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I.O. v. Smith

United States District Court, D. Maryland, Southern Division

September 24, 2018

I.O., et al., PLAINTIFFS,
v.
JACK R. SMITH, et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         I.O. (“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, [1] 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.

         In 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.

         At that 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 Tr.

         The 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.

         While 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.

         The parties filed cross-motions for summary judgment, ECF Nos. 41, 43, as well as a Joint Statement of Undisputed Facts, ECF No. 42.[2] 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.

         Free Appropriate Public Education

         Children 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)).

         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., 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”).

         To this 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 994.

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)).

         In 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).

         Background[3]

         Much of the background to this case is undisputed, and the parties provided it to the Court in their Joint Statement of Undisputed Facts.[4]

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.

         The ALJ 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.

         Standard of Review

         In 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).

         “This 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, ...


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