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E.S. v. Smith

United States District Court, D. Maryland, Southern Division

July 23, 2018

E.S., et al., PLAINTIFFS,



         E.S. (“Student”), a minor, by and through his Parents, B.S. and M.S. (“Parents”), who also joined their son as Plaintiffs, filed suit against Jack R. Smith in his official capacity as Superintendent of Montgomery County Public Schools (“MCPS”) and Montgomery County Board of Education (“the Board”). Compl., ECF No. 1. Plaintiffs claim that Defendants failed to provide the Student, who has “Multiple Disabilities, including an Autism Spectrum Disorder (‘ASD'), Attention Deficit Hyperactivity Disorder (‘ADHD'), and an Anxiety Disorder, ” with “the Free Appropriate Public Education (‘FAPE') to which he is entitled under the Individuals with Disabilities Education Improvement Act (‘IDEA'), 20 U.S.C. §§1400 et seq.Id. ¶¶ 1, 7. They ask the Court to reverse the decision of the administrative law judge (“ALJ”) who reviewed the Student's individualized education program (“IEP”) and MCPS's decision to place him in the Bridge Program at Gaithersburg Middle School and concluded that the IEP and placement provided an appropriate education for E.S. in the least restrictive environment, as required by the IDEA. Id. ¶¶ 1, 57-61.

         According to Plaintiffs, the IEP fell short because it did not include “a full-time therapeutic placement, ” and the Bridge Program was not appropriate for the services the IEP required, which included “twenty-nine hours and twenty minutes of specialized instruction outside the general education setting, with the option to ‘self-select' lunch in the general education setting.” Id. ¶¶ 57-61. In a 90-page opinion, the ALJ “agree[d] with MCPS that the IEP and placement developed by the school system is appropriate and reasonably calculated to meet the individual needs of the Student, ” ALJ Dec. 86, and denied the parents the relief they requested, namely “funding and placement from MCPS for E.S. at the [private] Ivymount School (‘Ivymount'), ” Compl. ¶ 1.

         Plaintiffs argue that the ALJ erred in both his factual findings and legal analysis, including “failing to properly assess the credibility of witnesses and completely ignoring evidence of how E.S. has responded to his private placement at Ivymount.” Pls.' Mem. 2.[1] They also contend that MCPS's “predetermination of E.S.'s placement . . . was explicitly admitted under oath by one MCPS witness and at a later IEP meeting by MCPS staff in front of the parents and their educational consultant, ” yet “the ALJ literally disregarded” the evidence. Id. But, giving due weight to the ALJ's factual findings and from my own de novo review of the entire record, I find that, E.S.'s IEP and placement were appropriate and reasonably calculated to meet his needs. Consequently, even if, arguendo, E.S.'s placement in the Bridge Program was predetermined, any error was harmless. Accordingly, I conclude that Plaintiffs are not entitled to judgment as a matter of law and Defendants are. Therefore, I will deny Plaintiffs' Motion for Summary Judgment, grant Defendants' Cross-Motion for Summary Judgment, and close this case.

         Free Appropriate Public Education

         Children with disabilities are entitled to a free appropriate public education, or “FAPE, ” pursuant to the IDEA. 20 U.S.C. § 1412(a)(1)(A). Maryland regulations also “govern[] the provision of FAPEs to children with disabilities in accordance with the IDEA.” M.C. v. Starr, No. DKC-13-3617, 2014 WL 7404576, at *1 (D. Md. Dec. 29, 2014) (citing Md. Code Regs. Tit. 13A, § 05.01). A FAPE is an education that provides “meaningful access to the educational process” in “the least restrictive environment” and is “reasonably calculated to confer ‘some educational benefit'” on the child with a disability. Id. (citing Bd. of Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 207 (1982)). “The benefit conferred . . . must amount to more than trivial progress, ” but “[t]he IDEA does not require that a school district provide a disabled child with the best possible education . . . .” Id. (citing Rowley, 458 U.S. at 192; Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D. Md. 1994)). Rather, a school must provide an Individualized Education Program (“IEP”) that is “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017) (noting that “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal”).

         To this end, each child with a disability must have an IEP that “state[s] 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.” M.C., 2014 WL 7404576, at *1 (citing 20 U.S.C. § 1414(d)(1)(A)); see Endrew F., 137 S.Ct. at 994.

The IEP is “the centerpiece of the statute's education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). A comprehensive plan prepared by a child's “IEP Team” (which includes teachers, school officials, and the child's parents), an IEP must be drafted in compliance with a detailed set of procedures. [20 U.S.C.] § 1414(d)(1)(B) (internal quotation marks omitted). These procedures emphasize collaboration among parents and educators and require careful consideration of the child's individual circumstances. § 1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. Rowley, 458 U.S., at 181.

Endrew F., 137 S.Ct. at 994. If the IEP team members disagree about the contents of an IEP, they can try to “resolve their differences informally, through a ‘[p]reliminary meeting,' or, somewhat more formally, through mediation, ” and if they do not reach agreement, they can participate in “a ‘due process hearing' before a state or local educational agency.” Id. (quoting 20 U.S.C. §§ 1415(e), (f)(1)(A), (B)(i), (g)). Then, “the losing party may seek redress in state or federal court.” Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

         In Maryland, parents may voice disagreement with their children's proposed IEPs and request due process hearings before the Maryland Office of Administrative Hearings to address their concerns. See M.C., 2014 WL 7404576, at *2 (citing 20 U.S.C. § 1415(b)(6), (f); 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.” Id. (citing Educ. § 8-413(h)). Additionally, parents may place their children in a private school that is “appropriate to meet the child's needs” and “seek tuition reimbursement from the state, ” but only “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. (quoting Title 20 § 1412(a)(1)(C)(iii); citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985)) (emphasis from M.C. removed).

         Background [2]

         Much of the background to this case is undisputed, and the parties provided it to the Court in a Joint Stipulation of Undisputed Facts.[3] ECF No. 16. The Student initially was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”) in November 2011, while he was in second grade, and a Section 504 Plan that “provided a variety of accommodations in the classroom” was implemented. Id. at 1. A few months later, he “was diagnosed with Generalized Anxiety Disorder (“GAD”), ADHD (combined type), ODD, and Severe Mood Dysregulation.” Id. at 1-2. Dr. Kenneth E. Towbin found that the Student “also [met] the criteria for a diagnosis of Social Learning Disorder” and “stated that he could ‘stretch to say' that E.S. ha[d]s a mild Pervasive Developmental Disorder - Not Otherwise Specified, a diagnosis most consider to be part of the larger group of Autism Spectrum Disorder (ASD), but opined that Social Learning Disorder was a more accurate diagnosis.” Id. at 2. He “recommended that the primary focus of his IEP should be for his anxiety, Social Learning Disorder, and pragmatic language impairments.” Id.

         Following “concerns about E.S.'s aggressive behavior, completion of written tasks, social skills, difficulty managing transitions, and anxiety, ” the Student was evaluated in September 2012 by the psychologist at his elementary school, who concluded that his “symptoms were consistent with GAD, ADHD, and mood dysregulation” and that he “met the criteria for an emotional condition that exhibits the following characteristics: ‘(1) inappropriate types of behavior or feelings under normal circumstances and (2) a tendency to develop physical symptoms or fears associate[d] with personal or school problems.'” Jt. Stip. Facts 2. The resource teacher at the school also evaluated him; E.S. had “scores of very advanced in letter-word identification, passage comprehension, reading vocabulary, applied problems, quantitative concepts, brief reading, reading comprehension, and math reasoning, and average to high average scores in all other areas assessed.” Id. at 2-3. Educational consultant Rich Weinfeld, whom the Parents hired, also evaluated E.S. in Fall 2012 and “provided written input to the IEP team.” Id. at 3.

         The IEP team at his elementary school met and placed him in the Social and Emotional Support Services Program (“ED Program”) at Great Seneca Creek Elementary School during third grade, and he stayed in that program through the end of fifth grade. Id. There, “he received special education services under the primary disability of Other Health Impairment [‘OHI'].” Id. In September 2014, a school psychologist evaluated him and concluded that his “reasoning abilities on verbal tasks are generally in the Very Superior range, while his nonverbal reasoning abilities are significantly lower and in the High Average range, ” and that he “had symptoms of ADHD and mood disorder, ” as well as “mild ASD and learning difficulties.” Id. A December 2014 report that a behavior support teacher prepared “reflected that E.S. performed from Average to Superior in all academic areas, ” but needed classroom supports to “complete assignments” and “strengthen problem-solving.” Id. at 3-4.

         E.S.'s May 28, 2015 IEP “reflected a primary disability of Multiple Disabilities, consisting of a Specific Learning Disability and ASD, ” had “goals in behavior, organization, math, and oral and written expression, and “called for four general education co-taught classes per day (math, science, social studies, and physical education), and three self-contained classes per day (English, resource, and social skills).” Jt Stip. Facts 4. E.S.'s “appropriate placement in the least restrictive environment for E.S. was the Asperger's Program at Ridgeview Middle School (‘Ridgeview').” Id.

E.S. attended sixth grade at Ridgeview for the 2015-2016 school year. Decision at 19. E.S. had frequent behavioral episodes during his first three months at Ridgeview. Decision at 20. On November 5, 2015 the Parents and Ridgeview staff met to discuss the components of an updated Functional Behavior Assessment (“FBA”) and Behavioral Intervention Plan (“BIP”), as well as revise the IEP. MCPS-4, 5 [MCPS Hr'g Ex. 4, at 5]. The behaviors addressed by the FBA/BIP included unsafe behavior, such as aggression to peers/staff and crafting objects into what seems to be a weapon in order to “intimidate, ” and verbal threats/inappropriate language. MCPS-4. The team also made revisions to the IEP. MCPS-5.
An annual review meeting was held on March 3, 2016. P-20. The March 3, 2016 IEP included goals in behavior (including a general behavior goal, plus one in safety and social emotional problem-solving), social skills (including peer interaction and group participation), task completion, written language and organization. Id. The IEP team, after reviewing the available data, including data which showed that E.S. was not making sufficient progress on his goals, recommended that the appropriate placement in the least restrictive environment for E.S. was the Bridge Program (“Bridge”) at Gaithersburg Middle School. Id. After hearing the concerns of the parents regarding E.S. transferring schools in the middle of the school year, the team agreed to allow E.S. to remain at Ridgeview for the remainder of the school year, and then transfer to Bridge at the start of the 2016-2017 school year. Id. The parents also requested to visit the Bridge program “in order to be better informed about the proposed placement.” Id. The IEP called for continuing services “as is” at Ridgeview for the remainder of the 2015-2016 school year, and, beginning the 2016-2017 school year, called for self-contained English, math, social studies, PE/Health, social skills, resource; a supported science class; and access to counseling. Id.
Mr. Weinfeld observed E.S. in his classroom at Ridgeview on April 13, 2016, in E.S.'s math and World Studies classes. P-25. Mr. Weinfeld wrote a report of his observation. Id. In math, Mr. Weinfeld observed that E.S. had a paraeducator working with him and seemed to respond well. Id. In World Studies class, the teacher reported that E.S. always does well in his class. Id. In his report, Mr. Weinfeld opined that E.S. needed a program designed for students with “Asperger's” who are capable of challenging academic work while providing supports for dealing with frustration. Id.
On June 2, 2016, Dr. Lance Clawson wrote a Psychiatric Second Opinion for E.S. P-31. Dr. Clawson opined that E.S. “requires a school placement that has the intensive social training and extensive behavioral expertise to address his ASD related ‘mind blindness' juxtaposed onto his intense vigilance regarding how others may be thinking about him.” Id. Dr. Clawson mentioned Ivymount as “one such local institution.” Id.
On June 15, 2016, E.S. was suspended for four days following a behavioral incident involving physical aggression toward another student, and failure to listen to or follow adult directions. P-33.
An IEP periodic review meeting was next held at Ridgeview on July 18, 2016. P-37. The team proposed classroom instruction outside of general education for 7 periods per day [that is, 29 hours and 20 minutes per week of special education in self-contained classrooms], including a 30 minute lunch, although E.S. could “self-select” general education lunch “if he chooses.” Id. The IEP also called for weekly counseling sessions [that is, four 45-minute sessions per month]. Id. The team again determined that the appropriate placement in the least restrictive environment for E.S. was the Bridge Program at Gaithersburg Middle School. Id. The parents and Mr. Weinfeld shared that they did not believe that Bridge was an appropriate placement for E.S. and requested referral to the Central IEP Team for placement in a program with a more therapeutic component. Id.

Id. at 4-6. Notably, the Parents did not object to any aspect of the IEP other than E.S.'s placement. See Prior Written Notice from July 18, 2016 IEP Mtg., P-37, at 68 (Parents' Exs. 432) (“Document any parental requests that were considered, but were not agreed to in this IEP: Parents disagree with the placement in Bridge services and want a referral to CIEP [4] for a program with a more therapeutic component.”).

         The Parents applied for E.S to attend Ivymount, and he was accepted there in August 2016. Jt. Stip. Facts 6.

On August 10, 2016, the parents served notice of their intent to place E.S. at Ivymount for the 2016-17 school year and requested that MCPS fund his placement there. P-40. On August 25, 2016, MCPS responded, declining to place E.S. at Ivymount and stating that a FAPE had been offered for the 2016-17 school year. Id. E.S. began the Model Asperger's Program (“MAP”), at Ivymount in August 2016. Decision at 6.
. . .
On February 21, 2017, the parents filed a due process hearing request challenging the appropriateness of the school system's proposal for E.S. to attend Bridge, and seeking reimbursement for his placement at Ivymount. P-1. On March 7, 2017, the parents filed an unopposed motion to amend their due process hearing request to include a more accurate, “description of the proposed solution.” Id. The parents' motion was granted on March 10, 2017. Decision at 1. A due process hearing was held on May 22, 24, 25, 30, 31, and June 17, 2017. Decision at 2.

Jt. Stip. Facts 6, 8.

         The ALJ issued a Decision on July 12, 2017, making the following findings of fact regarding the July 18, 2016 IEP:

158. The July 18, 2016 IEP team considered the requirement that E. be placed in the least restrictive environment, and whether the least restrictive environment met E.'s individual needs. It considered the services and supports at E.'s home school, (John Poole Middle School), the services and supports at the Ridgeview Asperger's Program, and the services and supports available for E. at the Bridge Program. The IEP teams also considered the challenges E. continued to face in succeeding in a general education population, and his progress toward IEP goals and objectives in a self-contained environment.
All Self-contained Classes
159. The July 18, 2016 IEP provided for E. to attend a self-contained setting for all seven daily periods of classroom instruction, with a special education classroom teacher as his primary provider. The July 18, 2016 IEP provided that E. would participate with non-disabled peers during transition, during locker room with adult support, and that E. had the option of participating with non-disabled peers during lunch.
Addition of Related Services
160. In addition to transportation to and from school with adult support, which was also in the March 3, 2016 IEP, the July 18, 2016 IEP provided that E. would receive forty-five minutes a week of counseling, with the school social worker as primary provider.
161. The July 18, 2016 IEP provided that placement would be at the Bridge Program.
162. The July 18, 2016 IEP was in conjunction with, the revised BIP of June 21, 2016, which provided for the addition of a team of staff to support E. during critical incidents, and access to staff with expertise in supporting social-emotional problem solving.
163. At the July 18, 2016 IEP meeting, the Parents did not object to the goals, objectives, supports and accommodations, or supplementary aids in the IEP. The Parents voiced that they did not consider the Bridge Program a good fit for E.
The Bridge Program
164. The focus of the Bridge Program (program) is to work with students to make changes in behavior to act more ...

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