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R.F. v. Cecil County Public Schools

United States Court of Appeals, Fourth Circuit

March 25, 2019

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,
v.
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

          Appeal from the United States District Court for the District of Maryland, at Baltimore. Albert David Copperthite, Magistrate Judge. (1:17-cv-02203-ADC)

         ARGUED:

          Wayne Darryl Steedman, STEEDMAN LAW GROUP, Lutherville, Maryland, for Appellants.

          David Andrew Burkhouse, PESSIN KATZ LAW, P.A., Columbia, Maryland, for Appellee.

          Peter J. Anthony, DENTONS U.S. LLP, Washington, D.C., for Amici Curiae.

         ON BRIEF:

          Cheryl A. Steele Steedman, STEEDMAN LAW GROUP, Lutherville, Maryland; Kevin Golembiewski, BERNEY & SANG, Philadelphia, Pennsylvania, for Appellants.

          Adam E. Konstas, Towson, Maryland, Rochelle S. Eisenberg, PESSIN KATZ LAW, P.A., Columbia, Maryland, for Appellee.

          Ira A. 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.

          Selene 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.

          Before AGEE and HARRIS, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          DUNCAN, SENIOR CIRCUIT JUDGE

         R.F., 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.

         I.

         R.F., 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.[1] 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.

         A.

         The 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."[2] Id. § 1400.

         To that 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).

         B.

         R.F. has been diagnosed with severe autism spectrum disorder and a rare genetic disorder.[3] 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.

         CCPS 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.

         Before 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.

         The BIP 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.

         As 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.

         R.F.'s 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 year.[4]

         At the 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.

         Mr. K., 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.

         In 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.

         In 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.[5] 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 really ...


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