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Board of Education of Montgomery County v. J.M.

United States District Court, D. Maryland

March 27, 2019

J.M., et al., Defendants.


          Paula Xinis United States District Judge.

         Pending 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 No. 34.

         I. Background

         a. The Individuals with Disabilities Education Act (IDEA)

         Children 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).

         Parents 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. § 1415(i)(2).

         Against the backdrop of this remedial scheme, the Court turns to J.M.'s case.

         b. Factual History[1]

         J.M. 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. 176.

         At 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.

         In 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.

         Further 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 attention-deficit/hyperactivity disorder (“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.[2] 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.

         J.M.'s mother, Mrs. M., [3] 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.

         In 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.

         Dr. 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 education program.


         In 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 diagnosis.

         In 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.

         Dr. 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.

         In fall 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 ...

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