United States District Court, D. Maryland
Xinis United States District Judge.
before the court in this Individuals with Disabilities
Education Improvement Act (“IDEA”) case are the
parties' cross-motions for summary judgment. See
ECF Nos. 38 & 43. Plaintiffs appeal the decisions
rendered in M.L. v. Montgomery County Public
Schools, issued July 14, 2016, OAH No. MDSE-MONT-OT-16-069119
(“Decision 1”), and August 14, 2017,
MSDE-MONT-OT-17-14090 (“Decision 2”) by John J.
Leidig, an Administrative Law Judge of the Maryland Office of
Administrative Hearings. The matter has been fully briefed
and the Court, having reviewed the full administrative
record, now rules because no hearing is necessary.
See Loc. R. 105.6. For the reasons below,
Plaintiffs' motion for summary judgment, ECF No. 38, is
DENIED and Defendants' motion for summary judgment, ECF
No. 43, is GRANTED.
The Individuals with Disabilities Education Improvement Act
with disabilities are entitled to a free appropriate public
education, or “FAPE, ” pursuant to the
Individuals with Disabilities Education Improvement Act
(“IDEA”). 20 U.S.C. § 1412(a)(1)(A). A FAPE
provides to disabled children “meaningful access to the
educational process” in “the least restrictive
environment” and is “reasonably calculated to
confer ‘some educational benefit.' ” E.S.
v. Smith, No. PWG-17-3031, 2018 WL 3533548, at *2 (D.
Md. July 23, 2018) (citing Bd. of Educ. of the Henrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192,
207 (1982) (hereinafter “Rowley”)).
Although “the benefit conferred . . . must amount to
more than trivial progress, ” 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 prepare and implement an individualized
educational plan (“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”). The IEP
addresses the student's current educational status,
annual educational goals, the need for special educational
services or other aids necessary to help meet those goals,
and whether the child may be educated in regular school
classroom with non-disabled students. M.C. v. Starr,
No. DKC-13-3617, 2014 WL 7404576, at *1 (D. Md. Dec. 29,
2014) (citing 20 U.S.C. § 1414(d)(1)(A)); see also
J.R. v. Smith, No. DKC 16-1633, 2017 WL 3592453, at *1
(D. Md. Aug. 21, 2017).
play a critical role in the IEP process. They are granted the
opportunity to participate in not only the creation of the
IEP, but are invited to the annual IEP review and any
subsequent meetings to modify the IEP. See 20 U.S.C.
§§ 1414(d)(1)(B)-1415(f); see also M.M. ex rel
DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 527
(4th Cir. 2002). Once an IEP is finalized, parents may accept
or reject it. If parents reject the IEP as failing to provide
a FAPE, they may pursue administrative remedies to include
review of the disputed issue by an Administrative Law Judge
at a Due Process hearing. In the interim, parents may pay for
services out of pocket for placement in a private school and
afterward seek reimbursement from the state. E.S.,
2018 WL 3533548, at *2 (quoting 20 U.S.C. §
1412(a)(1)(C)(iii) and Sch. Comm. of Burlington v.
Dep't of Educ., 471 U.S. 359, 369-70 (1985)). Either
party may challenge the outcome of the Due Process hearing by
filing suit in a district court of the United States or the
appropriate state court. 20 U.S.C. § 1415(i)(2).
this comprehensive remedial scheme as its backdrop, the Court
turns to M.L.'s case.
born in June 2005. At four years old, M.L. was diagnosed with
a speech/language disability, and “her articulation
skills were marked by numerous sound substitutions,
omissions, and distortions that were not age
appropriate.” Request for Due Process, MCPS
Ex. 58. At age six, M.L. was diagnosed with Specific Learning
Disabilities in both reading and written language. MCPS Ex.
2; ML Ex. 12. The next year, MCPS found that M.L. was
eligible for special education services. MCPS Exhs. 3 &
attended kindergarten through third grade at Sligo Creek
Elementary School and participated in its French immersion
program. M.L. also began receiving special education services
that same year. M.L. struggled in the French immersion
program, and beginning in M.L.'s third grade year
(2013-2014), her parents enrolled her at The Academy at Sligo
Creek, a public school providing English-based instruction.
ML Ex. 20.
third grade, M.L. received special education instruction from
Leslie Manzon, a MCPS special educator. M.L. also met three
to four times per week with a Reading Specialist, Stacy
Miller, for 30 minute intervals, and received speech and
language services twice per week.
with M.L.'s progress, her parents hired Weinfeld
Education Group, LLC (“WEG”) as their educational
consultant and advocate. See MCPS Ex. 9. Jennifer
Engel Fisher (“Fisher”), an educational
consultant at WEG, became M.L.'s primary advocate.
M.L.'s parents communicated to WEG that they wished their
daughter to attend The Siena School and for the state to
cover the tuition. MCPS Ex. 9. The Siena School is a private
school located in Maryland that specializes in language-based
learning disabilities. Tr. Vol. 6 at 1313.
fall of 2013, M.L. was evaluated by psychologist Dr. Judith
Trussell of the Kennedy Krieger Institute (“KKI”)
at the parents' request. This evaluation revealed that
M.L. was emotionally stable with adequate self-esteem and
age-appropriate anxiety levels. MCPS Ex. 6; ML Ex. 23;
Decision 2 at ¶ 12. M.L. was found to be in the
“average” range on all components of the Wechsler
Intelligence Scale for Children IV (WISC-IV), except for
perceptual reasoning in which she was found to be below
average. MCPS Ex. 6; ML Ex. 23; Decision 2 at ¶ 13. Dr.
Trussell diagnosed M.L. with a Specific Learning Disability
(SLD) and Adjustment Disorder with anxiety. MCPS Ex. 6; ML
Ex. 23. Dr. Trussell recommended, based on her testing and
review of parent and teacher reports, that M.L. would do best
with direct, intensive special-education instruction in
reading and written expression, and advised that M.L.'s
fine motor skills should be monitored going forward. MCPS Ex.
6; ML Ex. 23.
January 15, 2014 and February 3, 2014, MCPS convened an IEP
meeting to review M.L's progress. M.L.'s mother
attended the IEP meeting with WEG consultant Fisher and legal
counsel. MCPS Ex. 22; ML Exhs. 29 & 30. Also in
attendance were the following individuals: Dianna Jemmott, a
speech language pathologist; Allison Baggott, Sligo
Creek's school psychologist; Conner Pratt, one of
M.L.'s general education teachers; Phil Lynch, Nekesha
Price, and Leslie Manzon, MCPS special education teachers;
Phil Lynch, MCPS special education supervisor; Stacy Miller,
MCPS Reading Specialist; and Diantha Swift, Sligo Creek
principal. MCPS Ex. 22. The meeting participants reviewed
M.L.'s education performance, including teacher reports,
therapy logs, testing scores, and work samples. They also
considered anecdotal information from M.L.'s parents and
teachers. See, e.g. MCPS Exhs. 13, 20, 22; ML Exhs.
25, 27, 28. The meeting participants discussed that M.L. was
reading at a kindergarten level and showing some improvement,
as well as making progress in phonics. M.L's mother also
raised concern regarding M.L's behavioral and emotional
needs, particularly M.L.'s low self-esteem because she
could not read like her peers. Tr. Vol. 6 at 1310-1313; ML
Exhs. 29 & 30.
conclusion of the IEP meetings, MCPS personnel prepared a
draft IEP for the following school year. The draft IEP
proposed 16.5 hours of special education per week consisting
of 13 hours of direct special education in a general
education setting and 3.5 hours of special education outside
the general education setting. It also provided M.L. up to
1.5 hours per week with a speech/language pathologist, and an
additional 20 hours per week of Extended School Year (ESY)
services. M.L's Parents agreed generally with the IEP,
but believed that M.L. should receive 10 hours of direct
special education in a general education setting (a
difference of -3 hours), and 6.5 hours of special education
outside the general education setting (a difference of
hours). Decision 2 at ¶¶ 21-22; see also
Tr. Vol. 1 at 488; ML Exhs. 29, 31.
January 30, 2014, M.L.'s parents applied for her
enrollment at the Lab School of Washington (“the Lab
School”), a private day school for children with
specific learning disabilities. MCPS Ex. 16. The Lab School
teaches approximately 340 students, including roughly 90
elementary school students. The Lab School employs an on-site
speech/language pathologist, psychiatrist, psychologist,
social workers, and occupational therapists. Decision 2 at
¶¶ 40-41, 43. The Lab School complements
traditional reading and writing instruction with a
multi-sensory and experiential approach to learning. Decision
2 at ¶ 53.
in April 2014, M.L.'s parents requested consultation with
MCPS' High-Incident Assistive Technology (HIAT) to
ascertain whether additional resources were available to meet
M.L.'s educational needs. Following the HIAT consult,
MCPS increased M.L.'s weekly special education hours
outside the general education setting from 3.5 hours to 4.75.
MCPS Ex. 34. MCPS then modified M.L.'s IEP to note that
M.L.'s disabilities affected her reading (decoding,
fluency, and comprehension), math (problem solving), written
language, and speech/language (articulation). The finalized
IEP recommended a number of accommodations and supplementary
aids, and set new IEP goals in each category for the 2014-15
school year. MCPS Ex. 34.
presented the revised 2014-15 IEP to the parents at a June 2,
2014 meeting, and on June 7, 2014, MCPS gave the parents
notice of their Procedural Safeguards and Parental Rights
with respect to the IEP. MCPS Ex. 34; Decision 2 at
¶¶ 25 & 28. On June 30, 2014, the parents'
counsel notified MCPS that they rejected the IEP as proposed
and intended to place M.L. “at the Lab School of
Washington for the 2014-15 school year and to seek public
funding for that placement.” Decision 2 at ¶ 31.
On July 18, 2014, MCPS rejected the parents' request for
publicly funded placement at the Lab School, and reiterated
that MCPS could implement the June 2, 2014 IEP. MCPS Ex. 37.
September 2014, M.L. began fourth grade at the Lab School.
Decision 2 at ¶ 38. Shortly into the school year, Lab
School speech and language pathologist, Ms. Eden Springer
(“Springer”), performed several tests on M.L.,
including the Comprehensive Speech Language Assessment, Test
of Word Reading Efficiency-Second Edition (TOWRE-2),
Pathological Awareness Test 2 (PAT2), and the Goldman Fristoe
Test of Articulation-2 (GFTA-2). See MCPS Exhs. 38,
39, 40, 41; ML Ex. 63. Based on this testing, Singer
recommended two 40 minute speech pathology sessions per week,
and “a nurturing atmosphere where [M.L.'s]
linguistic weaknesses and strengths are recognized and
accommodated in every subject area.” Decision 2 at
¶ 49; MCPS Exhs. 42 & 43. On the parents'
request, M.L. also underwent an occupational therapy
evaluation between September 30 and December 10, 2014, which
demonstrated that M.L. had subtle, but not pervasive,
difficulties in areas of fine motor precision and ...