United States District Court, D. Maryland
D.F., et al. Plaintiffs,
JACK R. SMITH, et al. Defendants.
J. MESSITTE UNITED STATES DISTRICT JUDGE.
minor by, his parents and next friends M.F. and S.F.
(collectively “D.F.'s parents” or
“Parents”), sues Jack R. Smith, Superintendent of
Montgomery County Public Schools, and the Montgomery County
Board of Education (“Smith” or
“MCPS”), pursuant to the Individuals with
Disabilities Education Improvement Act, 20 U.S.C. § 1400
et seq. (AIDEA@). D.F.'s parents contend that MCPS denied
D.F. a free appropriate public education (“FAPE”)
by recommending him for placement in a specialized public
school program instead of a private special education day
school. D.F.'s parents seek reimbursement for the costs
of educating D.F. at the private school, which his parents
selected unilaterally. D.F.'s parents dispute the
findings of an Administrative Law Judge that they were not
entitled to reimbursement because they had not established
that the public school special education program recommended
by MCPS was not reasonably calculated to provide D.F. with a
FAPE in the least restrictive environment.
parties have filed cross-motions for summary judgment. For
the reasons that follow, the Court will DENY D.F.'s
Motion and GRANT Smith's Cross-Motion.
D.F. was approximately eighteen months old, his parents
noticed that he struggled with language and social skills and
did not respond when spoken to. Subsequent pediatric
evaluations led to a diagnosis of Pervasive Developmental
Disorder and a strong suggestion that D.F. was on the Autism
spectrum. After moving to Montgomery County in January 2012,
when D.F. was two years old and preparing to enter preschool,
D.F.'s parents contacted the Montgomery County Infants
and Toddlers Program (“MCTIP”), which recommended
that D.F. begin receiving speech/language therapy,
occupational therapy, and physical therapy. D.F. began these
treatments in February 2012. In July 2012, MCTIP reassessed
D.F. and recommended that he be found eligible for special
education services. D.F. began attending MCPS preschool for
the 2012-13 school year, during which time he attended the
Preschool Education Program Intensive Needs Class
(“PEP-INC”) at Strawberry Knolls Elementary
School (“Strawberry Knolls”). D.F. attended
PEP-INC for three hours daily, five days a week, where he
received specialized instruction, speech/language therapy,
and occupational therapy, while also continuing to receive
private behavioral, speech, and physical therapy outside of
school. D.F. attended PEP-INC at Strawberry Knolls for the
2012-13 school year, then attended PEP-INC at Thurgood
Marshall Elementary School (“Thurgood Marshall”)
for the 2013-14 and 2014-15 school years.
the summer of 2014, Dr. Daniel Shapiro, a developmental
pediatrician, evaluated D.F. with respect to his continued
delayed development. Dr. Shapiro diagnosed D.F. with Global
Developmental Delays, such as severe Mixed
Expressive-Receptive Language Disorder, Developmental
Coordination Disorder, Uneven Sensory Profile, and Executive
Dysfunction with possible ADHD. Secondary to this diagnosis,
he determined that D.F. had a Disorder of Social
October 2014, D.F.'s parents met with Montgomery County
Public Schools (“MCPS”) personnel, who concluded
that additional information was required to update his
disability classification. MCPS completed a psychological
examination of D.F. in November 2014 and interviewed his
teacher at PEP-INC, who reported that D.F. demonstrated
significant communication difficulties, avoided challenging
activities, became upset if his ritualized behaviors were
disturbed, and on some days in school seemed to be “off
in his own world.” MCPS found D.F. eligible for
services as a student with Autism in December 2014.
March 2015, Dr. Lisi Levisohn, a pediatric neuropsychologist,
evaluated D.F. at the request of D.F.'s parents and
recommended that his educational instruction include
specialized one-to-one support from a trained professional in
a program with speech/language therapy, occupational therapy,
and social-relating interventions integrated throughout his
school day. Based on Dr. Levisohn's report, D.F.'s
parents identified the Katherine Thomas School
(“KTS”), a private special education day school,
as their preferred school for D.F. After applying to KTS,
D.F. was accepted there on May 7, 2015.
11, 2015, D.F.'s parents, their educational consultant,
Rich Weinfeld, and Dr. Levisohn attended a meeting with MCPS
officials to discuss D.F.'s upcoming Kindergarten
placement and his Individualized Education Program
(“IEP”). MCPS proposed placing D.F. at the
School-Based Learning Center for Students with Autism at
Jones Lane Elementary School (“Jones Lane”) for
the 2015-16 school year. D.F.'s parents did not believe
that he had made developmental progress while attending
PEP-INC, and they requested that D.F. be placed in a school
environment where he could receive instruction from a
one-to-one aide dedicated to his development throughout the
school day. Because Jones Lane did not offer one-to-one
instruction, D.F.'s parents enrolled him unilaterally at
KTS for the 2015-16 school year.
parents contacted MCPS through their counsel on March 7, 2016
to request a meeting to discuss updating D.F.'s IEP for
the 2016-17 school year based on his experiences at KTS. In
May, before the IEP meeting, an MCPS investigator observed
D.F. at KTS, with the consent of KTS personnel. After the
observation, D.F.'s parents allege that MCPS did not
provide them with the investigator's notes or report, nor
did MCPS agree to their request to postpone the IEP meeting.
Because of the scheduling dispute, D.F.'s parents
ultimately did not attend the IEP meeting on May 27, 2016.
resolving the scheduling dispute, D.F.'s parents and MCPS
officials held another meeting to discuss D.F.'s IEP on
July 28, 2016. One of D.F.'s teachers at KTS also
attended this meeting, at which D.F.'s parents and the
KTS teacher emphasized D.F.'s need for one-to-one support
during the school day. MCPS proposed an IEP for the 2016-17
school year that provided that D.F. would receive all
instruction during the school day in environments with a
student-teacher ratio of 2:1 or smaller. Both D.F.'s
parents and MCPS officials stipulated to refer to the 2:1
student-teacher ratio as a “dyad.” D.F.'s
2016-17 IEP also continued to recommend placement at Jones
August 5, 2016, counsel for D.F.'s parents informed MCPS
in writing that they did not believe D.F.'s 2016-17 IEP
would provide him with a FAPE and requested that MCPS fund
D.F.'s placement at KTS for the 2016-17 school year. MCPS
responded by letter on August 9, 2016, declining to place and
fund D.F. at KTS and asserting that an IEP placing D.F. at
Jones Lane would provide him a FAPE.
attended KTS for the 2016-17 school year. During that school
year, D.F.'s parents retained a new educational
consultant, Amy Mounce. Ms. Mounce observed D.F. at KTS on
October 13, 2016. On October 18, 2016, D.F.'s parents and
Ms. Mounce visited Jones Lane to determine if it would be a
suitable placement for D.F. Based on her observations, Ms.
Mounce drafted a report, dated November 15, 2016,
recommending that D.F. receive instruction in a 1:1
student-teacher ratio and that he continue attending KTS.
March 31, 2017, D.F.'s parents and MCPS officials met to
develop D.F.'s IEP for the 2017-18 school year. MCPS
proposed that D.F.'s IEP include the same student-teacher
ratio and school placement as in D.F.'s IEP for the
2016-17 school year. D.F.'s parents disagreed, and on
August 17, 2017, they informed MCPS in writing that D.F.
would attend KTS for the 2017-18 school year. On August 30,
2017, MCPS again denied D.F.'s parents' request for
reimbursement for expenses incurred as a result of enrolling
D.F. at KTS.
April 24, 2017, D.F.'s parents filed a Due Process
Complaint with the Maryland Office of Administrative Hearings
(“OAH”), alleging that MCPS had failed to provide
D.F. with a FAPE and seeking reimbursement for enrolling D.F.
unilaterally at KTS. The Complaint also requested a hearing
to review D.F.'s IEP, pursuant to IDEA. 20 U.S.C. §
1415(f)(1)(A). A hearing at which both parties presented
exhibits and witness testimony was held from September 11-15,
2017 before Deborah S. Richardson, an OAH Administrative Law
Judge (“ALJ” or “ALJ Richardson”). At
the hearing, D.F.'s parents presented testimony from six
witnesses, including themselves, Dr. Levisohn, and Ms.
Mounce. D.F.'s parents also presented testimony from
JoAnn Pellegrino, a private speech-language therapist who had
worked with D.F. for approximately two hours per week since
June 2015, and Shawna Page, the senior speech-language
pathologist at KTS who had interacted with D.F. every day
during the period of his enrollment at KTS. ALJ Richardson
recognized Dr. Levisohn as an expert in developmental
neuropsychology, Ms. Mounce as an expert in special
education, Ms. Pellegrino as an expert in speech-language
pathology, and Ms. Page as an expert in speech-language
pathology with a focus in early childhood development.
presented testimony from four witnesses: Melissa Diggs, Faith
Fischel, Ravinder Basi, and Christine Shrake. All MCPS
witnesses were MCPS employees with professional experience in
treating students with autism. Three of them had extensive
classroom experience with D.F. Ms. Fischel, a speech-language
pathologist, supervised the PEP-INC classroom at Thurgood
Marshall that D.F. attended for the 2014-15 school year. Ms.
Basi, also a speech-language pathologist, worked with D.F.
approximately twice a week for two years when he was enrolled
in the PEP-INC and in Basic Concepts, a summer education
program that D.F. also attended. Ms. Shrake, an occupational
therapist, worked with D.F. approximately three times per
week from September 2013 until June 2015, when he attended
the PEP-INC at Thurgood Marshall. Ms. Diggs observed D.F. at
KTS on May 20, 2016, consulted on all three of the meetings
of his IEP team, and supervised the program for autistic
students at Jones Lane. The ALJ recognized Ms. Diggs as an
expert in special education with a focus in autism, Ms.
Fischel as an expert in speech-language pathology with a
focus on early childhood disabilities and autism, Ms. Basi as
an expert in speech-language pathology with a focus on early
childhood education and autism, and Ms. Shrake as an expert
in occupational therapy with a focus on preschool early
childhood education and autism.
October 13, 2017, ALJ Richardson-based on the witness
testimony and other evidence presented at the administrative
hearing-found that MCPS had developed an appropriate IEP
reasonably calculated to provide D.F. with a
parents filed the present action on January 10, 2018, naming
the Montgomery County Board of Education and Jack R. Smith,
superintendent of MCPS, as defendants. Defendants filed their
Answer on February 2, 2018. The parties agreed to a briefing
schedule for filing Motions for Summary Judgment that they
amended twice during the spring and summer of 2018.
Plaintiffs filed their Motion for Summary Judgment on August
10, 2018. Defendants filed their Cross-Motion for Summary
Judgement and Response in Opposition to Plaintiffs'
Motion on September 21, 2018. Plaintiffs filed their
Opposition to Defendants' Cross-Motion on October 19,
2018. Defendants filed their Reply on November 13, 2018. On
December 10, 2018, the Court held a hearing on the Motions
during which both parties presented their arguments.
IDEA, students with disabilities are assured a Afree
appropriate public education@ (AFAPE@). 20 U.S.C. §
1412(a)(1)(A). The vehicle for providing a student with a
FAPE is the Individualized Education Plan
(“IEP”), which is developed by an IEP team
consisting of school system administrators and educators, the
student's parents, and experts in special education. 20
U.S.C. § 1414(d)(1)(B). The IEP must be tailored to the
specific needs of the student and include (1) the
student's “present levels of academic achievement
and functional performance, ” (2) a list of
“measurable annual goals” for the student, (3) a
system for measuring the student's progress toward his or
her annual goals, (4) a “statement of the special
education and related services and supplementary aids and
services” to be provided to the student, and (5) an
“explanation of the extent . . . to which the [student]
will not participate with nondisabled children” in the
school environment. 20 U.S.C. § 1414(d)(1)(A). IDEA
requires that students be placed in the “least
restrictive environment, ” such that they are
“educated with children who are not disabled” to
the “maximum extent appropriate.” 20 U.S.C.
§ 1412(a)(5). If a student's parents dispute the
sufficiency of the IEP proposed for their child, they may
file a complaint and seek a due process hearing before an
impartial administrative officer. 20 U.S.C. §
1415(b)(6), (f). The parents are entitled to file an action
in federal district court if they are “aggrieved by the
findings and decision” of the administrative hearing
officer. 20 U.S.C. § 1415(i)(2).
goal of IDEA is that each student should receive an education
appropriate to his or her unique needs, although this does
not necessarily mean entitlement to an education that
maximizes individual potential. Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S.
176, 199 (1982). If the student's IEP creates an
educational program that is “reasonably calculated to
enable the child to receive educational benefits, ”
then the IEP satisfies the school district's obligation
to provide a FAPE. Id. at 207. Moreover, IDEA
distinguishes between the child's educational needs, as
to which the Act insures funding, and the child's medical
needs, which are ordinarily the financial responsibility of
the child's parents. See Clovis Unified Sch. Dist. v.
California Office of Admin. Hearings, 903 F.2d 635, 643 (9th
Cir. 1990) (“[O]ur analysis must focus on whether [the
child's] placement may be considered necessary for
educational purposes, or whether the placement is a response
to medical, social, or emotional problems that [are]
necessar[ily] quite apart from the learning process.”).
must be “reasonably calculated to enable a child to
make progress appropriate in light of the child's
circumstances.” Endrew F. v. Douglas Cty. Sch. Dist.
RE-1, 137 S.Ct. 988, 999 (2017). A “reasonably
calculated” IEP “reflects a recognition that
crafting an appropriate program of education requires a
prospective judgment by school officials.” Id.
Crafting an IEP is a fact-intensive inquiry into a
student's past performance that incorporates “the
expertise of school officials” and “the input of
the child's parents or ...