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, disputing whether the parents are
entitled to reimbursement for their unilateral placement of
C.B. in a private school. ECF Nos. 17-18. C.B., and his
parents, E.B. and P.B., appeal the decision rendered in
C.B. v. Montgomery County Public Schools, OAH No.
MSDE-MONT-OT-07-22806, issued February 15, 2018 by Louis N.
Hurwitz, 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 following reasons, C.B.'s motion for
summary judgment is denied (ECF No. 17) and Jack R. Smith and
Montgomery County Board of Education (collectively,
“MCPS”)'s motion for summary judgment is
granted. ECF No. 18.
The Individuals with Disabilities Education Act
matter comes before this Court pursuant to the Individuals
with Disabilities Education Act (“IDEA”). 20
U.S.C. § 1412(a)(1)(A). IDEA mandates that all children
identified with a covered disability be given a free
appropriate public education, or “FAPE.” A FAPE
must provide 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” in a child's education, 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 education 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.”).
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. Parents are afforded the opportunity to
participate in the creation of the IEP, 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 School
District. 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 February 2005. P. Ex. 3-7. His family moved to
Montgomery County, Maryland, in June 2012, just prior to his
first-grade year. P. Ex. 1-4. By this time, C.B. had been
diagnosed with Attention Deficit/Hyperactivity Disorder
(“ADHD”), Combined Type and Developmental
Dyslexia, with additional difficulties in fine and visual
motor coordination. P. Ex. 2-12. C.B. possesses higher than
average intelligence with a lower than average processing
first grade, C.B.'s IEP provided him with one hour of
in-class special education and two hours of out-of-class
special education. MCPS Ex. 52-24. For instructional and
testing accommodations, C.B. was given a human reader or
audio recording of selected sections of test; monitoring of
test response; graphic organizers; extended time; multiple or
frequent breaks; and reduced distractions to the student and
to other students. Id. at 11-13. C.B. was also given
a variety of supplementary aids, services, program
modifications and supports to assist C.B. in working
independently, organization, proofreading, following
directions, and writing. Id. at 14- 17.
his first-grade year, C.B. was reading and writing at grade
level. P. Ex. 5-4; MCPS Ex. 52-5. His progress report card
reflected that he was proficient in all topics by the end of
the year. P. Ex. 6-1.
second-grade IEP similarly provided him with one hour of
in-class special education for his writing and attention, and
1.5 hours out-of-class special education for his writing. P.
Ex. 7-21. C.B. also received similar instructional and
testing accommodations as the previous year. Id. at
10-11. For supplementary aids, the IEP added a “flash
pass” to take breaks and sensory objects (stress ball,
seat cushion, crunchy snacks, etc.) to aid with focus and
frustration management. Id. at 12-15.
second grade, C.B. was reading close to a year above grade
level and his writing was on grade level when he was provided
significant support. P. Ex. 10-4. C.B. met two of his written
language objectives in 100% of trials and met the third
objective (capitalization) in three of five trials. P. Ex.
9-1. C.B.'s oral language abilities were noted as a
strength. P. Ex. 11-2. By the end of the year, C.B.'s
progress report card once again showed proficiencies in every
topic, exceeded standards in earth and space sciences, and
“in progress” for “writing: use of
language.” P. Ex. 12-1; see also MCPS 50-1
(explaining grading system).
third-grade IEP provided an hour of in-class, and 1.5 hours
out-of-class, special education for writing. P. Ex. 14-27.
The instructional and testing accommodations and
supplementary aids remained largely the same. Id. at
14-17-22. In third grade, C.B. was noted to be a “very
strong reader.” P. Ex. 14-7. His oral language was at
grade level, and he was noted to be “very bright and
social.” Id. at 6, 9. The state standardized
assessments placed C.B. within the district and state
averages for reading and writing. MCPS Ex. 46. C.B. was noted
to make sufficient progress to meet his written language
goals, although it is not indicated that he actually met the
goals. P. Ex. 14-26. His progress report card showed
proficiency across all topics, with areas where C.B. exceeded
the standard expectations. P. Ex. 17-1.
fourth-grade IEP-his final year at MCPS -provided 2.5 hours
of in-class special education for written expression,
mathematics, attention/task completion, and organization, as
well as 1.5 hours out-of-class special education for writing.
P. Ex. 23-32. The IEP also provided for a variety of
instructional and testing accommodations and supplementary
aids to include use of visual cues and organizers, breaks,
organizational aids, and preferential seating. Id.
fourth-grade, C.B. continued to read above grade level,
exhibiting strengths in reading accurately and fluently, and
in oral comprehension. P. Ex. 23-8. C.B.'s oral language
skills were on grade level as were his written language
skills, with accommodations. Id. at 7-8. Throughout
the year, C.B. made sufficient progress to meet all goals.
MCPS Ex. 44-8-16. By the end of the year, C.B. exceeded
standards for music and was proficient in all other classroom
topics, except that he was “in progress” for
reading literature, informative/explanatory writing, and
writing process, production, and research. MCPS Ex. 43-3. In
the state standardized assessment, C.B. met expectations for
reading, but was below expectations in writing. MCPS Ex.
was also noted to be bright and social, as well as compliant
with redirection. P. Ex. 23-10; MCPS Ex. 8-5. However, in the
fall of C.B.'s fourth-grade year, Dr. Eileen Solomon
noted that C.B. was experiencing clinically significant
anxiety. P. 25-30. His anxiety centered on his ability to
perform work well. Tr. 303. Dr. Solomon concluded that
C.B.'s anxiety followed, or was “secondary to,
” his learning difficulties. Id.
proposed IEP for C.B.'s fifth-grade year provided four
hours of weekly in-class special education for written
expression, mathematics, attention/task completion,
organization, and fluency. P. Ex 36-37. The IEP also provided
1.5 hours weekly out-of-class special education for writing
and added counseling time 40 minutes per month to address
C.B.'s anxiety. Id. The IEP also maintained the
same instructional and testing accommodations as the previous
year, id. at 14-19, and added a variety of
supplementary aids, to include an editing checklist, sensory
breaks, a daily schedule, and menu of coping strategies.
Id. at 20-25. This IEP included an additional goal
of enhancing C.B.'s reading abilities. Id. at
light of C.B.'s slower progress and his increased anxiety
during the fourth-grade year, C.B.'s parents grew
concerned that the MCPS IEP did not provide C.B. a FAPE.
Consequently, the Parents enrolled C.B. at the Lab School of
Washington. MCPS Ex. 21. The Lab School's assessments
determined that, ...