I.O. v. Smith

I.O., et al., PLAINTIFFS, v. JACK R. SMITH, et al., DEFENDANTS.

Case No.: PWG-16-3866

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

September 24, 2018

MEMORANDUM OPINION AND ORDER

I.O. ("Student") is a "thirteen-year-old girl who has been diagnosed with Autism, Epilepsy, a Speech and Language Disorder, and Attention Deficit/Hyperactivity Disorder ('ADHD')." Jt. Stmt. Facts 1, ECF No. 42. Because of this diagnosis, I.O. is "eligible for special education services by Montgomery County Public Schools ('MCPS' or 'the school system'), under the IDEA,¹ as a student with an Other Health Impairment ('OHI')." Id. Yet she has attended private special education schools since she moved to Montgomery County, Maryland in 2013 with her parents, J.O. and E.O. ("Parents"). Id. at 1-2.

In August 2015, while I.O. was a student at the Ivymount School ("Ivymount"), a private special education school, the Parents met with representatives from MCPS to develop an individualized education program ("IEP") for I.O. and to determine her school placement. Jt. Stmt. Facts 2. Ultimately, the Central IEP ("CIEP") team, including the Parents, met on October 23, 2015 and finalized I.O.'s IEP (the "2015-2016 IEP"). 2015-2016 IEP & Oct. 29, 2015 Prior Written Notice, P-47; MCPS Oct. 23, 2015 IEP Mtg. Notes, P-48. The 2015-2016 IEP required"full-time self-contained special education in a small setting with behavior support and one hour per week of Speech and Language services, and one-to-one adult support for aggression across all academic areas." Jt. Stmt. Facts 3. Notably, it did not require behavioral data collection at specified intervals, such as the data collection every five minutes that I.O.'s one-to-one dedicated aid at Ivymount provided, and to which the Parents attributed the progress I.O. had made. Compl. ¶¶ 19-20, ECF No. 1 (sealed), ECF No. 5 (redacted). Nonetheless, the Parents agreed to it. Jt. Stmt. Facts 3.

At that meeting, MCPS decided to place I.O. at Carl Sandburg Learning Center ("Carl Sandburg"), which is a self-contained public school within MCPS. Id. The Parents did not agree, believing that only Ivymount could meet I.O.'s needs. Id. The Parents kept the Student at Ivymount for the 2015-2016 school year instead, and they sought review of the placement (though not the IEP itself) by an administrative law judge ("ALJ"). Id. at 4. The ALJ concluded that the Student's 2015-2016 IEP and placement at Carl Sandburg were reasonably calculated to provide her with a free appropriate public education ("FAPE") in the least restrictive environment. Aug. 5, 2016 ALJ Dec. 3, 24, 51; see June 20-21, 2016 Tr.; July 6-8, 2016 Tr.; July 11-12, 2016 Tr.

The Parents and the Student, by and through her Parents, filed this lawsuit against Jack R. Smith in his official capacity as Superintendent of MCPS and Montgomery County Board of Education ("the Board"). Compl., ECF No. 1 (sealed), ECF No. 5 (redacted). They ask the Court to reverse the ALJ's decision because, in their view, it is erroneous due to the ALJ's refusal to consider certain evidence, her assessment of witnesses, and the findings she reached. Compl. ¶¶ 1, 62-72. Plaintiffs claim that Defendants failed to provide I.O. with the FAPE to which she is entitled under the IDEA. Id. ¶¶ 1, 6.

While this case was pending, the Supreme Court issued its opinion in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017). At Plaintiffs' request, ECF Nos. 20, 22, and to promote judicial economy, I remanded the case for consideration in light of Endrew F. ECF No. 25. The ALJ issued a Decision on Remand on August 15, 2017, reaching the same conclusion that the Student's 2015-2016 IEP and placement were reasonably calculated to provide her with a FAPE in the least restrictive environment. ALJ Dec. on Remand 3, 26, 54.

The parties filed cross-motions for summary judgment, ECF Nos. 41, 43, as well as a Joint Statement of Undisputed Facts, ECF No. 42.² Giving due weight to the ALJ's factual findings and from my own de novo review of the entire record, I find that I.O.'s placement at Carl Sandburg was appropriate and reasonably calculated to provide her with a FAPE. Accordingly, I conclude that Plaintiffs are not entitled to judgment as a matter of law and Defendants are. Therefore, I will deny Plaintiffs' Motion for Summary Judgment, grant Defendants' Cross-Motion for Summary Judgment, and close this case.

Free Appropriate Public Education

Children with disabilities are entitled to a free appropriate public education, or "FAPE," pursuant to the IDEA. 20 U.S.C. § 1412(a)(1)(A). Maryland regulations also "govern[] the provision of FAPEs to children with disabilities in accordance with the IDEA." M.C. v. Starr, No. DKC-13-3617, 2014 WL 7404576, at *1 (D. Md. Dec. 29, 2014) (citing Md. Code Regs. Tit. 13A, § 05.01). A FAPE "includes both 'special education' and 'related services,'" which "are the support services 'required to assist a child . . . to benefit from'" instruction tailored to his or her needs. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994(2017) (quoting 20 U.S.C. § 1401(9); citing 20 U.S.C. §§ 1401(26), (29)). The public school system must provide "related services 'in conformity with the [child's] individualized education program,' or IEP." Id. (quoting § 1401(9)(D)).

A FAPE is an education that provides "meaningful access to the educational process" in "the least restrictive environment" and is "reasonably calculated to confer 'some educational benefit'" on the child with a disability. Id. (citing Bd. of Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 207 (1982)). "The benefit conferred . . . must amount to more than trivial progress," but "[t]he 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 provide an Individualized Education Program ("IEP") that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F., 137 S. Ct. at 999 (noting that "[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal").

To this end, each child with a disability must have an IEP that "state[s] the student's current educational status, annual goals for the student's education, which special educational services and other aids will be provided to the child to meet those goals, and the extent to which the child will be 'mainstreamed,' i.e., spend time in regular school classroom with non-disabled students." M.C., 2014 WL 7404576, at *1 (citing 20 U.S.C. § 1414(d)(1)(A)); see Endrew F., 137 S. Ct. at 994.

The IEP is "the centerpiece of the statute's education delivery system for disabled children." Honig v. Doe, 484 U.S. 305, 311 (1988). A comprehensive plan prepared by a child's "IEP Team" (which includes teachers, school officials, and the child's parents), an IEP must be drafted in compliance with a detailed set of procedures. [20 U.S.C.] § 1414(d)(1)(B) (internal quotation marks omitted).

These procedures emphasize collaboration among parents and educators and require careful consideration of the child's individual circumstances. § 1414. The IEP is the means by which special education and related services are "tailored to the unique needs" of a particular child. Rowley, 458 U.S., at 181.

Endrew F., 137 S. Ct. at 994. If the IEP team members disagree about the contents of an IEP, they can try to "resolve their differences informally, through a '[p]reliminary meeting,' or, somewhat more formally, through mediation," and if they do not reach agreement, they can participate in "a 'due process hearing' before a state or local educational agency." Id. (quoting 20 U.S.C. §§ 1415(e), (f)(1)(A), (B)(i), (g)). Then, "the losing party may seek redress in state or federal court." Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

In Maryland, parents may voice disagreement with their children's proposed IEPs and request due process hearings before the Maryland Office of Administrative Hearings to address their concerns. See M.C., 2014 WL 7404576, at *2 (citing 20 U.S.C. § 1415(b)(6), (f); Md. Code Ann., Educ. § 8-413; Md. Code Regs. Tit. 13A, § 05.01.15(C)(1)). "Any party can then appeal the administrative ruling in federal or state court." Id. (citing Educ. § 8-413(h)). Additionally, parents may place their children in a private school that is "appropriate to meet the child's needs" and "seek tuition reimbursement from the state," but only "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment." Id. (quoting Title 20 § 1412(a)(1)(C)(iii); citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985)) (emphasis from M.C. removed).Background³

Much of the background to this case is undisputed, and the parties provided it to the Court in their Joint Statement of Undisputed Facts.⁴

I.O. previously attended public school in Portland, Oregon and received services pursuant to an Individualized Education Program ("IEP"), under the classifications of Speech/Language Impairment and Other Health Impairment. I.O.'s family moved to Maryland in 2013 and began the special education eligibility process with MCPS in June 2013. The MCPS team found I.O. eligible as a student with an OHI due to her ADHD and seizure disorder. In October 2013, MCPS drafted an IEP and proposed placement at DuFief Elementary School in the Learning Center.

The parents did not enroll I.O. at Dufief. For the 2013-2014 year, the parents privately placed I.O. at the Katherine Thomas School ("KTS"), in Rockville, Maryland. KTS is a private special education school.

Jt. Stmt. Facts 1-2 (citations to record omitted). The...