United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
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.
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.
parties have filed cross-motions for summary judgment. ECF
Nos. 10, 14. 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
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 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
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.
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, 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.
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.
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.
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.
The 2016 IEP
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.
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.
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.
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.
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.
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.
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.
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. 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. 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.
The 2017 IEP
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.
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.
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.
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.
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. 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.
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:
to April 2016 - the first IEP proposed bv MCPS
29. The Student was ten years old and in 4th
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.
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
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 ...