United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
(“Student”) is a “thirteen-year-old girl
who has been diagnosed with Autism, Epilepsy, a Speech and
Language Disorder, and Attention Deficit/Hyperactivity
Disorder (‘ADHD').” Jt. Stmt. Facts 1, ECF
No. 42. Because of this diagnosis, I.O. is “eligible
for special education services by Montgomery County Public
Schools (‘MCPS' or ‘the school system'),
under the IDEA,  as a student with an Other Health
Impairment (‘OHI').” Id. Yet she has
attended private special education schools since she moved to
Montgomery County, Maryland in 2013 with her parents, J.O.
and E.O. (“Parents”). Id. at 1-2.
August 2015, while I.O. was a student at the Ivymount School
(“Ivymount”), a private special education school,
the Parents met with representatives from MCPS to develop an
individualized education program (“IEP”) for I.O.
and to determine her school placement. Jt. Stmt. Facts 2.
Ultimately, the Central IEP (“CIEP”) team,
including the Parents, met on October 23, 2015 and finalized
I.O.'s IEP (the “2015-2016 IEP”). 2015-2016
IEP & Oct. 29, 2015 Prior Written Notice, P-47; MCPS Oct.
23, 2015 IEP Mtg. Notes, P-48. The 2015-2016 IEP required
“full-time self-contained special education in a small
setting with behavior support and one hour per week of Speech
and Language services, and one-to-one adult support for
aggression across all academic areas.” Jt. Stmt. Facts
3. Notably, it did not require behavioral data collection at
specified intervals, such as the data collection every five
minutes that I.O.'s one-to-one dedicated aid at Ivymount
provided, and to which the Parents attributed the progress
I.O. had made. Compl. ¶¶ 19-20, ECF No. 1 (sealed),
ECF No. 5 (redacted). Nonetheless, the Parents agreed to it.
Jt. Stmt. Facts 3.
meeting, MCPS decided to place I.O. at Carl Sandburg Learning
Center (“Carl Sandburg”), which is a
self-contained public school within MCPS. Id. The
Parents did not agree, believing that only Ivymount could
meet I.O.'s needs. Id. The Parents kept the
Student at Ivymount for the 2015-2016 school year instead,
and they sought review of the placement (though not the IEP
itself) by an administrative law judge (“ALJ”).
Id. at 4. The ALJ concluded that the Student's
2015-2016 IEP and placement at Carl Sandburg were reasonably
calculated to provide her with a free appropriate public
education (“FAPE”) in the least restrictive
environment. Aug. 5, 2016 ALJ Dec. 3, 24, 51; see
June 20-21, 2016 Tr.; July 6-8, 2016 Tr.; July 11-12, 2016
Parents and the Student, by and through her Parents, filed
this lawsuit against Jack R. Smith in his official capacity
as Superintendent of MCPS and Montgomery County Board of
Education (“the Board”). Compl., ECF No. 1
(sealed), ECF No. 5 (redacted). They ask the Court to reverse
the ALJ's decision because, in their view, it is
erroneous due to the ALJ's refusal to consider certain
evidence, her assessment of witnesses, and the findings she
reached. Compl. ¶¶ 1, 62-72. Plaintiffs claim that
Defendants failed to provide I.O. with the FAPE to which she
is entitled under the IDEA. Id. ¶¶ 1, 6.
this case was pending, the Supreme Court issued its opinion
in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist.
RE-1, 137 S.Ct. 988 (2017). At Plaintiffs' request,
ECF Nos. 20, 22, and to promote judicial economy, I remanded
the case for consideration in light of Endrew F. ECF
No. 25. The ALJ issued a Decision on Remand on August 15,
2017, reaching the same conclusion that the Student's
2015-2016 IEP and placement were reasonably calculated to
provide her with a FAPE in the least restrictive environment.
ALJ Dec. on Remand 3, 26, 54.
parties filed cross-motions for summary judgment, ECF Nos.
41, 43, as well as a Joint Statement of Undisputed Facts, ECF
No. 42. Giving due weight to the ALJ's
factual findings and from my own de novo review of
the entire record, I find that I.O.'s placement at Carl
Sandburg was appropriate and reasonably calculated to provide
her with a FAPE. 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 “includes both ‘special
education' and ‘related services, '”
which “are the support services ‘required to
assist a child . . . to benefit from'” instruction
tailored to his or her needs. Endrew F. ex rel.
Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct.
988, 994 (2017) (quoting 20 U.S.C. § 1401(9); citing 20
U.S.C. §§ 1401(26), (29)). The public school system
must provide “related services ‘in conformity
with the [child's] individualized education program,'
or IEP.” Id. (quoting § 1401(9)(D)).
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., 137 S.Ct. at 999
(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”).
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 their Joint Statement of
I.O. previously attended public school in Portland, Oregon
and received services pursuant to an Individualized Education
Program (“IEP”), under the classifications of
Speech/Language Impairment and Other Health Impairment.
I.O.'s family moved to Maryland in 2013 and began the
special education eligibility process with MCPS in June 2013.
The MCPS team found I.O. eligible as a student with an OHI
due to her ADHD and seizure disorder. In October 2013, MCPS
drafted an IEP and proposed placement at DuFief Elementary
School in the Learning Center.
The parents did not enroll I.O. at Dufief. For the 2013-2014
year, the parents privately placed I.O. at the Katherine
Thomas School (“KTS”), in Rockville, Maryland.
KTS is a private special education school.
Jt. Stmt. Facts 1-2 (citations to record omitted). The
Parents believed it “was apparent . . . that she was
not making much behavioral or educational progress” at
KTS, as “[s]he was very disruptive in and out class and
was not available for learning, ” Compl. ¶ 15.
I.O. attended second grade at KTS and was eventually provided
the support of a one-to-one dedicated aide to help manage her
behavioral difficulties. On December 22, 2015, KTS released
the parents from their contract. On January 15, 2015, I.O.
began at Ivymount in the Lower School Multiple Needs Program.
Jt. Stmt. Facts 2 (citations to record omitted). Ivymount
provided “full-time specialized instruction, small
classrooms with high student-to-teacher ratios, weekly
structured play groups, social skills groups, and life skills
programming” for “students with a variety of
cognitive, academic and behavioral needs.” Compl.
¶¶ 17-19. It also provided the Student with
“speech/language therapy sessions” and “a
dedicated one-to-one aide whose primary responsibility is to
collect data every five minutes on I.O.'s behaviors,
their causes, and successful solutions.” Id.
¶¶ 18-19. The Parents believed that I.O. was making
progress at Ivymount. Id. ¶¶ 19-20. They
attributed the progress to Ivymount's behavioral
programming, and specifically the one-to-one dedicated aide
and frequent data collection. Id.
In May 2015, I.O. underwent a neuropsychological evaluation
by Dr. Anne Inge at the Children's National Medical
Center. I.O.'s neuropsychological profile revealed
delayed cognitive abilities, executive dysfunction, motor
deficits, and social learning deficits. Dr. Inge concluded
that I.O. met the criteria for an Autism Spectrum Disorder
based on social communication and interaction deficits. She
also confirmed that I.O. continues to meet the criteria for a
severe Speech/Language Disorder and ADHD, Combined
Presentation. Dr. Inge recommended that I.O. attend a
“highly specialized, special education placement that
includes therapeutic supports and highly individualized
special education instruction.” At the end of the
2014-2015 school year, I.O.'s parents contacted MCPS and
requested that the school system begin the special education
process once again. Her parents met with the IEP team at her
home school, Ashburton Elementary School
(“Ashburton”), to develop an IEP for the 2015-16
school year. At the meeting in August 2015, the Ashburton
team determined that it could not meet I.O.'s needs and
referred her file to the MCPS Central Office for
determination of placement.
In September 2015, the parents hired an educational
consultant, Dr. Laura Solomon. On October 6, 2015 and October
23, 2015, the parents, Dr. Solomon, and the Ivymount staff
met with the MCPS Central IEP (“CIEP”), team to
discuss I.O.'s IEP and placement.
At the final CIEP meeting, the team reviewed the IEP and
agreed to its proposal of full-time self-contained special
education in a small setting with behavior support and one
hour per week of Speech and Language services, and one-to-one
adult support for aggression across all academic areas. When
the discussion of placement arose for the 2015-2016 year, the
team could not reach consensus. Dr. Solomon and I.O.'s
parents requested placement at Ivymount. The MCPS
chairperson, George Moore, raised Carl Sandburg Learning
Center (“Carl Sandburg”), a self-contained public
school in MCPS, as an option. Ms. Middleton, MCPS
Psychologist for Carl Sandburg, reported that the IEP could
be implemented at Carl Sandburg. Kimberly Frazier, MCPS
Placement Specialist, had concerns about I.O.'s
transition and was conflicted, but believed the IEP could be
implemented at Carl Sandburg The MCPS psychologist from
Ashburton, Kristie Kim, who had observed I.O. at Ivymount,
stated that she was concerned about the level of support at
Carl Sandburg and whether they could deliver enough support
to meet I.O.'s needs. After the discussion, MCPS
recommended placement at Carl Sandburg. The parents noted
their disagreement with the decision.
After the CIEP meeting, Ms. Kim observed at Carl Sandburg to
gain additional information about the program, as she had not
previously visited Sandburg. After the visit, she remained
concerned about the level of support required by I.O.
Dr. Solomon and Mrs. O. observed the program at Carl Sandburg
on October 30, 2015. During the visit, they spoke with Carl
Sandburg's Principal, Ms. Marlene Kenny, and visited 4th
and 5th grade classes. Dr. Solomon expressed her opinion that
Carl Sandburg was not an appropriate placement for I.O. On
March 7, 2016, the parents filed a due process hearing
request, appealing the decision of the CIEP team to place
I.O. at Carl Sandburg. A due process hearing was held on June
20 and 21, July 6 through 8, 11 and 12, 2016. The issue at
the hearing was whether the IEP and placement developed by
MCPS for the 2015-2016 school year was reasonably calculated
to provide I.O. with a free appropriate public education,
and, if not, whether tuition reimbursement for the 2015-2016
[and 2016-2017] school year[s] at Ivymount is appropriate.
At the due process hearing, the parents presented evidence
and testimony from Dr. Laura Solomon, an expert in special
education and the family's educational consultant;
Kristie Kim, an expert in school psychology and an MCPS
school psychologist; Marlene Kenny, Principal of Carl
Sandburg; Fonda Lowe, an expert in speech/language pathology
and Director of Ivymount School Multiple Learning Needs
Program; the father; and Megan Boucher, an expert in
behavioral analysis and a Clinical Coordinator and Behavioral
Analyst for Ivymount. The school system presented evidence
and testimony from George Moore, an expert in special
education with an emphasis on educational placement of
special needs students, and Ms. Marlene Kenny, an expert in
special education and the Principal of Carl Sandburg.
Jt. Stmt. Facts 2-4 (citations to record omitted);
see Req. for Admin Hr'g 8.
issued a 51-page Decision on August 5, 2016 and a 55-page
Decision on Remand on August 15, 2017. As noted, she
concluded both times that the Student's 2015-2016 IEP and
placement were reasonably calculated to provide her with a
FAPE in the least restrictive environment. ALJ Dec. on Remand
3, 26, 54. I will discuss her findings of fact and conclusion
of law in detail below. Dissatisfied with the initial
Decision, Plaintiffs filed suit in this Court, Compl., and
the parties filed the pending cross-motions summary judgment.
reviewing cross-motions for summary judgment in an IDEA
action, the “‘reviewing court is obliged to
conduct a modified de novo review'” of the
administrative record, “‘giving “due
weight” to the underlying administrative
proceedings.'” M.C. v. Starr, No.
DKC-13-3617, 2014 WL 7404576, at *6 (D. Md. Dec. 29, 2014)
(quoting M.M. ex rel. D.M. v. Sch. Dist. of Greenville
Cty., 303 F.3d 523, 530-31 (4th Cir. 2002) (citing
Bd. of Educ. of the Henrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176 (1982)). This means that when an
ALJ makes findings of fact “in a regular manner and
with evidentiary support, ” those findings “are
entitled to be considered prima facie correct,
” and “the district court, if it is not going to
follow them, is required to explain why it does not.”
Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 105
(4th Cir. 1991); see N.P. v. Maxwell, 711 Fed.Appx.
713, 718 (4th Cir. 2017); M.C., 2014 WL 7404576, at
*6-7. The Court then reaches its decision based on the
preponderance of the evidence. Rowley, 458 U.S. at
205. Yet, the Court cannot “substitute [its] own
notions of sound educational policy for those of local school
authorities.” M.C., 2014 WL 7404576, at *6-7
(quoting M.M., 303 F.3d at 530-31 (quoting
Hartmann v. Loudoun Cty. Bd. of Educ., 118 F.3d 996,
999 (4th Cir. 1997))). The burden of proof is on Plaintiffs
as the party seeking relief. See Barnett v. Fairfax Co.
Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991), cert.
denied, 502 U.S. 859 (1991).
standard works in tandem with the general standard of review
for summary judgment, which also applies in IDEA cases . . .
.” M.C., 2014 WL 7404576, at *7. Thus, summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, ...