP team ("CIEP team"). (ECF No. 12-1, at 13). Meanwhile, the parties continued to obtain additional reports and evaluations of M.C.
On May 7, 2013, the CIEP team met and concluded that M.C. required small structured classes throughout the day and on-site mental health support, among other services. The team considered numerous placements for M.C., including: general education classes at Frost Middle School ("Frost"); ED Cluster services at Richard Montgomery High School; Bridge Services at Winston Churchill High School; public day school; residential schools; and the John L. Gildner Regional Institute for Children and Adolescents ("RICA"). The team found that M.C.'s needs could be met in a therapeutic day school, despite the concerns of M.C.'s parents' and insistence that M.C. remain at Glenholme. It concluded that RICA was the appropriate placement for her because it could deliver the MCPS curriculum and mental health support she required. Although M.C.'s parents disagreed with this placement, they agreed to cooperate with the referral process.
On May 14, 2013, George Moore, the Coordinator of MCPS's Placement and Assessments Unit, wrote to M.C.'s parents, indicating that RICA must be investigated as a fit for M.C. He stated that a pre-admissions interview was scheduled for M.C., and that the interview could be conducted by telephone. He indicated that M.C. could be placed in the residential program based on clinical recommendations from the Maryland Department of Health and Mental Hygiene ("DHMH"), but that initially the IEP team had recommended the day program at RICA. M.C.'s parents and her psychotherapist, Dr. Kimberly Ernst, then visited RICA. They thought RICA was an inappropriate placement for M.C. and rejected it.
On June 11, 2013, M.C.'s parents received a letter from MCPS asking to reconvene an IEP meeting to discuss other suitable placement options for M.C.; in response, her parents authorized referrals for M.C. to other placements without the need for an additional IEP meeting. Thereafter, on June 26, 2013, MCPS notified Frost that it was considering placing M.C. there. M.C.'s parents and Dr. Ernst then visited Frost and rejected it. M.C.'s parents received a copy of her rejection from Frost on July 18, 2013. (ECF No. 12-1, at 15). On July 25, 2013, Mr. Moore followed up with RICA to get additional information on why M.C. was rejected. The Director of Clinical Services at RICA responded on July 29, 2013 that "the decision to reject her from our program was based on (1) verbal reports from her parents and therapist about her current presentation of emotional fragility, difficulty transitioning and unpredictable triggers, and (2) [o]ur preadmission interviewer Joan Gottesman, LCSW-C was recommended against having a telephone interview with M.C., by the parents and therapist, given her fragility and minimal progress." ( Id. at 15-16) ( citing MCX-82-1).
On July 30, 2013, MCPS's counsel sent a letter to Plaintiffs, indicating that an interview with M.C. would be necessary. He stated that Frost and RICA had rejected M.C. because M.C.'s parents had declined to make her available for an interview. (ECF No. 12-1, at 16). M.C.'s parents responded on August 12, 2013, emphasizing that MCPS counsel had mischaracterized the events and reiterated that "all experts involved strongly recommended against the interview process." ( Id. ).
C. Procedural Background
On June 21, 2013, Plaintiffs filed a due process complaint with the Maryland Office of Administrative Hearings (the "OAH"), requesting a hearing to review the services and placement offered to M.C. by MCPS for the 2012-2013 and the 2013-2014 school years. M.C.'s parents alleged that MCPS failed to "propose an appropriate educational program or placement for M.C. and [sought] reimbursement for her placement at Glenholme." (ECF No. 12-1, at 16). The parties waived the prehearing resolution meeting. The Administrative Law Judge D. Harrison Pratt ("ALJ"), held a hearing on the following days: September 30, October 1-3, and October 7, 2013. The ALJ framed the issues presented as follows:
(1) Did MCPS offer [M.C.] a free appropriate public education in the least restrictive environment for the 2012-2013 and 2013-2014 school years?
(2) If not, was [M.C.'s] unilateral placement at the Glenholme School (Glenholme) for the 2012-2013 and the 2013-2014 school years appropriate?
(ALJ Decision, at 2). On November 6, 2013, the ALJ issued his opinion. He concluded that M.C.'s parents, who had the burden of proof, failed to show:
1. That delay by [MCPS] denied [M.C.] a FAPE.
2. That MCPS failed to work with the Parents in identifying a ...