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D.F. v. Smith

United States District Court, D. Maryland

March 28, 2019

D.F., et al. Plaintiffs,
v.
JACK R. SMITH, et al. Defendants.

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE.

         D.F., a 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.

         The 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.

         I.

         When 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.

         During 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 Communication (Autism).

         In 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.

         In 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.

         On June 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.

         D.F.'s 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.

         After 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 Lane.

         On 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.

         D.F. 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.

         On 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.

         On 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.

         MCPS 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.

         On 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 FAPE.[1]

         D.F.'s 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.

         II.

         Under 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).

         The 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.”).

         An IEP 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 ...


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