Wagner v. Board of Educ., Montgomery County, Md, No. CIV.A.DKC 2002-0763.

Page 603

340 F.Supp.2d 603

Daniel G. WAGNER, Jr., et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY, Maryland, et al.

No. CIV.A.DKC 2002-0763.

No. CIV.A.2003-0255.

United States District Court, D. Maryland.

September 29, 2004.

COPYRIGHT MATERIAL OMITTED

Kerry Lynn Edwards, Attorney At Law, Arlington, VA, Sharon Krevor Weisbaum, Brown Goldstein and Levy LLP, Baltimore, MD, for Plaintiffs.

Jeffrey A. Krew, Attorney at Law, Ellicott City, MD, Roger W. Titus, Venable Baetjer and Howard, Rockville, MD, for Defendants/ThirdParty Plaintiff.

Wayne Darryl Steedman, Callegary and Steedman PA, Baltimore, MD, for Movant/ThirdParty Defendant.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in these related Individuals with Disabilities Education Act ("IDEA") cases are (1) the motion of Plaintiffs Daniel G. Wagner, Jr., Regina Wagner, and Daniel Wagner, Sr., renewing their request for injunctive relief pursuant to 20 U.S.C. § 1415(i)(2)(B)(iii); (2) Plaintiffs' motion for contempt and other relief, pursuant to 18 U.S.C. § 401 and Fed.R.Civ.P. 70; (3) Plaintiffs' motion for summary judgment, pursuant to Fed.R.Civ.P. 56; and (4) the cross-motion of Defendants Board of Education of Montgomery County and Jerry D. Weast for summary judgment, also pursuant to Fed.R.Civ.P. 56. The issues are briefed and the court has reviewed the administrative record. The court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the court denies Plaintiffs' motions for preliminary injunctive relief, contempt, and summary judgment, and grants Defendants' cross-motion for summary judgment.

I. The Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and accompanying regulations, 34 C.F.R. § 300 et seq., require all states that receive federal funds for education to provide each child between the ages of three and twenty-one, who has a disability, with a free, appropriate public education ("FAPE"). 20 U.S.C. § 1412(a)(1)(A). Maryland's regulations governing the provision of a FAPE to children with disabilities in accordance with the IDEA are found at Md. Regs.Code tit. 13A, § 05.01. A student with autism who is between three and twenty-one years of age is considered a student with a disability and is covered by Maryland's implementation of the IDEA. § 05.01.03(B)(70)(a).

The FAPE guaranteed by the IDEA must provide a disabled child with meaningful access to the educational process. See Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The FAPE must be reasonably calculated to confer "some educational benefit" on the disabled child. Id. at 207, 102 S.Ct. 3034. The benefit must also be provided in the least restrictive environment ("LRE") appropriate to the child's needs, with the disabled child participating to the "maximum extent appropriate" in the same activities as his or her non-disabled peers. 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.550. The IDEA does not require that a school district provide a disabled child with the best possible education, Rowley, 458 U.S. at 192, 102 S.Ct. 3034, or that the education maximize each child's potential, see Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir.1997). The benefit conferred, however, must amount to more than trivial progress. See Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D.Md.1994) (Rowley's "`some educational benefit' prong will not be met by the provision of de minimis, trivial learning opportunities.") (citing Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th Cir.1985)).

To assure delivery of a FAPE, the IDEA requires a school district to provide an appropriate Individualized Education Program ("IEP") for each child determined to be learning disabled. 20 U.S.C. § 1414(d). That IEP is formulated by a team ("IEP Team") consisting of the parents or guardian of the child, a representative of the school district, the child's regular and special education teachers, an individual who can interpret results of evaluations of the child, and, when appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B); Md. Regs.Code tit. 13A, § 05.01.07(A). The IEP must state 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 environments with non-disabled students. 20 U.S.C. § 1414(d)(1)(A).

The IDEA provides a series of procedural safeguards "designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to those decisions." MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 527 (4th Cir.2002) (internal quotation marks and citation omitted); see also 20 U.S.C. § 1415. Among those safeguards, a parent must be provided prior written notice of a decision to propose or change the educational placement of a student. Md. Regs.Code tit. 13A, § 05.01.13(B). A parent may also request a meeting at any time to review and, as appropriate, revise the student's IEP. Md. Regs.Code tit. 13A, § 05.01.08(B)(3).

If the parents are not satisfied with the IEP, they may "present complaints with respect to any matter related to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child." 20 U.S.C. § 1415(b)(6). After such a complaint has been received, the parents also are entitled to request a due process hearing conducted by the state or local educational agency. 20 U.S.C. § 1415(f). In Maryland, the Maryland Office of Administrative Hearings conducts the due process hearing. Md.Code Ann., Educ. § 8-413; Md. Regs.Code tit. 13A, § 05.01.15(C)(1). Any party can then appeal the administrative ruling to federal or state court. Md.Code Ann., Educ. § 8-413(h).

Recognizing that the IDEA's substantial procedural protections could often take a significant amount of time in which to run their course, Congress also saw fit to include in the IDEA a provision dealing directly with the child's placement during the pendency of any proceedings challenging a proposed IEP. Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 300 (4th Cir.2003). The "stay put" provision requires that "during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child...." 20 U.S.C. § 1415(j).

When a FAPE is not provided to a disabled student, the student's parent may place the child in a private school and then seek tuition reimbursement from the state. See Sch. Comm. of Burlington v. Dep't of Ed., 471 U.S. 359, 369-70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The parent will recover if (1) the placement proposed by the state was inadequate to offer the child a FAPE, and (2) the private education services obtained by the parents were appropriate to the child's needs. Id. at 370, 105 S.Ct. 1996.

II. Background

This memorandum opinion and accompanying Order resolve motions in two related cases, Wagner v. Bd. of Educ. of Montgomery County, DKC-02-CV-763 ("Wagner I"), and Wagner v. Bd. of Educ. of Montgomery County, DKC-03-CV-255 ("Wagner II").

Plaintiff Daniel Wagner, born in January 1996, is autistic. In August 1999, he began receiving educational services from Community Services for Autistic Adults and Children ("CSAAC"), a private agency that provides a home based special education program for autistic children.¹ The services provided to Daniel were modeled on the Lovaas method, a discrete trial instruction, applied behavioral approach to teaching children with autism. The services were funded by the Montgomery County Public School System ("MCPS") in accordance with the IDEA. MCPS is governed by Defendant Montgomery County Board of Education. Defendant Jerry Weast is superintendent of MCPS.

On March 8, 2001, Daniel's IEP Team developed an IEP ("March IEP") that recommended that he continue in the CSAAC program for the school year July 2, 2001 through June 30, 2002. This was the last IEP upon which all parties agreed. As stated by the Fourth Circuit in Wagner:

Problems arose by October or November of 2001, when the relationship between the Wagners and some of the personnel at CSAAC deteriorated. On November 14, 2001, CSAAC ceased sending its employees to the Wagner home, effectively cutting off the provision of services. On November 28, 2001, when it became apparent that CSAAC would not perform as obligated, the School Board prepared and proposed a new IEP for Daniel. The new IEP contemplated provision of services at Maryvale Elementary School (a MCPS school). By January of 2002, the Wagners rejected the new IEP and initiated due process proceedings.

On February 14, 2002, the ALJ conducted a hearing to consider the proposed change in placement for the remainder of the school year. At the hearing, counsel for CSAAC stated that CSAAC was willing to provide services to Daniel in order to satisfy the "stay put" provision of the IDEA. The very next day, however, the offer was withdrawn. In a letter dated March 6, 2002, the School Board then offered the Wagners the "Maryvale Plus" plan, which consisted of the aforementioned new IEP proposal augmented with more one-on-one discrete trial/systematic instruction (to reach a full 20 hours/week) at Maryvale and 10 hours in regular kindergarten at Maryvale, with an instructional assistant.

335 F.3d at 299.

The Wagners rejected the "Maryvale Plus" plan, and, on March 12, 2002, came to this court seeking a preliminary injunction to effect their "stay put" rights under the IDEA. On...