United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
(“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.
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.
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. 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.
Appropriate Public Education
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
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
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)).
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).
the background to this case is undisputed, and the parties
provided it to the Court in a Joint Stipulation of Undisputed
Facts. 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
“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.
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.
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
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.
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
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  for a
program with a more therapeutic component.”).
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.
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