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C.B. v. Smith

United States District Court, D. Maryland

July 9, 2019

C.B., et al., Plaintiffs,
v.
Smith, et al., Defendants.

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Background

         A. The Individuals with Disabilities Education Act (“IDEA”)

         This 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.”).

         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. 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. § 1415(i)(2).

         Against the backdrop of this remedial scheme, the Court turns to C.B.'s case.

         B. Factual History[1]

         C.B. 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 speed. Id.

         During 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[2] to assist C.B. in working independently, organization, proofreading, following directions, and writing. Id. at 14- 17.

         During 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.

         C.B.'s 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.

         During 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).

         C.B.'s 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.

         C.B.'s 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. at 19-22.

         In 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. 46-5.

         C.B. 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.

         The 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 34.

         In 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, ...


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