United States District Court, D. Maryland
Xinis United States District Judge.
in this Individuals with Disabilities Education Act
(“IDEA”) case are the parties' cross-motions
for summary judgment. ECF Nos. 28, 34. The Board of Education
of Montgomery County and the Montgomery County Public Schools
Superintendent (collectively, “MCPS”) appeal the
decision rendered in J.M. v. Montgomery County Public
Schools, issued November 22, 2017, OAH No.
MSDE-MONT-OT-17-12208 by Latonya B. Dargan, an Administrative
Law Judge of the Maryland Office of Administrative Hearings.
The matter has been fully briefed, and no hearing is
necessary. See Loc. R. 105.6. For the reasons below,
MCPS' motion for summary judgment is DENIED (ECF No. 28)
and J.M.'s motion for summary judgment is GRANTED. ECF
The Individuals with Disabilities Education Act
with disabilities are entitled to a free appropriate public
education, or “FAPE, ” pursuant to the
Individuals with Disabilities Education Act
(“IDEA”). 20 U.S.C. § 1412(a)(1)(A). A FAPE
provides to disabled children “meaningful access to the
educational process” in “the least restrictive
environment” that is “reasonably calculated to
confer ‘some educational benefit.'” E.S.
v. Smith, No. PWG-17-3031, 2018 WL 3533548, at *2 (D.
Md. July 23, 2018) (citing Bd. of Educ. of the Henrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192,
207 (1982)). Although “the benefit conferred . . . must
amount to more than trivial progress, ” the 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 prepare and implement an
individualized educational plan (“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)
(“Any review of an IEP must appreciate that the
question is whether the IEP is reasonable, not
whether the court regards it as ideal.”). The IEP
addresses the student's current educational status,
annual educational goals, the need for special educational
services or other aids necessary to help meet those goals,
and whether the child may be educated in an inclusive school
classroom with non-disabled students. M.C. v. Starr,
No. DKC-13-3617, 2014 WL 7404576, at *1 (D. Md. Dec. 29,
2014) (citing 20 U.S.C. § 1414(d)(1)(A)); see also
J.R. v. Smith, No. DKC 16-1633, 2017 WL 3592453, at *1
(D. Md. Aug. 21, 2017).
play a critical role in the IEP process. They are granted the
opportunity to participate in not only the creation of the
IEP but are invited to the annual IEP review and any
subsequent meetings to modify the IEP. See 20 U.S.C.
§§ 1414(d)(1)(B)-1415(f); see also M.M. ex rel.
DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 527
(4th Cir. 2002). Once an IEP is finalized, parents may accept
or reject it. If parents reject the IEP as failing to provide
a FAPE, they may pursue administrative remedies before an
Administrative Law Judge (“ALJ”) at a Due Process
hearing. In the interim, parents may pay for services, to
include placement in a private school, and seek reimbursement
from the state. E.S., 2018 WL 3533548, at *2
(quoting 20 U.S.C. § 1412(a)(1)(C)(iii) and Sch.
Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,
369- 70 (1985)). Either party may challenge the outcome of
the Due Process hearing by filing suit in a district court of
the United States or the appropriate state court. 20 U.S.C.
the backdrop of this remedial scheme, the Court turns to
was born in January 2006. At approximately four months old,
J.M.'s parents grew concerned about his development,
noticing significant crying and difficulty feeding. The
Parents brought J.M. to Montgomery County's Infants and
Toddlers Program, where he received occupational therapy and
other services until he was three-and-a-half years old. Tr.
about eighteen months old, the Parents first noticed
J.M.'s lack of focus. J.M underwent an assessment at
Georgetown University Hospital, which identified in J.M.
decreased muscle tone (generalized hypotonia), delayed motor
coordination and communication skills, and mild, recurring
paralysis on his left side (hemiplegia). P. Ex. 2-1; Dec. 6.
At two and a half, J.M. was diagnosed with multiple
developmental delays, including “significant language
delay, motor and self-regulatory difficulties, and emotional
immaturity and insecurity.” P. Ex. 2-2.
2009, J.M. graduated from the Infants and Toddlers Program
and began attending Montgomery County's Pre-School
Education Program (“PEP”) Classic, a program
designed to assist children with developmental challenges.
Tr. 177. In 2010, J.M. transitioned to PEP-Pilot, a program
that includes children with and without developmental
challenges. Id. at 179. While attending PEP, J.M.
also attended the Maddux School part-time. The Maddux School
is a private school serving children with developmental and
learning disabilities. J.M.'s teachers at Maddux noted
that he often displayed such symptoms as inattention, easy
distractibility, vulnerability to making careless errors,
trouble remembering multiple steps, and difficulty starting
and completing tasks independently. Pl. Ex. 2-3. In 2011,
J.M.'s speech-language pathologist also noticed his
trouble breaking tasks down to their component parts and
understanding lengthy or complex questions. She found that he
performed best when given clear structure and redirection.
Pl. Ex. 4-1.
evaluations in 2013 revealed that J.M. struggled with
expressive and receptive language, following directions, and
formulating sentences. Pl. Ex. 3-7. Dr. William Stixrud,
Ph.D., a neuropsychologist, evaluated J.M., noting that J.M.
scored below average in working memory and processing speed
but above average in verbal and nonverbal cognitive
functioning. Pl. Ex. 2-5. J.M. also exhibited above average
intellectual potential. Id. at 6. Dr. Stixrud
ultimately diagnosed J.M. with
(“ADHD”), anxiety disorder-not otherwise
specified, developmental coordination disorder, mixed
receptive-expressive language disorder, learning disorders in
Reading, Math, and Written language, and autism spectrum
disorder. Id. at 13. Dr. Stixrud also
“strongly suspect[ed] that [J.M.] will fare best in a
small and supportive special education program that can
provide intensive intervention to address his multiple areas
of need.” Id. at 14.
mother, Mrs. M.,  also observed that J.M. struggled in
extracurricular activities. J.M. had attempted to play soccer
but “he couldn't manage the amount of kids, and it
just became too overwhelming and he just cried, he shut
down.” Tr. 242. J.M. also had difficulty maintaining
focus and composure in a ten-person Hebrew class. He cried
and disrupted the class until Mrs. M., a special education
teacher herself, developed a smaller class for two other
children and J.M. Tr. 210.
September 2014, Mrs. M. requested that MCPS develop an IEP
for the 2015-16 School Year, in anticipation of J.M.'s
graduation from the Maddux School. Pl. Ex. 5-1. Shortly
thereafter, Dr. Stixrud evaluated J.M. again. Dr. Stixrud
concluded that J.M. possessed average to above average
cognitive skills alongside significant weaknesses in working
memory and processing speed. Pl. Ex. 6 at 3. Dr. Stixrud also
noted that J.M., despite working very hard, found it
difficult to remember exact directions and maintain focus
when test items became too challenging. Id. at 2.
Dr. Stixrud also recommended reassessing J.M. in one year to
determine whether J.M. should maintain the diagnosis of
autism spectrum disorder. Dr. Stixrud recognized that because
J.M.'s “progress in the social/emotional domain
appears to be very rapid . . . he may be one of the children
who, according to recent research, actually seem to
‘outgrow' their autism spectrum disorders as they
get older.” Id. at 6-7; MCPS Ex. 62-5-6.
Stixrud formalized his observations and conclusions in two
reports. The first, provided to the Parents, included a
formal diagnosis of autism spectrum disorder. MCPS. Ex. 62-6.
The report recommended:
In my view, [J.M.] has an extremely complex set of
educational needs. He requires specialized and highly
individualized instruction in all academic skill areas, and
all of his basic academic instruction will need to be
provided in individual and very small group contexts (e.g.,
no more than three children) due to his significant language
disorder and attentional limitations. Also, because of his
significant language disorder, [J.M.] requires a very strong
focus on the promotion of language skill development
throughout the school day, and this intervention will need to
be provided by professionals who are skilled at facilitating
language development (including a speech/language pathologist
and appropriately trained teachers). Additionally, given
[J.M.'s] language, attentional, motor, and social
disorders and his significant learning disabilities, he will
need specialized small group instruction in social studies
and science, as well as additional adult support in
“specials” and unstructured times such as lunch
and recess. Furthermore, [J.M.] requires social skill support
and adult facilitation of peer relationships, particularly
during unstructured periods of the school day. Finally,
[J.M.'s] motor needs will necessitate. direct [sic]
occupational therapy, In [sic] addition to his
speech/language therapy. In my opinion, meeting [J.M.'s]
needs would be impossible outside of a full-time special
response, Mrs. M. emailed Dr. Stixrud, notifying him that the
Parents were applying for J.M. to attend the Lab School of
Washington. Mrs. M. asked Dr. Stixrud whether “his
report need[ed] rewriting to fit their format or what they
[were] looking for? Any tricks or buzz words I should use in
his report?” MCPS. Ex. 54. Dr. Stixrud subsequently
revised the report, although he did not identify the new
report as “revised.” The second report omitted
the diagnosis of autism spectrum disorder, and instead
recommended that J.M. be followed “to determine whether
an autism spectrum diagnosis still applies.” Both
versions of the report also omitted J.M.'s anxiety
keeping with the substance of his original recommendations,
Dr. Stixrud's revised report now recommended:
In my opinion, [J.M.] has a highly complex set of educational
needs and requires placement in a school program that can
offer a low student/teacher ratio and that has the ability to
provide intensive intervention to remediate his significant
language-based learning disabilities. [J.M.] will require
specialized and highly individualized instruction in all
academic areas, and this instruction will need to be provided
in individual and very small group contexts. Also, I would
like to see [J.M.] receive speech/language therapy onsite and
to see the goals from his language therapy be addressed
throughout the day.
P. Ex. 6 at 7.
Stixrud later, in a sworn declaration submitted to the ALJ,
stated that revisions to reports are often requested by
parents and schools. Dr. Stixrud further noted that
“[i]f a requested revision remains consistent with my
data and professional judgment, I have no problem with
revising a report when I believe it is in the best interest
of the child.” P. Ex. 73-2.
2014, Suzanne Blattner, Ed.S., the Parents' educational
consultant, formally observed J.M. at the Maddux School. Ms.
Blattner noted that J.M. displayed “[d]ifficulty with
multi-step directions and plans” and “[n]eeds
regular check-ins to make sure he is on target.” Pl.
Ex. 7-2. Marie Marino, a Learning and Curriculum Specialist
at the Maddux School who separately observed J.M., described
him as “very anxious” and found J.M.'s short
attention span to present significant problems for him in the
educational setting. P. Ex. 10-1-2. Erin Joseph-Hamilton, an
MCPS speech-language pathologist also observed J.M., and
while not identifying ...