R.F., a minor child, by and through her PARENTS and next friends, E.F. and H.F.; E.F.; H.F., on their own behalves, Plaintiffs - Appellants,
CECIL COUNTY PUBLIC SCHOOLS, Defendant-Appellee, and D'ETTE W. DEVINE, Superintendent (officially); SARAH FARR, Director of Special Education (officially), Defendants. COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC.; DISABILITY RIGHTS MARYLAND; NATIONAL DISABILITY RIGHTS NETWORK; THE JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW, Amici Supporting Appellant.
Argued: January 29, 2019
from the United States District Court for the District of
Maryland, at Baltimore. Albert David Copperthite, Magistrate
Darryl Steedman, STEEDMAN LAW GROUP, Lutherville, Maryland,
Andrew Burkhouse, PESSIN KATZ LAW, P.A., Columbia, Maryland,
J. Anthony, DENTONS U.S. LLP, Washington, D.C., for Amici
A. Steele Steedman, STEEDMAN LAW GROUP, Lutherville,
Maryland; Kevin Golembiewski, BERNEY & SANG,
Philadelphia, Pennsylvania, for Appellants.
E. Konstas, Towson, Maryland, Rochelle S. Eisenberg, PESSIN
KATZ LAW, P.A., Columbia, Maryland, for Appellee.
Burnim, Lewis Bossing, THE JUDGE DAVID L. BAZELON CENTER FOR
MENTAL HEALTH LAW, Washington, D.C.; Richard D. Salgado,
Dallas, Texas, A. David Mayhall, DENTONS U.S. LLP,
Washington, D.C., for Amicus The Judge David L. Bazelon
Center for Mental Health Law.
Almazan-Altobelli, COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
INC., Towson, Maryland, for Amicus Council of Parent
Attorneys and Advocates, Inc., National Disability Rights
Network, and Disability Rights of Maryland.
AGEE and HARRIS, Circuit Judges, and DUNCAN, Senior Circuit
DUNCAN, SENIOR CIRCUIT JUDGE
an elementary school student with a disability, and her
parents (collectively "Appellants") challenge the
district court's decision to affirm the determination of
a Maryland Administrative Law Judge (an "ALJ") that
Cecil County Public Schools ("CCPS") provided R.F.
with a free appropriate public education (a "FAPE")
under the Individuals with Disabilities Education Act (the
"IDEA"), 20 U.S.C. § 1400 et seq.
Appellants contend that CCPS violated the IDEA by (1) failing
to educate R.F. in the least restrictive environment (the
"LRE"), (2) failing to implement R.F.'s
Individualized Education Program (her "IEP"), (3)
denying R.F.'s parents the opportunity to participate in
her educational decisionmaking, and (4) providing an IEP that
was inappropriate for R.F.'s needs. The ALJ found, and
the district court agreed, that while CCPS violated certain
procedural requirements of the IDEA, those violations did not
substantively deny R.F. a FAPE in violation of the IDEA. For
the reasons that follow, we affirm.
who was seven years old when these proceedings began, is a
CCPS student with a disability who is entitled to special
education and related services under the IDEA. R.F. and her
parents contend that CCPS failed to comply with the IDEA in
several respects and that, in so doing, CCPS denied R.F. a
FAPE in violation of the IDEA. Before addressing these
arguments, we first provide a brief overview of the
applicable regulatory framework and the facts and procedural
history of this case.
IDEA provides funds for states to educate children with
disabilities, subject to conditions imposing substantive
requirements on the education that is provided. 20 U.S.C.
§ 1412. The statute was enacted to ensure that children
with disabilities have access to an education that meets
their unique needs, to protect the rights of these children
and their parents, and to prevent the unnecessary exclusion
of these children "from the public school system and
from being educated with their peers." Id.
end, the IDEA requires that participating states provide a
FAPE to children with disabilities. Id. §
1412(a)(1). The mechanism by which a state provides a FAPE is
an IEP--a document that describes the child's unique
needs and the state's plan for meeting those needs.
See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.
Dist. RE-1, 137 S.Ct. 988, 994 (2017) ("The IEP is
the centerpiece of the [IDEA's] education delivery system
for disabled children.") (citation and internal
quotation marks omitted). The IDEA requires participating
states to "develop, review, and revise" an
IEP for each child with a disability. 20 U.S.C. §
1412(a)(4). An IEP must contain an assessment of the
child's "present levels of academic achievement and
functional performance," measurable annual goals that
are designed to "meet the child's needs that result
from the child's disability" along with a statement
of how progress toward those goals will be measured, a
description of "the special education and related
services and supplementary aids and services" that the
school will provide for the child, and an "explanation
of the extent . . . to which the child will not participate
with nondisabled children in the regular class."
Id. § 1414(d)(1)(A)(i). The IEP team--a group
comprised mainly of school staff and a child's
parents--should revise the IEP "as appropriate" to
address various circumstances, including a "lack of
expected progress towards the annual goals"; "the
results of any reevaluation"; "information about
the child provided to, or by, the parents"; "the
child's anticipated needs"; or "other
matters." Id. § 1414(d)(4)(A). The IDEA
requires that a child's parents be included in the IEP
decisionmaking process as members of the IEP team.
Id. § 1414(d)(1)(B).
has been diagnosed with severe autism spectrum disorder and a
rare genetic disorder. She generally communicates without using
words, and she "exhibits complex, challenging,
disruptive behaviors" such as hyperactivity and
aggression. J.A. 24. Her aggressive behaviors, which include
"grabbing people, pulling hair, biting, and placing her
mouth on others," often manifest during transitions in
the school day. Id. R.F. also exhibits physical
limitations--for instance, she has significant neuromuscular
deficits, so she sometimes needs assistance sitting up
straight and being aware of her body's position when
navigating steps and curbs. R.F. "requires adult
supervision and assistance at all times." Id.
She also has a short attention span and has difficulty
processing information quickly.
first identified R.F. as a student qualifying for special
education and related services when she was two years old. It
developed IEPs for R.F. for half-day kindergarten in the
2014-2015 school year and for full-day kindergarten in the
2015- 2016 school year.
R.F. entered first grade, CCPS took steps to address
R.F.'s behavioral issues. CCPS hired a consultant from
the Kennedy Krieger Institute to instruct its staff on
conducting functional behavior assessments ("FBAs")
for students with significant disabilities and autism. CCPS
staff conducted an FBA for R.F. in April 2016 and created a
behavior intervention plan (a "BIP") for her that
focused on biting as her primary interfering behavior.
set out actions for CCPS staff to take to reduce R.F.'s
unwanted biting and to intervene when she began to bite.
Steps to reduce R.F.'s biting included ensuring that
R.F.'s NovaChat (a device that allows R.F. to press
pictures on a screen to communicate) was accessible to her at
all times, maintaining a "clear and consistent daily
routine" and a visual schedule to ease transitions
during the day, reminding R.F. of appropriate behaviors by
presenting social stories to her throughout the day,
providing R.F. with "short verbal instructions with
visual supports," and using a token reinforcement
system. J.A. 29. Steps to intervene when R.F. began to bite
included redirecting R.F. to her NovaChat, to appropriate
oral stimulation items, or to vibration tools meant to calm
R.F., followed by reviewing social stories to remind R.F. why
biting is inappropriate.
relevant to the dispute on appeal, R.F.'s IEP
team--comprised primarily of CCPS staff and R.F.'s
parents--met in May 2016 to revise her IEP for the 2016-2017
first grade school year (the "May 2016 IEP"). The
May 2016 IEP incorporated R.F.'s BIP. It also included
thirteen goals to address R.F.'s academic, behavioral,
physical, and speech and language needs. The IEP team
determined that to make progress on these goals, R.F. would
require sixteen hours and fifty-five minutes outside the
general education setting and fourteen hours and thirty-five
minutes inside the general education setting each week.
mother attended this meeting and objected to the May 2016
IEP. She did not think that R.F. should be included in
classes with nondisabled peers and requested that CCPS pay
for R.F.'s tuition at the Benedictine School, a private
school. The other members of R.F.'s IEP team disagreed
and noted that CCPS was developing an intensive communication
support classroom (an "ICSC") for children with
communicative difficulties. The IEP team again met in June
2016 to evaluate R.F.'s progress on her IEP goals before
the start of the 2016-2017 school year. Appellants'
arguments on appeal focus solely on the 2016-2017 school
start of the 2016-2017 school year, CCPS provided most of
R.F.'s special education services in the ICSC. Although
CCPS anticipated the participation of other students in the
ICSC, those students did not attend in the fall of 2016 due
to unexpected circumstances. Consequently, R.F. was the only
student in the ICSC. R.F. joined the general education
classroom for "specials" (e.g. gym, art, music),
recess, field trips, and occasional reading and math classes.
a special education teacher, provided R.F. with special
education services in the ICSC. CCPS also assigned a
paraprofessional to support R.F. throughout the day. In the
ICSC and throughout R.F.'s day, CCPS offered R.F. a
number of specialized services, including individualized
supervision and instruction, and supports. These supports
included objects meant to help R.F. transition to new
activities and locations, a visual schedule with verbal cues,
and low lighting and reduced noise. CCPS "implemented
the BIP regularly, but not perfectly." J.A. 44. For
instance, while Mr. K. used the behavior reduction and
intervention steps in the BIP, he did not always follow them
in order. To monitor R.F.'s progress toward her IEP
goals, Mr. K. collected data on R.F.'s behavior and
performance every other week and incorporated that data into
quarterly progress reports. He destroyed his raw data after
writing the quarterly reports, even though CCPS requires
teachers to maintain data for two years.
August 2016, approximately three weeks after the start of
school, Mr. K. began to notice that R.F. struggled when she
joined her nondisabled peers in the general education
setting. She had difficulty walking between classrooms and
staying seated and quiet in the general education classroom.
She also often failed to finish her lunch in the school
lunchroom because she became distracted.
response to these difficulties, Mr. K. gradually began
providing more instruction to R.F. in the ICSC instead of the
general education classroom. For instance, while R.F.'s
schedule placed her in the general education classroom for
reading comprehension, Mr. K. would sometimes remove her from
that class and take her back to the ICSC. This decision
varied daily and, according to Mr. K., was "responsive
to her needs depending on her success in the class."
S.A. 3. On some days, Mr. K. was unable to take
R.F. to the general education classroom "if she was
exhibiting really aggressive behaviors or if she was having a