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M.L. v. Smith

United States District Court, D. Maryland

August 7, 2018

M.L., et al., Plaintiffs,
v.
JACK R. SMITH, et al., Defendants.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge.

         Pending 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.

         I. BACKGROUND

         a. The Individuals with Disabilities Education Improvement Act (IDEA)

         Children 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).

         Parents 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).

         With this comprehensive remedial scheme as its backdrop, the Court turns to M.L.'s case.

         b. Factual History[1]

         M.L was 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 & 5.

         M.L. 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.

         During 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.

         Displeased 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.

         In the 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.

         On 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.

         At the 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.

         On 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.

         Sometime 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.

         MCPS 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.

         In 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 ...


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