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S.M. v. Arlotto

United States District Court, D. Maryland

September 14, 2018

S.M., M.M., and B.B., Plaintiffs,
v.
GEORGE ARLOTTO, et al., Defendants.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         Plaintiffs S.M., a minor student, and his parents M.M. and B.B. (collectively, “Plaintiffs”) bring this action against Anne Arundel County Board of Education and George Arlotto (collectively, “Defendants”), challenging the decision of Administrative Law Judge Daniel Andrews of the Maryland Office of Administrative Hearings dismissing Plaintiffs' Due Process Complaint and determining that S.M. was not denied a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq., for his third, fourth, and fifth-grade school years. Defendants have filed a cross-motion for summary judgment, submitting that the judgment should be upheld in their favor. The parties' submissions and the full administrative record have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the following reasons, Plaintiffs' Motion for Summary Judgment (ECF No. 11) is DENIED and Defendants' Motion for Summary Judgment (ECF No. 16) is GRANTED, and this Court accordingly upholds the decision of the Administrative Law Judge.

         BACKGROUND

         I. The Individuals with Disabilities Education Improvement Act (“IDEA”)

         Congress enacted the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq., “to ensure that all children with disabilities have available to them a free appropriate public education [(“FAPE”)] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” § 1400(d)(1)(A); Fry v. Napoleon Community Schools, 137 S.Ct. 743, 748 (2017). To ensure the delivery of a FAPE, the IDEA requires a school district to provide an Individualized Education Program (“IEP”) for each child determined to be learning disabled. 20 U.S.C. § 1414(d). As the United States Supreme Court recently stated in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988 (2017), “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” 137 S.Ct. at 999.

         Under this standard, the IDEA does not “require that a school district provide a disabled child with the best possible education.” M.L. v. Smith, No. PX-16-3236, 2018 WL 3756722, at *1 (D. Md. Aug. 7, 2018) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034 (1982)). The “fact-intensive exercise” of creating an IEP is “informed not only by the expertise of school officials, but also by the input of the child's parents or guardians.” Endrew F., 137 S.Ct. at 999. “[R]eview of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Id. (emphasis in original).

         The IEP document itself “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 [a] regular school classroom with non-disabled students.” M.L., 2018 WL 3756722, at *1 (citations omitted). On the latter point, the IDEA contains a “least restrictive environment” provision that states:

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

20 U.S.C. § 1415(a)(5). Parents can accept or reject a finalized IEP. If the parents reject the IEP, they may file a Due Process complaint with an Administrative Law Judge (“ALJ”). § 1415(f). While waiting for the disposition of that proceeding, parents may enroll their child in private education and seek reimbursement from the state. M.L., 2018 WL 3756722, at *1.

         Finally, either party may challenge the decision of the ALJ by filing suit in the appropriate state court or district court of the United States. § 1415(i).

         II. Factual Background[1]

         S.M. was born in March of 2006. (P. Exh. 1.) At all relevant times, Anne Arundel County Public Schools (“AACPS”) has been responsible for his education. (Id.) Prior to first grade, S.M. was identified by AACPS as a student who qualified for an Individualized Education Program (“IEP”) under the IDEA. The Plaintiffs challenge the appropriateness of the IEPs that AACPS provided S.M. for his 2014-2015, 2015-2016, and 2016-2017 school years (third through fifth grade). While the Parents were barred by the applicable statute of limitations from asserting a Due Process claim related to S.M.'s IEP for the 2013-2014 school year (second grade), [2] that was S.M.'s last year in AACPS and is discussed below as relevant background information.

         a. 2013-2014 School Year (Second Grade)

         For S.M.'s second grade school year, 2013-2014, AACPS established an IEP that identified him as having a primary disability of developmental delay and his affected areas as fine motor, reading, math, written expression, and requisite learning.[3] (P. Exh. 3.) Under Present Level of Academic Achievement and Functional Performance for each school subject matter, the IEP noted that S.M. was on grade level for (i) reading, (ii) math, (iii) written expression, and (iv) requisite learning skills, although the IEP noted that he had difficulty competing a task without a verbal prompt and remaining focused in a large group setting. (Id.) The IEP then provided that S.M. would receive the following services at Davidsonville Elementary, S.M.'s home school:

• 7.5 hours of special education services per week in a co-taught, general education setting for language arts (2.5 hours), math (4 hours), and requisite learning (1 hour)
• Instructional and testing accommodations and several supplementary aids, services, program modifications, and supports.
• 30 minute occupational therapy sessions twice per month.

         The “co-taught” classes contained both a general education teacher and a special education teacher who provided particularized instruction to the special education students. (May 19, 2017 Tr. at 55-56.) The instructional and testing accommodations included a scribe for writing, extended time and multiple or frequent breaks, and reduced distractions for S.M. (P. Exh. 3.) Among the supplementary aids, services, programs modifications and supports provided were check for understanding, repetition of directions, have S.M. paraphrase directions/information, preferential seating in the front and center, monitor all work with frequent check ins, use of alternative paper, reduce information on the page to avoid visual overload, enlarge font, provide visual and physical breaks, and use of guided reader. (Id.) Plaintiffs assert, however, that it quickly became apparent that “these services were woefully inadequate and inappropriate for addressing S.M.'s unique needs.” (ECF No. 11 at 6.)

         There were at least five IEP team meetings during S.M.'s second grade year. (P. Exhs. 6, 9, 13, 18, 34.) In addition, a communication log was instituted between the school and Parents. The IEP Reports reflect that the Parents expressed concerns about S.M.'s progress in math and language arts. During the October 29, 2013 team meeting, the parties discussed S.M.'s score on the Dynamic Indicators of Basic Early Literacy Skills (“DIBELS”) Assessment, in which S.M. scored “CORE, ” meaning he was working at grade level. (P. Exh. 9.) A few months later, during the February 11, 2014 meeting, AACPS noted that S.M. was also considered an on grade level reader. (P. Exh. 13.) The Parents noted concerns, however, about S.M. meeting his IEP goals for the year and grasping the regular education curriculum. (Id.) The Parents also expressed concerns that S.M. was not consistently receiving some of his instructional and testing accommodations. (P. Exh. 5.)

         In March of 2014, the Parents sent S.M. for a neuropsychological evaluation by Dr. Julie Newman at the Children's National Medical Center. (P. Exh. 17.) In her findings, Dr. Newman noted that S.M. “had difficulty with task persistence, and would tend to ‘give up' easily. However, he would put forth additional effort when prompted/encouraged, albeit reluctantly.” (Id. at 3.) Dr. Newman concluded that S.M. had relative weaknesses in executive function, phonological awareness, visual-motor integration, and sustaining attention and effort, although she determined that S.M. did not currently meet the criteria for Attention Deficit Hyperactivity Disorder. (Id. at 4, 6.) She also concluded that S.M. had relative strengths in overall cognitive reasoning/intelligence, language, visual-spatial, and memory abilities. (Id. at 6.) Of her several school-based recommendations, Dr. Newman stated “[S.M.] would be best suited to a medium sized class (i.e. 12-18 students) with increased access to individualized instruction. Placement in a larger (i.e. ≥ 20 students) class is not an appropriate learning environment.” (Id. at 7.)

         On June 17, 2014, AACPS and the Parents met for an IEP meeting to review S.M.'s IEP and make any necessary revisions. (P. Exh. 34.) S.M.'s Parents brought an educational consultant, Jenner Engel Fisher. (Id.) The parties discussed the goals and objectives of the IEP, and Ms. Fisher expressed concern about the school's accommodations for S.M. (Id.) When the Parents subsequently received a copy of the draft 2014-2015 IEP, they requested additional accommodations and supplementary aids and services and noted concerns including “class size - can [S.M.] be successful in a class of 25 kids.” (P. Exhs. 35, 36.)

         b. 2014-2015 School Year (Third Grade)

         For S.M.'s third grade school year, 2014-2015, AACPS established an IEP that identified him as having a primary disability of specific learning disability, and his affected areas as fine motor, reading, math, written expression, and requisite learning schools. (P. Exh. 31.) Under Present Level of Academic Achievement and Functional Performance for each school subject matter, the IEP noted that as to (i) reading, S.M. was on grade level for sight words and comprehension, but on a first grade level for decoding; (ii) math, S.M. was on grade level for numerical operations, but on mid and end-of first grade levels for problem solving and math fluency, respectively; (iii) written expression, S.M. was at mid-first grade levels for alphabet writing fluency, sentence composition, and spelling; and (iv) as to fine motor and requisite learning skills, S.M. was below expectations. (Id.) The IEP then provided that SM. would receive the following services at Davidsonville Elementary:

• 20 hours of extended school year education services during the summer of 2014 for reading and math.
• 10.5 hours of special education services per week in a co-taught, general education setting for language arts (5 hours), math (5 hours), and requisite learning (30 minutes).
• 30 minutes of self-contained, “pull-out” class services taught specifically by a special education teacher outside of the general education per week for requisite learning.
• Instructional and testing accommodations and several supplementary aids, services, program modifications, and supports.
• 30 minute occupational therapy sessions three times per month during the school year, and one thirty minute ...

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