United States District Court, D. Maryland
K.M., by and through her Parents and Next Friends, C.M. and C.M.M., Plaintiffs,
BOARD OF EDUCATION OF MONTGOMERY COUNTY, Defendant.
MEMORANDUM OPINION & ORDER
Xinis, United States District Judge.
before the Court is Plaintiffs' Motion to Reconsider and
for Leave to Amend Pleadings. ECF No. 53. The matter has been
fully briefed and no hearing is necessary. Loc. R. 105.6. For
the following reasons, the Court DENIES Plaintiffs'
Court has written extensively on this case and incorporates
its previous opinion here. See ECF No. 50. To
summarize, K.M. is a high school student with autism who has
been educated in the Defendant Board of Education of
Montgomery County (“MCPS”) system under an
Individualized Education Plan (“IEP”). Plaintiffs
contend that K.M. needs a facilitated communicator to
“reset” a letter board that K.M. uses in school.
ECF No. 53-5 ¶ 17. Plaintiffs further aver that such
facilitated communicators are used similarly in MCPS'
Facilitated Communication Pilot Program for other autistic
students. Id. K.M. has maintained that MCPS'
refusal to provide such facilitated communication constitutes
denial of reasonable accommodations in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12131 et seq., and Section 504
of the Rehabilitation Act (“§ 504”), 29
U.S.C. §§ 701 et seq., and has litigated
this matter vigorously before this Court as solely an ADA and
§ 504 claim.
this year, the Court granted MCPS' motion to dismiss the
Amended Complaint because Plaintiffs failed to exhaust
administrative remedies under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., prior to filing suit. The
Court more particularly determined that the gravamen of the
Amended Complaint challenging MCPS' refusal to provide a
facilitated communicator amounted to denying K.M. a free and
appropriate public education (“FAPE”) as
guaranteed to students with a disability pursuant to the
IDEA. Plaintiffs now seek reconsideration of this Court's
decision and propose to file a Second Amended Complaint.
Because the proposed Second Amended Complaint is still
fatally deficient, the Court denies the requested amendment
as futile and will allow its previous determination to stand.
Standard of Review
seek reconsideration pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure. However, the United States Court of
Appeals for the Fourth Circuit has made clear that, in this
context, this Court “need not concern itself”
with the legal standards customarily applicable to such
motions, but rather “need only ask whether the
amendment should be granted, just as it would on a
prejudgment motion to amend pursuant to Fed.R.Civ.P.
15(a).” Katyle v. Penn. Nat'l Gaming,
Inc., 637 F.3d 462, 471 (4th Cir. 2011). This Court will
thus review the proposed Amended Complaint for
“prejudice, bad faith, or futility.” Id.
“should freely give leave” to amend “when
justice so requires, ” Fed.R.Civ.P. 15(a)(2), unless
amendment would prejudice the opposing party, the movant has
acted in bad faith, or amendment would be futile. Arora
v. James, 689 Fed.Appx. 190, 190 (4th Cir. 2017).
Amendment is futile when it would be subject to dismissal for
failure to state a legally cognizable claim. Oliver v.
Dep't of Pub. Safety & Corr. Servs., 350
F.Supp.3d 340, 346 (D. Md. 2018). The Court, therefore,
reviews the proposed amended claims for legal sufficiency,
taking as true all facts pleaded and drawing all reasonable
inferences most favorably to the Plaintiffs.
have changed very little in the Proposed Second Amended
Complaint when compared to the First Amended Complaint. The
Proposed Second Amended Complaint still focuses on
facilitated communication as part of MCPS' educational
program provided for younger autistic students.
Compare ECF No. 29 ¶¶ 12-15, with
ECF No. 53-6 ¶¶ 12-15. The Proposed Second Amended
Complaint still makes the robust case that K.M.
requires a communication facilitator “especially as she
starts to learn in the general education curriculum, ”
because “K.M. has huge gaps in her learning, has a lot
to get caught up on, and seems to be asking for the
challenge.” Compare ECF No. 29 ¶¶
22, 24 (emphasis added), with ECF No. 53-6
¶¶ 23, 25. Indeed, the Proposed Second Amended
Complaint still extols the virtues of a
communication facilitator using a laminated letterboard
precisely because K.M. could achieve such educational
milestones as reading and discussing The Great
Gatsby and Animal Farm. Compare ECF
No. 29 ¶ 25, with ECF No. 53-6 ¶ 26. The
only new averred facts are that in June of 2018, K.M.'s
parents asked to hire a private facilitator to accompany K.M.
to school, which MCPS would not allow. ECF No. 53-6 at
¶¶ 21, 45. Plaintiffs now ask this Court to order
that MCPS permit a private facilitator for which the parents
will pay in the event MCPS does not provide K.M.'s
“preferred manner” of facilitated communication.
Id. ¶ 47.
Plaintiffs' proposed amendment amounts to little more
than a legal sleight of hand. The protection afforded under
the IDEA is to ensure that the state provides
qualified students a FAPE, and a FAPE includes provision of
“supportive services” that allow the student to
access her education. 20 U.S.C. § 1401(26)(a). It would
do violence to the basic tenets of the IDEA to allow parties
to carve out services otherwise squarely contemplated as part
of a “Free and Appropriate Public Education,
” and say denial of such services triggers solely ADA
and § 504 protection simply because the parents are
willing to pay for it. Whether a service is part of FAPE
simply cannot turn on who provides it, but the
purpose of the service itself.
bottom, Plaintiffs' claim-that K.M. needs a facilitated
communicator to access the educational curriculum-is still
the same. By contrast, nothing in the Proposed Second Amended
Complaint would permit even the plausible inference that K.M.
needs facilitated communication for non-educational
activities of daily living such as entering the building,
using the restroom, eating lunch at the cafeteria, or
enjoying recess outside. Cf. Fry v. Napoleon Cmty.
Sch., 137 S.Ct. 743, 756 (2017) (the gravamen of an ADA
claim of a wheelchair-bound student where his school building
lacks access ramps is “equality of access to public
facilities, not adequacy of special education”);
see also K.M. by and through Markham v. Tehachapi Unified
Sch. Dist., 2018 WL 2096326, at *5, (E.D. Cal. May 7,
2018) (medically prescribed therapist necessary to allow
autistic student “access to the school itself”
and is necessary to “maintain her safety-not her
K.M.'s claim as articulated in the Proposed Second
Amended Complaint is cognizable under the IDEA, the ADA and
§ 504. Fry, 137 S.Ct. at 755; see also Z.G.
by & through C.G. v. Pamlico Cty. Pub. Sch. Bd.
of Educ., 744 Fed.Appx. 769, 778-79 (4th Cir. 2018);
Tawes v. Bd. of Educ. of Somerset Cty., No.
RDB-17-2375, 2017 WL 6313945, at *5 (D. Md. Dec. 11, 2017);
Vlasaty v. Wake Cty. Pub. Sch. Sys. Bd. of Educ.,
No. 17-78-D, 2018 WL 4515877, at *6 (E.D. N.C. Sept. 20,
2018). Plaintiffs' options thus remain unchanged; they
may pursue their ADA and § 504 claims as pleaded in the
Proposed Second Amended Complaint only if they first exhaust
administrative remedies under the IDEA. Plaintiffs have
failed to so exhaust. See ECF No. 50. As a result,
the Proposed Second Amended Complaint, if allowed, will
suffer the same fate as the First Amended Complaint.
it is this 19th day of August 2019, by the United
States District Court for the District of Maryland, ORDERED
that the Plaintiffs' Motion to Reconsider and for Leave
to Amend ...