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A.H. v. Smith

United States District Court, D. Maryland, Southern Division

February 8, 2019

A.H., et al., PLAINTIFFS,
v.
JACK R. SMITH, et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

         A.H., a minor, by and through his Parents, J.H. and E.H. (“Parents”), who also joined their son as Plaintiffs, filed suit against Jack R. Smith in his official capacity as Superintendent of Montgomery County Public Schools (“MCPS”) and Montgomery County Board of Education (“the Board”). Compl., ECF No. 1. Plaintiffs claim that Defendants failed to provide A.H., who has Autism, Common Variable Immune Deficiency, and Pediatric Acute Onset Neuropsychiatric Syndrome, with the Free Appropriate Public Education (“FAPE”) to which he is entitled under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Compl. ¶ 146. They ask the Court to reverse the decision of the administrative law judge (“ALJ”) who reviewed A.H.'s individualized education programs (“IEPs”) and proposed placements for the 2015-18 school years and concluded that they provided an appropriate education for A.H. in the least restrictive environment, as required by the IDEA. Id. ¶¶ 92, 140-42, 150.

         According to Plaintiffs, the IEP for the 2015-17 academic school years fell short because it included “lunch and recess in the general education setting, ” which offered no educational benefit to A.H. and presented safety concerns “given [A.H.'s] significant behavioral dysregulation.” Compl. ¶¶ 52-53. Plaintiffs also argued that the level of staffing at the proposed placement, Bells Mill Elementary School (“Bells Mill”), was inadequate to meet A.H.'s needs. Id. ¶ 79. As for the 2017-18 school year, Plaintiffs challenged the IEP and proposed placement for A.H. at Cabin John Middle School (“Cabin John”) as inadequate because of the “absence of clearly discernable behavioral intervention, inadequate staffing, isolation from peers in order to meet the hours of specialized instruction indicated in his IEP, and a lack of a safe and secure environment.” Id. ¶ 78. In her opinion, the ALJ agreed with MCPS that A.H. was offered IEPs and placements that were reasonably calculated to provide him with a FAPE for all three school years, and denied the Parents the relief they requested, namely funding and placement from MCPS for A.H. at the Ivymount School (“Ivymount”). ALJ Dec. 43.

         The parties have filed cross-motions for summary judgment. ECF Nos. 10, 14.[1] Plaintiffs argue that the ALJ erred in both her factual findings and legal analysis, including by “failing to properly assess the credibility of witnesses, especially when faced with school system witnesses who knew very little about A.H., ” and completely ignoring the “majority of the specific concerns expressed by the parents' witnesses who knew A.H. about the proposed MCPS programs, as well as evidence of his response to the more intensive programming at Iymount.” Pls.' Mem. 2. But, giving due weight to the ALJ's factual findings and from my own de novo review of the entire record, I find that the IEPs and the proposed placements were appropriate and reasonably calculated to provide A.H. with a FAPE for all three school years. 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 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. 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”).

         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[2]

         Much of the background to this case is undisputed, as outlined in the stipulated facts submitted by the parties to the ALJ. See ALJ Dec. 4-6 (“Jt. Stmt. Facts”). A.H. is a twelve-year-old student residing in Montgomery County, Maryland. Id. ¶ 1. A.H. was diagnosed with Autism in 2008 and was later diagnosed with an accompanying intellectual disability (moderate) and language impairment. Id. ¶¶ 6, 12. A.H. exhibits significant and impairing symptoms of Autism, including delays in communication skills, social skills, behavioral regulation, and sensory processing. Dr. Ratto Eval. 7, Pls.' Ex. 6. A.H.'s presentation is further complicated by his subsequent diagnoses of Pediatric Acute Onset Neuropsychiatric Syndrome (“PANS”) and Common Variable Immune Deficiency (“CVID”). Jt. Stmt. Facts ¶¶ 4, 7, 10; Dr. Ratto Eval. 9. A.H.'s doctor reported that these conditions “contribute to severely impairing compulsive behaviors and behavioral rigidity.” Dr. Ratto Eval. 9.

         Prior to moving to Montgomery County in 2015, Plaintiffs lived in Alexandria, Virginia. Nov. 8, 2017 Tr. 42:25-43:8. In 2007, at the age of two, A.H. was found eligible for early intervention by Plaintiffs' local school district, Alexandria City Public Schools (“ACPS”), and began receiving speech and occupational therapy services. Jt. Stmt. Facts ¶ 5; Nov. 8, 2017 Tr. 28:8-22. Then, from 2008 to 2010, A.H. attended non-categorial special education preschool programs through ACPS. Nov. 8, 2017 Tr. 28:8-38:1. The Parents withdrew A.H. from the ACPS preschool program in June 2010 and homeschooled him until 2015. Id.

         In the spring of 2015, the Parents applied for A.H. to attend the Ivymount School in Montgomery County, Maryland. Nov. 8, 2017 Tr. 41:14-42:16. A.H. was accepted and began attending Ivymount in July 2015, at which time Plaintiffs were still living in Alexandria City, Virginia. Jt. Stmt. Facts ¶ 11; Nov. 8, 2017 Tr. 42:25-43:2. The Parents did not seek an IEP proposal from ACPS in 2015. Nov. 8, 2017 Tr. 92:2-9. However, the Parents retained an educational advocate, Suzanne Keith-Blattner, because they “wanted to keep [A.H.] at Ivymount, ” so they wanted to “see[ ] her thoughts on funding from Alexandria City Public Schools.” Id. 88:15-90:22.

         In November 2015, four months after A.H. began attending Ivymount, Plaintiffs moved to Montgomery County, Maryland. Jt. Stmt. Facts ¶ 13; Nov. 8, 2017 Tr. 43:3-8. Soon after, on December 11, 2015, the Parents contacted MCPS to begin the special education eligibility process for A.H. Jt. Stmt. Facts ¶ 13. The Parents provided a referral packet to MCPS at that time, which included medical evaluations of A.H., reports from Ivymount, and Ms. Blattner's report of her observation of A.H. at Ivymount. Nov. 8, 2017 Tr. 111:24-117:21.

         A. The 2016 IEP

         On February 22, 2016, MCPS convened an IEP screening meeting for A.H.. Jt. Stmt. Facts ¶ 14. At the meeting, the IEP team reviewed the documentation provided by Plaintiffs and also considered a classroom observation report of A.H. completed by Lisa Shen, an MCPS special educator. Nov. 8, 2017 Tr. 122:20-124:16. MCPS found A.H. eligible for special education services as a student with Autism. Jt. Stmt. Facts ¶ 14.

         After the meeting, the Parents and MCPS prepared to develop A.H.'s IEP. Specifically, the Parents hired Dr. Laura Solomon, an educational consultant, to assist with developing A.H.'s educational programming. Nov. 7, 2017 Tr. 31:17-34:15. She reviewed A.H.'s records and observed him in his program at Ivymount. Id. For its part, MCPS sent a program specialist from its Autism Division, Tina Garland, to conduct a classroom observation of A.H. at Ivymount. Nov. 15, 2017 Tr. 34:3-23. In addition, MCPS psychologist Dawn Lester completed an assessment of A.H. on March 7, 2016, and MCPS physical therapist Jane Juliano conducted a clinical observation of A.H. on March 10, 2016. Jt. Stmt Facts ¶ 16; MCPS Physical Therapy Report, MCPS Psychological Report, Defs.' Exs. 21, 22.

         Then, on April 15, 2016, the IEP team met to develop A.H.'s IEP. See 2016 IEP, Defs.' Ex. 25. The Parents and their attorney attended the meeting, along with Dr. Solomon and Kelsey Ruppel, a special education teacher at Ivymount. See id. at 69. The IEP team discussed the assessments of A.H. completed by MCPS specialists Lisa Shen, Jane Juliano, Dawn Lester, and Tina Garland, all of whom were present at the meeting. Id. The IEP team also received input from Kelsey Ruppel and Dr. Solomon regarding A.H.'s needs and his performance at Ivymount. Id. A.H.'s mother, E.H., testified that the development of the IEP was “a very collaborative process.” Nov. 8, 2017 Tr. 45:2-9.

         As a result of the meeting, an IEP was proposed for the remainder of the 2015-16 school year and for the upcoming 2016-17 school year (“the 2016 IEP”). Jt. Stmt. Facts ¶ 17; Nov. 8, 2017 Tr. 128:4-6. In relevant part, the 2016 IEP provides A.H. would receive “specialized instruction out of the general education setting for all academic areas, ” for a total of 22 hours and 30 minutes per week. 2016 IEP 50. It calls for a “highly structured classroom” and outlines a range of instructional supports to be implemented across the school day, including “1:1 instruction for new skill acquisition.” See 2016 IEP 24-33. The IEP also provides A.H. would spend lunch and recess in the general education setting with “special education support, ” for a total of 5 hours per week. Id. at 50. In addition, among other services and supports, the 2016 IEP implements the behavioral intervention plan (“BIP”) developed by Ivymount and recommends 1.5 hours of speech therapy per week, 3.0 hours of physical therapy per quarter, and 30 minutes of occupational therapy per quarter. Id. at 30, 50.

         The Parents and Dr. Solomon agreed with most of the 2016 IEP. Nov. 8, 2017 Tr. 173:9- 24 (E.H.'s testimony that “[t]he IEP that was developed, we all agree with”). They only objected to A.H.'s inclusion in the general education setting for lunch and recess; they requested a fully self-contained program for A.H. 2016 IEP 61. In response, the MCPS team explained that they would take data when A.H. enrolled and then determine whether A.H.'s continued inclusion in the general education setting for lunch and recess was appropriate. Id.

         MCPS proposed the Autism Program at Bells Mill Elementary School to implement the 2016 IEP. Jt. Stmt. Facts ¶ 17. Ms. Garland told the Parents that there is a 2:1 student-to-staff ratio at Bells Mill and that the students are taught at their instructional level. 2016 IEP 69. After conducting observations of the Program at Bells Mill, however, the Parents and Dr. Solomon concluded that the level of staffing at Bells Mill was inadequate for A.H., particularly during lunch and recess. Nov. 7, 2017 Tr. 117:5-118:6; Nov. 8, 2017 Tr. 48:11-51:25. The Parents and Dr. Solomon also believed that the instructional methods used at Bells Mill, including group instruction and assigning independent work, were inconsistent with A.H.'s learning abilities. Nov. 8, 2017 Tr. 48:11-51:25; see also Dr. Solomon Observation Report 3, Pls.' Ex. 23.

         On June 9, 2016, the Parents sent MCPS reports from Ivymount outlining A.H.'s present levels of performance and requested an IEP meeting to discuss the new information. Jt. Stmt. Facts ¶ 19. In response to the Parents' request, the parties convened for a meeting on August 4, 2016. Jt. Stmt. Facts ¶ 20. The IEP team reviewed the information from Ivymount at the meeting, which demonstrated that A.H. had made progress on many objectives in his Ivymount IEP but continued to elope and have tantrums. See Ivymount June 3, 2016 Report, Defs.' Ex. 41; Nov. 8, 2017 Tr. 137:2-16. The IEP team also reviewed a list of medical orders submitted by Dr. Teresa Fuller, A.H.'s general pediatrician, including her recommendation that a registered nurse be present in A.H.'s school building to respond to any changes in his medical condition. Dr. Fuller Report 2, Defs.' Ex. 34.

         After considering the information and updating the 2016 IEP with A.H.'s present levels of performance, MCPS reaffirmed its proposal for A.H. to attend the Autism Program at Bells Mill for the 2016-17 school year.[3] Aug. 4, 2016 IEP, Pls.' Ex. 27. An MCPS Nurse Administrator informed the Parents that the directives from A.H.'s physician could be implemented at Bells Mill, but the Parents objected to the placement because it did not have a registered nurse on site throughout the school day.[4] See Id. at 82. Thus, the following day, the Parents served notice of their intent to maintain A.H.'s enrollment at Ivymount for the 2016-17 school year and requested that MCPS place and fund him there. Jt. Stmt. Facts ¶ 21. MCPS declined the Parents' request and maintained that they had offered A.H. a FAPE. Id. ¶ 22.

         B. The 2017 IEP

         On January 26, 2017, the Parents sent A.H.'s updated Ivymount IEP and present levels of performance to MCPS and requested a meeting to begin the IEP process for the 2017-18 school year, A.H.'s first year of middle school. Jt. Stmt. Facts ¶ 23. In turn, in preparation for developing the updated IEP, two program specialists from the MCPS Autism Division, Emily Stanley and Lauren McGinley, conducted observations of A.H. at Ivymount. Nov. 15, 2017 Tr. 177:7-24.

         The Parents and MCPS met on April 4, 2017 to develop the updated IEP. Jt. Stmt. Facts ¶ 24. Ms. Stanley and Ms. McGinley from the MCPS Autism Division attended the meeting, along with MCPS occupational therapist Felicia Farag, MCPS physical therapist Jane Juliano, and MCPS nurse administrator Melinda McCartin. See 2017 IEP 80, Defs.' Ex. 57. The Parents were joined at the meeting by their attorney and two Ivymount staff members - Katie Quinn, the Ivymount Autism Division Director, and Kelly Matthews, the Head Teacher at Ivymount. See Id. at 2, 74. E.H. and Dr. Solomon both testified that the development of this IEP, like that of the prior IEP, was a collaborative process. Nov. 7, 2017 Tr. 166:16-22; Nov. 8, 2017 Tr. 45:2-9.

         The IEP proposed at the April 4, 2017 meeting (“the 2017 IEP”) is substantially similar to the 2016 IEP. In relevant part, the 2017 IEP calls for A.H. to “receive academic instruction in the special education setting outside general education, ” for a total of 22 hours and 50 minutes per week. 2017 IEP 54. It mandates a “highly structured classroom, ” a “low staff to student ratio, ” “close adult proximity at all times, ” and a variety of other instructional and behavioral supports. Id. at 29-34. Further, like the 2016 IEP, the 2017 IEP includes lunch and recess in the general education setting, for a total of 5 hours per week. Id. at 54. Among other services and supports, the 2017 IEP also implements the behavioral intervention plan (“BIP”) developed by Ivymount and includes 1 hour of speech therapy per week, 3 hours of physical therapy per quarter, and 30 minutes of occupational therapy per quarter. 2017 IEP 54, 60.

         The Parents and Dr. Solomon agreed with most of the 2017 IEP, but again opposed A.H.'s inclusion in the general education setting for lunch and recess. Nov. 7, 2017 Tr. 166:2-15; Nov. 8, 2017 Tr. 174:21-175:20 (E.H.'s testimony that “I agree with everything on the IEP except for … [t]he gen ed piece.”). They believed that lunch and recess in the general education setting presented safety risks for A.H. and offered no educational benefit. 2017 IEP 74. MCPS documented the Parents' concerns but concluded that “there is no data that would suggest the student cannot be included during lunch and recess.” Id.

         To implement the 2017 IEP, MCPS proposed the Autism Program at Bells Mill Elementary School for the remainder of the 2016-17 school year and the Autism Program at Cabin John Middle School for the upcoming 2017-18 school year, A.H.'s first year of middle school.[5] See 2017 IEP 56; Jt. Stmt. Facts ¶ 24. After the meeting, the Parents and Dr. Solomon conducted observations of the Autism Program at Cabin John and concluded that it was inappropriate for A.H. Nov. 7, 2017 Tr. 150:22-153:14; Nov. 8, 2017 Tr. 59:13-61:2. Specifically, the Parents and Dr. Solomon believed that the cafeteria at Cabin John presented safety risks for A.H. and that the level of staffing was inadequate to address his needs. Id. The Parents also expressed concerns about the electives at Cabin John, which are only formally offered in the general education setting. Nov. 8, 2017 Tr. 59:18-61:2. Thus, the Parents served notice of their intent to maintain A.H.'s enrollment at Ivymount for the 2017-18 school year and requested that MCPS place and fund him there. Jt. Stmt. Facts ¶ 27. MCPS declined the Parents' request and maintained that it had offered A.H. a FAPE. Id. ¶ 28.

         On August 10, 2017, the Parents filed a due process hearing request challenging the appropriateness of the IEPs and proposed placements and seeking reimbursement for A.H.'s placement at Ivymount. Due Process Hr'g Req., Pls.' Ex. 1. A due process hearing was held on November 7, 8, 15, and 16, 2017. See ALJ Dec 2. The ALJ made the following findings of fact regarding the 2016 IEP:

         January to April 2016 - the first IEP proposed bv MCPS

29. The Student was ten years old and in 4th grade.
30. The Student took part in group instruction at the Private School. At times, he was disruptive, with behaviors such as stamping bis feet, screaming at the teacher, reaching over the table for a preferred item, and repeating a demand. At other times he could participate actively in the group without disruption, especially when given prompting, cueing, and praise from an aide. Frequent reinforcement breaks also helped with his behavior and participation.
31. MCPS drafted an IEP for the Student. MCPS worked in collaboration with the Parents, the Private School and the Parents' recently hired new education consultant, Dr. Solomon.
32. The proposed MCPS IEP was also developed based on the observations of the Student at the Private School by a MCPS Resource Teacher and an MCPS Autism Specialist.
33. An IEP Team meeting was held on April 15, 2016, 12 and included: special education staff from MCPS; a MCPS school psychologist; a MCPS OT; a MCPS SLP; the Student's Parents; their attorney; a special education teacher from the Private School; and Dr. Solomon.
34. The IEP Team agreed that the Student was certificate (not diploma) track and would participate in alternate assessments.
35. The proposed MCPS lEP's present level of performance (PLOP) sections described the Student in all areas of need, including oral language, behavior, safety, adaptive skills, social skills and gross motor.l3 It also discussed his PANS and CVID diagnoses. The information contained within the PLOP sections was taken directly from the Private School documents provided to MCPS by me Parents, including the Private School's IEP, BIP, and Annual Education Report, and the evaluations performed by the Children's Hospital psychologist and SLP, as complemented by the observations of the MCPS Resource Teacher.
36. The proposed MCPS IEP contained goals across all areas of need, including speech/language, behavior, personal management, social skills, written language, reading, mathematics, and gross motor. Many of the goals addressed similar areas as the Private School IEP.14 The IEP also contained goals that were added or expanded upon including: reciprocal play interactions with peers, including rum taking; personal management, including gathering and putting away school material and following arrival/departure/lunch routines; and speech intelligibility, for letter sounds and blends.
37. The proposed MCPS IEP contained accommodations, supports and modifications to assist the Student. Relevant accommodations, supports and modifications included: breaking assignments down into smaller units; errorless teaching; reminders for appropriate behavior; frequent and immediate feedback; frequent reminder of rules; multiple and frequent breaks; short instructions in simple language; concrete reinforces; fast-paced instruction; verbal and visual prompting, one-to-one instruction for new skill acquisition; and proximity control. It also provided the Student would be in a highly structured classroom.
38. The proposed MCPS IEP also implemented the BIP developed by the Private School.
39. The proposed MCPS IEP provided for the following instruction to occur outside general education: twenty-two hours, thirty minutes, of special education instruction weekly for all academic and related arts instruction; one hour, thirty minutes weekly for direct speech services; one hour monthly for direct physical therapy (PT) services; and thirty minutes quarterly for direct OT service.
40. The proposed MCPS IEP provided that the Student would be in the general education setting with special education support for five hours weekly during lunch and recess.
41. At this time, the Student had emerging social skills and was interested in interacting with others.
42. The proposed MCPS EEP offered Extended School Year services to die Student.
43. MCPS offered the Elementary School's Autism Program as the placement for the Student.
44. The Elementary School's Autism Program is a self-contained, outside of general education program, that provides specialized instruction in a highly structured setting with multiple opportunities for facilitated practice, direct modeling of academic and social skills, and teacher facilitation of skills to multiple situations and settings.
45. A classroom in the Elementary School's Autism Program has, on average, six students. It is taught by a Special Education teacher, and has at least ...

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