S. D., et al. v. Starr et al

Filing 23

MEMORANDUM. Signed by Judge J. Frederick Motz on 11/30/12. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
S.D., et al.
v.

JOSHUA P. STARR, et al.

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Civil No. JFM-12-149

MEMORANDUM
Plaintiffs Jason and Amy Diaz (“parents”), in their own right and on behalf of their son,
S.D., bring this suit against Joshua P. Starr, in his official capacity as the superintendent of the
Montgomery County Public Schools (“MCPS”), and the MCPS (collectively “defendants”)
alleging violations of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq. Under the IDEA, the parents requested an administrative due process hearing,
claiming defendants failed to provide S.D. a free appropriate public education (“FAPE”) as
required by the IDEA and should, therefore, place and fund S.D. at the Katherine Thomas School
(“KTS”) during the 2011-2012 school year. In his decision of December 21, 2011,1 state
administrative law judge Brian Zlotnick (“ALJ”) found defendants did provide S.D. a FAPE and,
thus, had no obligation to pay tuition for S.D. at KTS.
On January 13, 2012, S.D.’s parents filed a civil action in the United States District Court
for the District of Maryland, pursuant to the IDEA, 20 U.S.C. § 1415(i)(2), seeking reversal of
the ALJ’s decision along with attorneys’ fees, costs, and other declaratory relief. The parties
have filed cross-motions for summary judgment. The issues have been fully briefed, and no
hearing is necessary. See Local Rule 105.6. For the following reasons, the court denies
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Citations to ALJ Zlotnick’s December 21 Opinion are referred to as “ALJ Decision at __.”
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plaintiffs’ motion for summary judgment and grants defendants’ cross motion for summary
judgment.
I.

Background

The following facts are undisputed by the parties. S.D. was born prematurely on
November 10, 2003. (ALJ Decision at 8.) Consequently, he has multiple health impairments
including chronic lung disease, Gastroesophageal Reflux Disease (GERD), and Attention Deficit
Hyperactive Disorder (ADHD) and receives nutrition and hydration through a gastrostomy tube.
(Id.) Because of his chronic lung disease, he is susceptible to contracting viruses and infections
that could develop into pneumonia. (Id. at 31.)
MCPS has found S.D. eligible to receive services under the IDEA as a child with an
Other Health Impairment. (Compl. ¶ 9.) For the 2008-2009 school year, S.D. received preschool special education services at his home due to his medical condition. (ALJ Decision at
31.) At a special education mediation on July 13, 2009, S.D.’s parents and MCPS agreed that
S.D. would attend classes at Little Bennett Elementary School (“LB”) during the 2009-2010
school year for half days with a dedicated para-educator and continue to receive in-home special
education services under MCPS’ Home and Hospital Teaching program (“HHT”). (Id.) S.D.’s
mother and appropriate agents of the school system attended a meeting on August, 11, 2009
where they developed an individualized educational plan (“IEP”) reflecting that agreement
(“2009 IEP”). (Id. at 9.)
That fall S.D. attended kindergarten classes at LB, pursuant to the 2009 IEP, but his
mother withdrew him from school on November 4, 2009 due to a “respiratory flare-up” she
feared would result in pneumonia. (Id. at 12.) During the time he attended LB, S.D. did not
exhibit signs of illness although he was absent 10.5 days in September 2009 and 3 days in

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October 2009. (Id. at 10, 19.) According to the MCPS teacher and staff, he was able to access
the general education program and work independently without the para-professional assigned to
him. (Id. at 11.)
After his November removal from LB, S.D. was not hospitalized for the “respiratory
flare-up” and did not develop pneumonia. (Id. at 12.) At an IEP meeting on November 11,
2009, however, S.D.’s mother indicated that LB was not an appropriate setting for him due to his
medical issues. (Id.)
On March 16 and December 6, 2010, further IEP meetings were held to develop
educational goals and objectives for S.D. who continued the HHT program at home following his
physician’s recommendation. (Id. at 17.) On February 12 and 26, 2011, Amy Mounce, an
education expert retained by S.D.’s mother, conducted an evaluation of S.D. and made
educational recommendations that the IEP team considered at a meeting on May 19, 2011. (Id.
at 20-21.) The IEP developed at that meeting (“2011 IEP”) laid out S.D.’s education program
for the remainder of the 2010-2011 school year and the 2011-2012 school year. (Id.)
The 2011 IEP proposed full-time enrollment for S.D. at LB for the 2011-2012 school
year upon medical release to return to school. (Id. at 25.) It proposed 12.5 hours of inclusion
special education instruction and 5 hours of pull-out related services per week along with other
occupational therapy, speech and language, and physical therapy sessions. (Id.) Since
November 4, 2009, however, S.D. has continued to receive HHT services as well as related
occupational therapy, physical therapy, and speech and language services in the basement of his
home pursuant to continuing HHT applications completed by his physician, Dr. Bautista. (Id. at
32.)

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On June 28, 2011, the parents filed a due process hearing request seeking placement for
S.D. at KTS, a private school certified by the State for special education placements, with
funding provided by MCPS. (Id. at 25-26.) The due process hearing took place over the course
of eight days in October and November 2011 before state ALJ Brian Zlotnick of the Maryland
State Office of Administrative Hearings during which the parents sought to show that defendants
failed to provide S.D. a FAPE and should place and fund him at KTS during the 2011-2012
school year. In his decision of December 21, 2011, ALJ Zlotnick found the IEP proposed by
MCPS was reasonably calculated to offer S.D. a FAPE and that LB was an appropriate
placement for him. (ALJ Decision at 45.) The parents now appeal this decision in district court,
and this court considers cross-motions for summary judgment filed by both parties.
II.

Standard of Review

A summary judgment motion should be granted when the record establishes that there is
no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A material fact is one that may affect the outcome of the suit. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is
“genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “When cross-motions for summary judgment are submitted to a district court, each
motion must be considered individually, and the facts relevant to each must be viewed in the
light most favorable to the non-movant.” Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
A district court reviewing an administrative decision in an IDEA action must make an
“independent decision[ ] based on a preponderance of the evidence.” Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205 (1982) (internal quotations omitted). The
court must also give “due weight” to the ALJ’s determinations, however, and must not

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“substitute [its] own notions of sound educational policy for those of the school authorities which
[it] review[s].” Id. at 206. In an IDEA case, if a district court chooses not to follow regularly
made administrative findings entitled to be considered prima facie correct under Rowley, it must
explain why it does not. Hartmann v. Loudoun Cnty. Bd. of Educ., 118 F.3d 996, 1000-01 (4th
Cir. 1997); Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991).
To determine whether administrative findings are regularly made and entitled to
deference under Rowley’s “due weight” standard, the court should consider the methods the ALJ
employed in making the decision below. Doyle, 953 F.2d at 105. Under this standard, a court
should give deference even to a poorly explained administrative decision as long as the hearing
officer used standard fact-finding methods. J.P. ex rel. Peterson v. Cnty. Sch. Bd. of Hanover
Cnty., 516 F.3d 254, 262 (4th Cir. 2008) (“While it would of course be preferable for hearing
officers to explain their analysis in as much detail as possible, a hearing officer’s failure to meet
this aspirational standard does not provide a basis for concluding that the factual findings
contained in a statutorily compliant written opinion were not regularly made and therefore not
entitled to deference.”).
In an IDEA action the burden of proving that a state hearing officer’s decision was
erroneous rests with the party challenging the decision. Barnett v. Fairfax Cnty. Sch. Bd., 927
F.2d 146, 152 (4th Cir. 1991). In the present case, because S.D.’s parents challenge the
administrative decision below, they bear the burden of proof.
III.

Legal Standard Under the IDEA

In Rowley, the Supreme Court set out a two-part test to determine if a local educational
agency has satisfied its obligation under the IDEA to provide a FAPE to a student with a
disability. Rowley, 458 U.S. at 206-07. The court must determine, first, whether the State

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complied with IDEA procedures, and, second, whether the IEP developed through proper
procedures is “reasonably calculated to enable the child to receive educational benefits.” Id.; see
also In Re Conklin, 946 F.2d 306, 313 (4th Cir. 1991). In this case, S.D.’s parents do not allege
procedural error on the part of MCPS, so the court will not address the first prong of the Rowley
analysis.
The Supreme Court in Rowley determined that a school provides a FAPE when the IEP
provides access to an educational program that confers “some educational benefit” upon the
student with a disability. Rowley, 359 U.S. at 200. In addition to providing this “basic floor of
opportunity,” id. at 201, the IEP must place the child in the least restrictive environment
(“LRE”), meaning that students with and without disabilities should be educated in the same
classroom “to the maximum extent appropriate,” 20 U.S.C. § 1412(a)(5)(A). In some cases,
however, a general education environment may not be an appropriate placement for a child due
to the nature or severity of her disability. 34 C.F.R. § 300.114(a)(2)(ii). In such a case, a FAPE
might require placement of the child in a private school with full funding by the public school
district. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985). The school
district is not required to pay for the student’s tuition at private school, however, if it satisfied its
obligation to provide a FAPE for the student. 34 C.F.R. § 300.148(c). Parents may recover the
cost of private education only if a court finds both the proposed IEP inadequate in its provision
of a FAPE and the private education services obtained by the parent appropriate to meet the
child’s needs. Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (citing Burlington, 471
U.S. at 374).

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IV.

Analysis

After the administrative due process hearing in this case, ALJ Zlotnick found that the
2011 IEP proposed by MCPS was reasonably calculated to provide a FAPE for S.D. The ALJ’s
findings of fact were regularly made, and this court, as required by Rowley’s “due weight”
standard, treats them as prima facie correct when making a decision based on the preponderance
of the evidence.2 This court considers the detailed opinion the ALJ wrote in support of his
December 21, 2011 decision.
In his written decision, the ALJ weighed the testimony of S.D.’s mother and Ms.
Mounce, the expert educational consultant she retained, along with that of the expert witnesses in
special education, nursing, and related therapy services presented by MCPS. The ALJ relied
heavily on the opinions of the MCPS witnesses, who had worked with and observed S.D. both at
home and at LB, and particularly on the testimony of Ms. Bulebush who had provided
occupational therapy to S.D. for four years during both his time at LB and on HHT. (ALJ
Decision at 37, 41-42.) The MCPS experts testified that MCPS “easily managed [S.D.’s] health
issues” while he was at LB and that his “medical issues did not prevent him from accessing the
general education programming” there. (Id. at 34.) Further, the MCPS experts presented
overwhelming evidence that S.D. did make educational progress during his time at LB. (Id. at
35.)
In contrast, the ALJ noted that Ms. Davis, the parents’ sole expert witness, had never
observed S.D. in a classroom setting but only during six to eight hours of visits leading up to

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While the ALJ decision does include potentially irrelevant analysis of the appropriateness of
the placement of S.D. at KTS in comparison with one at LB, that analysis is not necessary to the
ALJ’s other findings and does not affect the deference owed to the regularly made administrative
finding that MCPS did in fact provide a FAPE to S.D.
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October 2010. Further, Ms. Davis did not administer the tests the parents rely on in attempting
to show S.D.’s lack of academic progress. (Id. at 42.)
Additionally, the ALJ found the testimony of S.D.’s mother logically inconsistent
because she claimed the LB setting was unsafe for S.D.’s health but allowed him to travel in
standard public transportation and stay in public accommodations where the health environment
is less controlled than at LB. She also allowed S.D. to interact with his two sisters who attended
LB and could spread germs from the very environment she found unsafe for S.D.
The parents claim that the ALJ erred in discrediting the opinion offered by Dr. Bautista,
the physician who completed the repeated applications for S.D.’s HHT services, because she
failed to testify at the due process hearing. This court finds, however, that the lack of weight
given by the ALJ to Dr. Bautista’s recommendations is sufficiently founded for two reasons.
First, Dr. Bautista was not qualified to make educational programming recommendations such as
a specific educational environment necessary for S.D. (ALJ Decision at 38-39 (citing Marshall
Joint Sch. Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 640-41 (7th Cir. 2010)3 (A
“physician’s diagnosis and input on a child’s medical condition is important and bears on the
team’s informed decision on a student’s needs. But a physician cannot simply prescribe special
education.”) (internal citations omitted)).) Second, Dr. Bautista’s medical recommendation,
drawing a seemingly arbitrary distinction between the safety for S.D. of the 22-student class at
LB and the 15-student class at KTS, is unconvincing. (ALJ Decision at 29.)
The parents’ argument that MCPS is required to have a medical doctor evaluate S.D.’s
medical condition also fails. MCPS fulfilled its obligation under the IDEA to evaluate S.D. by
assembling an IEP team of educational experts including a school nurse, certified to testify as an
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The ALJ acknowledged that the Seventh Circuit’s opinion in Marshall is not binding but
merely persuasive; such qualified consideration is a standard method of analysis and does not
render the finding unworthy of Rowley’s “due weight.”
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expert in nursing, and was not required to include an evaluation by a medical doctor in its
analysis of S.D.’s health condition. See 30 C.F.R. § 300.304(c)(4) (requiring assessment “in all
areas related to the suspected disability, including, if appropriate, health” but not requiring
assessment conducted by physician). The ALJ found testimony from the school nurse who had
reviewed S.D.’s medical records from his physicians persuasive, and this court agrees.
Conclusion
ALJ Zlotnick followed standard methods of legal analysis in finding that MCPS did
provide S.D. a FAPE, so I find no reason not to follow his administrative findings. I agree that
overwhelming evidence shows MCPS did provide a FAPE to S.D. Since I agree with the ALJ
that the 2011 IEP provided S.D. with a FAPE, I will not consider the issue of whether KTS is an
appropriate placement. Having fulfilled the requirements of the IDEA by providing S.D. a
FAPE, MCPS need not reimburse, or prospectively fund, S.D.’s tuition at KTS. Accordingly,
the defendants’ motion for summary judgment is granted, and the plaintiffs’ motion for summary
judgment is denied.

November 30, 2012
Date

/s/
J. Frederick Motz
United States District Judge

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