C. et al v. Starr et al
Filing
22
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/29/2014. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
M.C., ET AL.
:
v.
:
Civil Action No. DKC 13-3617
:
JOSHUA STARR, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this action
arising under the Individuals with Disabilities Education Act
(“IEDA”), 20 U.S.C. §§ 1400 et seq., are the motion for summary
judgment
filed
by
M.C.
and
her
parents,
J.J.C.
and
J.F.C.
(collectively, “Plaintiffs”) (ECF No. 12), and a cross motion
for
summary
Education
and
judgment
its
filed
by
Montgomery
Superintendent
Joshua
County
Starr
Board
of
(collectively,
“Defendants” or Montgomery County Public Schools “MCPS”) (ECF
No. 15). The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary.
For
the
judgment
following
will
be
reasons,
denied,
Plaintiffs’
and
Local Rule 105.6.
motion
Defendants’
cross
for
summary
motion
for
summary judgment will be granted.
I.
The Individuals with Disabilities Education Act
In order to understand the procedural posture of this case,
a short summary of the IDEA is in order.
The 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 also
has regulations governing the provision of FAPEs to children
with disabilities in accordance with the IDEA.
Md. Code Regs.
Tit. 13A, § 05.01.
The FAPE guaranteed by the IDEA must provide a disabled
child with meaningful access to the educational process.
See
Bd. of Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley,
458
U.S.
176,
192
(1982).
The
FAPE
must
be
reasonably
calculated to confer “some educational benefit” on the disabled
child.
Id. at 207.
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 nondisabled peers.
300.550.
provide
The
a
20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §
IDEA
disabled
does
child
not
require
with
the
that
best
a
school
possible
district
education,
Rowley, 458 U.S. at 192, or that the education maximize each
child’s potential, see Hartmann v. Loudoun Cnty. Bd. of Educ.,
118 F.3d 996, 1001 (4th Cir. 1997).
The benefit conferred,
however, must amount to more than trivial progress.
2
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
Cnty. Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)).
To assure delivery of a FAPE, the IDEA requires a school
district
Program
to
provide
(“IEP”)
disabled.
an
for
appropriate
each
child
20 U.S.C. § 1414(d).
Individualized
determined
to
be
Education
learning
The student’s 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
and
evaluations
appropriate, the child himself.
of
current
educational
student’s
education,
which
child,
and,
when
20 U.S.C. § 1414(d)(1)(B); Md.
Code Regs. Tit. 13A, § 05.01.07(A).
student’s
the
The IEP must state the
status,
special
annual
goals
educational
for
the
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
students.
The
in
regular
school
classroom
with
non-disabled
20 U.S.C. § 1414(d)(1)(A).
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 these decisions.”
3
MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523,
527
(4th
Cir.
2002)
(internal
citations
omitted); see also 20 U.S.C. § 1415.
and
quotation
marks
Among those safeguards, a
parent must be provided prior written notice of a decision to
propose or change the educational placement of a student.
Code Regs. Tit. 13A, § 05.01.13(B).
Md.
A parent may also request a
meeting at any time to review and, as appropriate, revise the
student’s IEP.
Md. Code Regs. 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
child, or the provision of a [FAPE] to such child.”
1415(b)(6).
After
such
a
complaint
has
been
of
the
20 U.S.C. §
received,
the
parents are entitled to request a due process hearing conducted
by the state or local educational agency.
In
Maryland,
the
Maryland
Office
conducts the due process hearing.
of
20 U.S.C. § 1415(f).
Administrative
Hearings
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.
Md.
Code Ann., Educ. § 8-413(h).
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 Educ., 471 U.S. 359, 369–70 (1985).
4
To establish entitlement to reimbursement for unilateral private
placement,1
certain
conditions
must
be
met.
Title
20
§
1412(a)(1)(C)(iii), states that:
If the parents of a child with a disability,
who previously received special education
and related services under the authority of
a public agency, enroll the child in a
private
elementary
school
or
secondary
school without the consent of or referral by
the public agency, a court or a hearing
officer may require the agency to reimburse
the parents for the cost of that enrollment
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. (emphasis added).
Under 20 U.S.C. § 1412(a)(10)(C)(iii),
reimbursement may be reduced or denied if the parents fail to
give the public school district notice that they are rejecting
the
district’s
from
proposed
public
school,
unreasonable
action.
or
FAPE
if
placement,
the
Finally,
removing
parents
in
take
order
their
child
some
other
to
receive
reimbursement, the private education services obtained by the
parents must be appropriate to meet the child’s needs.
Sch.
Comm. of Burlington, 471 U.S. at 370.
1
A unilateral private placement occurs when parents enroll
their child in a private school without the consent or a
referral from the public school district.
5
II.
Background
A.
Factual Background2
M.C. is a fifteen-year old girl, who grew up in Maryland
with her parents, J.J.C. and J.F.C.
As early as pre-school, she
began having trouble with paying attention, tics, and behavioral
meltdowns.
M.C.’s tics included blinking her eyes, shrugging
her shoulders and hopping.
In 2005, when M.C. was in first
grade, her parents first took her to see a psychologist due to
her attention problems, and she was diagnosed with attention
deficit hyperactivity disorder (“ADHD”).
Her parents withdrew
M.C. from public school after second grade and enrolled her in
McLean School of Maryland.
Throughout elementary school her symptoms intensified.
2009,
as
M.C.
started
fifth
grade,
anxiety and her behaviors worsened.
she
developed
In
separation
In October 2009, she was
admitted to Johns Hopkins Hospital for several weeks due to her
increasing
disorder,
symptoms.
mood
She
disorder,
was
diagnosed
auditory
coping skills, and Tourette Syndrome.
with
processing
ADHD,
anxiety
disorder,
poor
When M.C. was discharged
in November 2009, she was referred to a day treatment program at
Dominion Hospital in Falls Church, Virginia, which she attended
2
Unless otherwise noted, the facts are undisputed.
6
throughout the remainder of the year.
While at Dominion, M.C.
was treated for mood stability and potential for self-harm.
In
the
fall
of
2010,
condition deteriorated.
M.C.
started
sixth
grade
and
her
She could not function in school and
was having frequent meltdowns, so her parents withdrew her in
November 2010 for medical reasons and she started receiving Home
and
Hospital
Teaching
until
February
2011.
She
was
then
enrolled in a small private school for the remainder of the
2010-2011 school year, but she did not often attend and instead
received tutoring at home.
For seventh grade, the 2011-2012
school year, M.C.’s parents homeschooled her using a computer
based school program and a home school teacher.
In
early
Autoimmune
M.C.
was
diagnosed
Neuropsychiatric
Streptococcus
childhood
2011,
infection
as
Disorders
(“PANDAS”).
obsessive-compulsive
Pediatric
Associated
PANDAS
disorders
having
is
a
[(“OCD”)]
with
“subset
of
and
tic
disorders believed to be caused by the streptococcus infection.”
(ALJ Decision, at 13).
M.C.’s symptoms worsened in spring and
summer 2012, and M.C. was admitted to Rogers Memorial Hospital
(“Rogers”) in Oconomowoc, Wisconsin for treatment to reduce her
tics, manage her medicine, and improve her mood lability.
M.C.
was a patient at Rogers from August 8, 2012 until November 27,
2012.
While
at
Rogers,
M.C.’s
psychiatrist,
Dr.
Stephanie Eken, ordered a psychological evaluation of M.C.,
and
7
treating
psychologist Dr. Denise Reese diagnosed her as having:
“ADHD,
generalized anxiety disorder, Tourette disorder, OCD, separation
anxiety
(by
history),
PANDAs,
and
academic and social environments.”
severe
problems
(Id. at 14).
in
the
Dr. Reese made
several therapeutic recommendations, including that M.C. receive
an IEP, because her severe OCD and PANDAS made it hard for her
to function in a regular school setting.
Dr. Reese believed
that M.C. would do best in a “therapeutically oriented school
where she receives constant individual attention from someone
trained in both therapeutics and educational strategies[,]” but
she
did
not
specifically
residential school.
recommend
(Id. at 15).
that
M.C.
attend
a
Upon discharge, Dr. Eken
recommended that she attend a therapeutic boarding school, such
as the Glenholme School.
Immediately upon M.C.’s discharge from Rogers on November
27, 2012, M.C. and her parents flew to Connecticut to interview
for admission at Devereux Glenholme School (“Glenholme”).
was accepted and began attendance on November 30, 2012.
M.C.
After
M.C.’s admission, she was evaluated by Glenholme’s psychiatrist,
Dr. Frank Ninivaggi, who diagnosed her as having an “anxiety
disorder, Tourette[] Syndrome, OCD, ADHD (by history), PANDAS,
and psychosocial stressors of chronically impaired social skills
and poor academic performance.”
(Id. at 15).
8
B.
The IEP Process
On November 1, 2012, while M.C. was a patient at Rogers,
her
parents
requested
education services.
meeting
to
services.
review
that
MCPS
evaluate
M.C.
for
special
On December 11, 2012, MCPS held an IEP
M.C.’s
application
for
special
education
At this meeting, M.C.’s mother reported that M.C. was
in the process of being discharged from Rogers and that she was
going immediately to Glenholme, a residential school.
The IEP
team ordered educational and psychological evaluations of M.C.
An evaluation was performed from January 17-18, 2013 by Suzanne
Shacoski,
a
school
psychologist
with
MCPS,
who
traveled
to
Glenholme to interview, evaluate, and review M.C.’s educational
file.
She also reviewed previous reports, and evaluations from
M.C.’s
doctors.
a
various
psychologists,
psychiatrists,
and
medical
Ms. Shacoski determined that M.C. met the criteria for
disability
pursuant
to
the
IDEA
as
Other
Health
Impaired
(“OHI”), meaning she has limited strength, or alertness due to
chronic or acute health problems.3
She also suggested that the
IEP team consider whether M.C. has an emotional disability.
3
She
Ms. Shacoski noted specifically that M.C. “shows
significantly limited alertness due to chronic health problems
of ADHD, Tourette Syndrome, Anxiety and OCD that overlay each
other in limiting her attention and ability to sustain on tasks,
learning and social experiences and adversely affects her
educational performance and peer and adult relationships.”
(MCX-45-16).
9
made no recommendation regarding a day school program versus a
residential
program,
but
she
made
several
recommendations
regarding M.C.’s education and treatment.
On February 6, 2013, MCPS held a second IEP team meeting to
review Ms. Shacoski’s report.
The IEP team determined that M.C.
was eligible for special education services as a student with
OHI, but that she did not meet the criteria for an emotional
disability (“ED”).4
IEP
team
On February 25, 2013 and May 7, 2013, the
reconvened.
At
the
February
25
meeting,
the
team
discussed M.C.’s IEP goals and objectives, and determined that
she would require thirty hours of special education per week,
i.e., zero hours in the general education program.
Because
M.C.
was
in
need
of
a
full-time
(MCX-53-29).5
special
education
setting, the IEP team referred her to MCPS’s Central IEP team
(“CIEP team”).
(ECF No. 12-1, at 13).
Meanwhile, the parties
continued to obtain additional reports and evaluations of M.C.
4
Although Ms. Shacoski found that M.C. exhibited four out
of five criteria for an ED under the IDEA, the IEP team found
that she did not have an ED because “she did not exhibit
behaviors directly related to the emotional condition documented
and because the emotional condition was not primarily the result
of physical, sensory, or intellectual disability.”
(ALJ
Decision, at 18).
5
The designation “T.” refers to testimony from the Due
Process hearing; “MCX-(exhibit number)-(page number)” refers to
exhibits offered by Plaintiffs at the Due Process hearing; “BDX”
refers to exhibits offered by Defendants at the Due Process
hearing; and “ALJ Decision”
refers to the ALJ’s November 6,
2013 Decision.
10
On May 7, 2013, the CIEP team met and concluded that M.C.
required small structured classes throughout the day and on-site
mental
health
considered
support,
numerous
among
placements
other
for
services.
M.C.,
including:
The
team
general
education classes at Frost Middle School (“Frost”); ED Cluster
services at Richard Montgomery High School; Bridge Services at
Winston Churchill High School; public day school; residential
schools; and the John L. Gildner Regional Institute for Children
and Adolescents (“RICA”).
The team found that M.C.’s needs
could be met in a therapeutic day school, despite the concerns
of M.C.’s parents’ and insistence that M.C. remain at Glenholme.6
It concluded that RICA was the appropriate placement for her
because it could deliver the MCPS curriculum and mental health
support she required.
6
Although M.C.’s parents disagreed with
The IEP team rejected Glenholme, stating that:
MCPS staff feels that [M.C.’s] special
education and related services needs can be
met
in
a
separate
day
school
with
therapeutic support.
Therefore, she does
not
require
a
residential
school
for
educational purposes.
The team felt that
the RICA program could deliver the MCPS
curriculum, mental health support and the
opportunity for [M.C.] to mainstream back
into a general education setting as she
makes progress. (MCPS #30).
(ALJ Decision, at 18).
11
this
placement,
they
agreed
to
cooperate
with
the
referral
process.
On May 14, 2013, George Moore, the Coordinator of MCPS’s
Placement
and
Assessments
Unit,
wrote
to
M.C.’s
parents,
indicating that RICA must be investigated as a fit for M.C.
He
stated that a pre-admissions interview was scheduled for M.C.,
and that the interview could be conducted by telephone.
He
indicated that M.C. could be placed in the residential program
based on clinical recommendations from the Maryland Department
of Health and Mental Hygiene (“DHMH”), but that initially the
IEP
team
parents
had
and
visited RICA.
recommended
her
the
day
psychotherapist,
program
Dr.
at
RICA.
Kimberly
Ernst,
M.C.’s
then
They thought RICA was an inappropriate placement
for M.C. and rejected it.7
On June 11, 2013, M.C.’s parents received a letter from
MCPS
asking
to
reconvene
an
IEP
7
meeting
to
discuss
other
The parties contest whether M.C.’s parents rejected the
placements or whether the schools rejected M.C. M.C.’s parents
note that when they attended the interview at RICA, they
explained to RICA’s clinical social worker, Joan Gottesman, that
changing M.C.’s placement to RICA would “create a lot of
difficulties for her” and they believed that after sharing these
concerns “an interview was a ‘dead issue[.]’”
(Id. at 14).
M.C.’s parents state that they left believing that “everyone
agreed that RICA was not an appropriate placement for M.C.[,]”
and they received no further requests for an interview.
They
wrote a follow up letter to Mr. Moore on June 3, 2013, sharing
their view that RICA was an inappropriate placement.
In
response to their letter, they received a letter written on June
7, 2013 from RICA rejecting M.C. (Id.).
12
suitable placement options for M.C.; in response, her parents
authorized referrals for M.C. to other placements without the
need for an additional IEP meeting.
Thereafter, on June 26,
2013, MCPS notified Frost that it was considering placing M.C.
there.
M.C.’s parents and Dr. Ernst then visited Frost and
rejected it.8
M.C.’s parents received a copy of her rejection
from Frost on July 18, 2013.
(ECF No. 12-1, at 15).
On July
25, 2013, Mr. Moore followed up with RICA to get additional
information on why M.C. was rejected.
The Director of Clinical
Services at RICA responded on July 29, 2013 that “the decision
to reject her from our program was based on (1) verbal reports
from her parents and therapist about her current presentation of
emotional fragility, difficulty transitioning and unpredictable
triggers, and (2) [o]ur preadmission interviewer Joan Gottesman,
LCSW-C was recommended against having a telephone interview with
M.C., by the parents and therapist, given her fragility and
minimal progress.”
(Id. at 15-16) (citing MCX-82-1).
8
M.C.’s parents note that during their visit to Frost, they
met with its Director, Claire Cohen, who: “did not explore
interviewing
M.C.
and
never
suggested
that
Frost
was
inappropriate because M.C. was not available to interview.”
(ECF No. 12-1, at 15). Instead, they state that Ms. Cohen told
them she was going to write a letter to MCPS “indicating that
Frost was inappropriate for M.C., but that the parents would
reconsider the school in the future if it became appropriate for
her.” (Id.). They indicate that contrary to what she had told
them in person, Ms. Cohen wrote a letter to MCPS stating that
“because she was unable to interview M.C., Frost was not able to
offer her a placement.” (Id.).
13
On
July
30,
2013,
MCPS’s
that
an
counsel
sent
interview
with
a
letter
to
would
be
Plaintiffs,
indicating
M.C.
necessary.
He stated that Frost and RICA had rejected M.C.
because M.C.’s parents had declined to make her available for an
interview.
August
(ECF No. 12-1, at 16).
12,
2013,
mischaracterized
M.C.’s parents responded on
emphasizing
the
events
and
that
MCPS
reiterated
counsel
that
“all
had
experts
involved strongly recommended against the interview process.”
(Id.).
C.
Procedural Background
On June 21, 2013, Plaintiffs filed a due process complaint
with the Maryland Office of Administrative Hearings (the “OAH”),
requesting
a
hearing
to
review
the
services
and
placement
offered to M.C. by MCPS for the 2012-2013 and the 2013-2014
school
years.
“propose
an
M.C.’s
appropriate
parents
alleged
educational
that
program
MCPS
or
failed
placement
to
for
M.C. and [sought] reimbursement for her placement at Glenholme.”
(ECF
No.
12-1,
at
resolution meeting.
16).
The
parties
waived
the
prehearing
The Administrative Law Judge D. Harrison
Pratt (“ALJ”), held a hearing on the following days:
30, October 1-3, and October 7, 2013.
The ALJ framed the issues
presented as follows:
(1) Did
MCPS
offer
[M.C.]
appropriate public education in
14
September
a
the
free
least
restrictive environment for
and 2013-2014 school years?
the
2012-2013
(2) If
not,
was
[M.C.’s]
unilateral
placement
at
the
Glenholme
School
(Glenholme) for the 2012-2013 and the 20132014 school years appropriate?
(ALJ Decision, at 2).
opinion.
On November 6, 2013, the ALJ issued his
He concluded that M.C.’s parents, who had the burden
of proof, failed to show:
1.
That delay by [MCPS] denied [M.C.] a
FAPE.
2.
That MCPS failed to work with the
Parents
in
identifying
a
proper
placement.
3.
That MCPS was obligated to identify
other placements after the Parents
rejected RICA and Frost.
4.
That [M.C.] requires a residential
placement in order to make meaningful
educational progress.
5.
That the MCPS has failed to offer
[M.C.] an education program, including
[a]
placement
that
is
reasonably
calculated to provide her with a FAPE.
(ALJ Decision, at 58-59).
for
reimbursement
Glenholme,
after
for
The ALJ denied Plaintiffs’ request
M.C.’s
finding
unilateral
as
a
matter
private
of
law
placement
that
at
MCPS’s
placement of M.C. at “RICA was reasonably calculated to provide
her with a FAPE for the 2012-2013 and 2013-2014 school years[,]”
and
that
“RICA
Glenholme School.”
is
less
restrictive
(Id. at 59).
15
than
placement
at
the
On December 6, 2013, Plaintiffs filed a complaint in this
court, appealing the ALJ’s November 6, 2013 decision.
1).
Defendants answered on January 7, 2014.
(ECF No.
(ECF No. 6).
On
April 4, 2014, Plaintiffs filed a motion for summary judgment.
(ECF No. 12).
On June 11, 2014, Defendants filed an opposition
and a cross motion for summary judgment.
(ECF No. 15).
Both
motions have been fully briefed.
III. Cross Motions for Summary Judgment
A.
Standard of Review
In MM ex rel. DM, 303 F.3d at 530-31, the United States
Court of Appeals for the Fourth Circuit articulated the standard
of review for motions for summary judgment in IDEA cases:
In a judicial proceeding under the IDEA, a
reviewing court is obliged to conduct a
modified de novo review, giving “due weight”
to
the
underlying
administrative
proceedings.
Board of Educ. v. Rowley, 458
U.S. 176 [] (1982); Doyle v. Arlington
County Sch. Bd., 953 F.2d 100, 103 (4th Cir.
1991)
(“Generally,
in
reviewing
state
administrative decisions in IDEA cases,
courts are required to make an independent
decision based on a preponderance of the
evidence, while giving due weight to state
administrative proceedings.”).
In such a
situation,
findings
of
fact
made
in
administrative proceedings are considered to
be prima facie correct, and if a reviewing
court fails to adhere to them, it is obliged
to explain why.
Doyle, 953 F.2d at 105.
The court is not, however, to “substitute
[its] own notions of sound educational
policy
for
those
of
local
school
authorities.”
Hartmann v. Loudoun County
16
Bd. of Educ., 118 F.3d 996, 999 (4th Cir.
1997).
This
standard
works
in
tandem
with
the
general
standard
of
review for summary judgment, which also applies in IDEA cases,
as illustrated in Bd. of Educ. of Frederick Cnty. v. I.S. ex
rel. Summer, 325 F.Supp.2d 565, 578 (D.Md. 2004):
[T]he Court’s analysis is shaped by the
mandate of Rule 56(c) of the Federal Rules
of Civil Procedure that summary judgment
“shall
be
rendered
forthwith
if
the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.”
“When
the
moving
party
has
met
its
responsibility of identifying the basis for
its motion, the nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.”
White
v. Rockingham Radiologists, Ltd., 820 F.2d
98, 101 (4th Cir. 1987) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324, []
(1986); Fed.R.Civ.P. 56(e)). The Court’s
function is limited to determining whether
sufficient evidence supporting a claimed
factual dispute exists to warrant resolution
of the matter at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, [] (1986).
In that context, a court is obligated to
consider
the
facts
and
all
reasonable
inferences in the light most favorable to
the nonmoving party.
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, [] (1986). Where, as here, crossmotions for summary judgment are filed, a
court must “evaluate each party's motion on
its own merits, taking care . . . to draw
all reasonable inferences against the party
whose
motion
is
under
consideration.”
17
Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1391 (Fed.Cir. 1987).
Plaintiffs face an uphill battle in this case, because just
as
they
were
required
to
carry
the
burden
of
proof
in
the
administrative hearing, so too must they carry the burden of
proof here.
(2005);
1999).
See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49
Cavanagh
v.
Grasmick,
75
F.Supp.2d
446,
457
(D.Md.
Moreover, “[i]f the administrative findings were made in
a regular manner and have evidentiary support, they are to be
considered prima facie correct.”
Cavanagh, 75 F.Supp.2d at 457
(citing Doyle, 953 F.2d at 103).
Plaintiffs make a blanket argument at the outset of their
brief that the ALJ’s findings were not regularly made and thus,
are
not
entitled
to
deference.
(ECF
No.
12-1,
at
20-21).
According to Plaintiffs, the ALJ repeatedly ignored the evidence
or testimony presented by Plaintiffs, and blindly deferred to
the evidence and testimony from Defendants.
As discussed below,
the ALJ’s opinion demonstrates that he reviewed all the evidence
presented at the due process hearing, but found some evidence
and testimony more credible than other evidence.
Therefore, the
ALJ’s factual findings appear to have been regularly made on
each issue raised by the parties and thus, will be given due
deference.
18
B.
1.
a.
Analysis
Procedural Challenges
MCPS Proposed a FAPE for M.C.
Plaintiffs first argue that MCPS’s referral of M.C. to RICA
did not fulfill its statutory mandate to provide her a FAPE,
because RICA was not ready and willing to accept M.C. as a
student.
According to Plaintiffs, “[a] school system cannot
merely make referrals to satisfy its statutory responsibility to
provide a placement[;] . . . [r]ather, a school system must make
an actual offer of services at a particular location that can
meet the individual needs of the child.”
(ECF No. 12-1, at 22).
Plaintiffs allege that MCPS made referrals to two schools — RICA
and Frost — but because both schools rejected M.C., MCPS never
fulfilled its statutory responsibility to provide her a FAPE.
In
response,
Defendants
assert
placements at both RICA and Frost.
ALJ
correctly
finding
that
rejected
M.C.’s
the
that
offered
M.C.
Defendants argue that the
parents’
parents
MCPS
argument
“intentionally
on
this
embarked
issue,
on
a
concerted plan designed to frustrate the process that would have
led
to
M.C.’s
acceptance
to
either
proposed
refusing to make her available for an interview.”
1, at 16).
placement
by
(ECF No. 15-
Defendants argue that Plaintiffs’ reliance on the
Fourth Circuit’s decision in A.K. v. Alexandria City Sch. Bd.,
484 F.3d 672 (4th Cir. 2007), is misplaced, because in that case
19
the school system never specifically identified a placement for
the
student,
whereas
here,
MCPS
identified
two
appropriate
placements for M.C. “neither of which could be consummated due
to
the
Parents’
interview[.]”
The
ALJ
refusal
to
make
M.C.
available
for
an
(ECF No. 15-1, at 18).
rejected
the
parents’
argument
that
MCPS
never
offered M.C. a placement and the record supports his finding.
(ALJ Decision, at 23-24).
The IEP team, which included M.C.’s
parents, met on February 25, 2013 and May 7, 2013 to work on
M.C.’s initial IEP.
The IEP meeting documentation shows that
the
several
team
considered
placements
for
M.C.,
including
Glenholme, but ultimately decided that M.C.’s needs could best
be
met
through
supports.”
a
“separate
(BDX-30-37).
day
school
with
therapeutic
M.C.’s parents were made aware at the
May 7, 2013 meeting that the team had proposed RICA as her
placement.
In
addition,
M.C.’s
parents
received
written
verification of the proposed placement at RICA in Mr. Moore’s
May 14, 2013 letter to them.
Although M.C.’s parents did not
agree with the IEP team’s assessment that RICA and Frost were
appropriate placements for M.C., MCPS certainly fulfilled its
procedural duty to propose specific placements for M.C.
Contrary to M.C.’s parents’ assertions, this case is unlike
A.K.,
484
F.3d
at
681,
because
M.C.’s
IEP
identified
a
particular school placement, RICA, and M.C.’s parents were not
20
“left
to
fend
for
themselves”
to
find
a
placement
for
her.
Indeed, M.C.’s situation is more similar to the student in Bobby
v. Sch. Bd. of City of Norfolk, No. 2:13CV714, 2014 WL 3101927,
at *4, 13-14 (E.D.Va. July 7, 2014), whose parents refused to
permit a second observation of their child which prevented the
school
district
from
being
able
classroom assignment for her.
district’s
alleged
failure
to
determine
a
specific
The court in Bobby addressed the
to
identify
a
specific
classroom,
noting that “if [this procedural defect] exists at all — [it]
arose exclusively from the parents’ refusal to permit a second
observation or otherwise cooperate in the development of [the
student’s] IEP.
They have produced no evidence that a classroom
in the [district] could not meet their daughter’s needs — only
evidence that they preferred her needs be met elsewhere.”
at *13-14.
Id.
Similarly, MCPS proposed specific placements for
M.C. — RICA then Frost — that the team believed would meet her
needs, but no specific school was ever selected due to M.C.’s
parents’ refusal to make her available for an interview.
Thus,
these
could
schools
were
implement her IEP.
not
due
to
any
never
able
to
verify
that
they
If there was any procedural defect, it was
shortfalls
by
MCPS,
but
to
failure to cooperate with the placement process.
21
M.C.’s
parents’
b.
M.C.’s Parents Frustrated the IEP Placement Process
and Did Not Act in Good Faith
Plaintiffs next argue that the ALJ erred in finding that
M.C.’s parents frustrated the IEP placement process by refusing
to allow M.C. to be interviewed and that the parents acted in
bad faith throughout the IEP process.
i.
M.C. was Capable of Interviewing and Her Parents
Frustrated MCPS’s Placement Process by Refusing to
Allow her to Interview
First, Plaintiffs assert that the ALJ incorrectly concluded
that
they
refused
to
allow
M.C.
to
be
interviewed.
M.C.’s
parents insist that they expressed their concerns about M.C.’s
ability to handle an interview, but did not outright refuse an
interview.
(ECF No. 12-1, at 27).
argue
neither
that
MCPS
nor
the
In addition, Plaintiffs
proposed
placement
schools
informed them that an interview was a prerequisite to admission,
or
questioned
their
assertions
about
M.C.’s
ability
to
participate in an interview until the end of July 2013, after
the parents had already filed a due process complaint.
(ECF No.
18, at 8).
Defendants argue that even though Plaintiffs have offered a
differing interpretation of the evidence regarding the interview
and placement process, they have provided no reason to reject
the ALJ’s finding that M.C. was capable of being interviewed and
that her parents’ actions and letters amounted to a refusal to
22
allow M.C. to interview.
(ECF No. 15-1, at 20-21).
Defendants
contend that the ALJ correctly rejected the parents’ argument
that they did not believe an interview was necessary for M.C. to
receive a placement or that MCPS had waived the requirement.
The
parents’
attorney,
Michael
Eig,
acknowledged
that
both
parties knew that an interview was part of the IEP placement
process and Mr. Eig never obtained a written waiver from MCPS
releasing M.C. from the interview requirement.
Defendants add
that if the parents were truly acting in good faith to obtain a
FAPE
for
M.C.
for
the
2013-2014
school
year,
then
after
receiving MCPS’s July 30, 2013 letter which indicated that an
interview was required, they could have made M.C. available at
that point for an interview, but there is no evidence that they
made any attempt to do so.
The
ALJ’s
factual
(ECF No. 15-1, at 25-26).
findings
regarding
M.C.’s
ability
to
interview and her parents’ refusal to permit her to interview
are supported by the evidence.
The ALJ found that “[a]lthough
the Parents may not have specifically said that they would not
allow
[M.C]
to
correspondence
be
from
interviewed,
their
amounted to a refusal.”
their
attorney
and
actions,
Dr.
coupled
Ernst
(ALJ Decision, at 28).
with
certainly
He also noted
that “I believe that the Parents were acting in bad faith with
regard to [M.C.’s] interview and this stymied efforts by the
MCPS [to finalize a school placement for M.C.].”
23
(Id. at 27).
Plaintiffs have not pointed to evidence in the record which
demonstrates their willingness to allow M.C. to be interviewed.
In fact, all communications from M.C.’s parents, their attorney,
and their experts that were sent to MCPS, RICA, and Frost staff,
indicate
that
they
had
significant
concerns
about
M.C.’s
capacity to handle an interview, even a telephonic interview.
Moreover, the timing of these communications, which were usually
sent in response to a request from MCPS for an interview or
after M.C. failed to attend a school interview with her parents,
and the phrasing of these communications, make clear that M.C.’s
parents did not consent to her being interviewed.
Decision, at 28-29).
(See ALJ
Accordingly, the parents’ communications
and conduct amounted to a refusal to allow her to interview.
Plaintiffs also argue that RICA and Frost did not initially
inform them that each was rejecting M.C. due to the lack of an
interview, and that they were not officially informed of this
until
late
contend
July
that
2013.
RICA
and
(ECF
MCPS
No.
12-1,
personnel
at
never
25).
Plaintiffs
questioned
their
assertions that M.C. was too fragile to interview, thus, they
were led to believe that the interview was a “dead issue.”
They
imply that had they known that an interview was required by MCPS
to get a FAPE placement, they would have made M.C. available for
interviews.
24
Plaintiffs’ arguments are unsupported by the record.
The
ALJ acknowledged in his decision that “MCPS was not as clear as
it
might
have
ultimately
been
decided
concerning
that
[M.C.’s]
M.C.’s
parents
interview[,]”
were
he
that
aware
but
an
interview was part of the IEP placement process and was not
voluntary.
(ALJ Decision, at 27-29).
record, the court agrees.
Upon a review of the
M.C.’s mother admitted at the due
process hearing that she received a letter from RICA regarding
the interview process, advising both parents and M.C. to attend
the RICA interview.
(T. 399-400).
Moreover, Mr. Moore’s May
14, 2013 letter to M.C.’s parents expressly states:
“[a]s you
are aware, a pre-admissions clinical interview is scheduled for
[M.C.]
at
JLG-RICA
on
Thursday,
May
23,
2013.
It
is
my
understanding that the JLG-RICA staff will interview [M.C.] by
telephone.”
uncertain
(MCX-60).
of
definitively
Furthermore, if the parents were still
MCPS’s
policy
on
student
clarified
in
MCPS’s
July
interviews,
30,
2013
letter
Plaintiffs’ attorney, Michael Eig, which stated:
Because your clients have maintained that
under no circumstances would they make
[M.C.]
available
for
an
interview
in
connection with the admissions process at
either [RICA or Frost], they have both
declined to offer [M.C.] a placement. . . .
MCPS is prepared to consider any reasonable
limitations to the scope and process of the
interviews to be conducted by RICA and Frost
staff.
However, until presented with data
25
it
was
to
to the contrary, [MCPS] rejects the position
that [M.C.’s] condition has degenerated to
such a degree during the ensuing six months
she has spent at Glenholme since her
interview with Ms. Shacoski as to render her
unconditionally incapable of participating
in the interview process with RICA and
Frost. . . .
I await your prompt response.
(MCX-83).
Based
on
these
facts
alone,
it
is
apparent
that
M.C.’s parents were aware at the time of their visits to RICA
and Frost that M.C. was expected to interview at these proposed
placements, but they refused to give permission for her to do
so.
M.C.’s
parents’
assertion
that
they
would
have
given
permission if they knew the interview was required is undermined
by the fact that when they received a letter from MCPS on July
30, 2013 expressly stating that an interview was required, they
failed to respond or make M.C. available at that time.
MCPS did
not need to continue suggesting new placements or reaching out
to Plaintiffs for interviews with M.C. when they had already
requested, on several occasions, that M.C. interview and her
parents
had
refused
to
rebuffed
allow
M.C.
those
to
requests.
interview
Because
throughout
the
the
parents
placement
process, once they received the letter from MCPS indicating M.C.
must be available for an interview if she wanted a placement,
the onus was on M.C.’s parents to respond and cooperate with the
interview process.
26
The ALJ further found that “[M.C.] was capable of being
interviewed
at
both
RICA
and
Frost,
but
also
that
such
an
interview could have been conducted with minimal if any negative
impact.”
(ALJ Decision, at 33).
finding,
stating
that
the
ALJ
Plaintiffs challenge this
ignored
the
testimony
of
Dr.
Ernst, M.C.’s psychotherapist, and Ms. Satalino, a social worker
at
Glenholme,
indicating
that
an
interview
would
disruptive to M.C. and caused her angst and concern.
12-1, at 29).
have
been
(ECF No.
The ALJ credited the testimony of Ms. Schultze,
principal at RICA, over that of Plaintiffs’ witnesses on this
issue, and his credibility determination is due deference.
As noted in S.A. v. Weast, 898 F.Supp.2d 869, 874 (D.Md.
2012),
in
deference
reviewing
to
the
IDEA
ALJ’s
cases,
the
determinations
district
of
the
court
“owes
credibility
of
witnesses[,] and . . . owes generous deference to educators.”
Additionally,
ALJ’s
credibility
“regularly made” are due deference.
determinations
which
are
See J.P. v. Cnty. Sch. Bd.
of Hanover Cnty., Va., 516 F.3d 254, 259-60 (4th Cir. 2008))
(“When
determining
whether
a
hearing
officer’s
findings
were
regularly made, our cases have typically focused on the process
through which the findings were made: Factual findings are not
regularly made if they are reached through a process that is far
from the accepted norm of a fact-finding process.” (internal
quotation and citation marks omitted)); see also Doyle, 953 F.2d
27
at 104 (“[W]e have held that ‘[w]e may not reverse a trier of
fact, who had the advantage of hearing the testimony, on the
question of credibility’” (quoting McCrary v. Runyon, 515 F.2d
1082,
1086
(4th
determination
Cir.
about
1975)).
witness
Furthermore,
credibility,
the
when
making
“IDEA
a
hearing
officer is not required to offer a detailed explanation of his
or her credibility assessments.”
Id. at 877 (citing J.P., 516
F.3d at 259).
Here, the ALJ did not ignore the testimony of Plaintiffs’
witnesses
on
M.C.’s
capability
to
interview,
he
simply
determined that Ms. Schultze’s testimony was more credible, a
determination
that
is
due
deference.
Moreover,
the
ALJ’s
finding is adequately supported by other evidence in the record.
For example, M.C. had been interviewed and clinically evaluated
on numerous occasions leading up to MCPS’s interview requests in
the summer of 2013.
M.C. had just interviewed at Glenholme and
been evaluated by Dr. Ninivaggi in November and December of
2012, and was clinically evaluated by Ms. Shacoski in January
2013.
that
M.C.’s mother also testified at the due process hearing
she
thought
M.C.
was
capable
of
getting
through
an
interview at RICA, but that it “would have increased her anxiety
and stress level thereafter[.]”
(T. 400-01).
The ALJ noted
that the reports of those interviewing and evaluating M.C. did
not mention that her participation in these interviews had any
28
significant impact on her, and her mother even testified at the
hearing that M.C. suffered no ill effects due to the interviews.
(ALJ Decision, at 34).
Furthermore, MCPS offered accommodations
to M.C. in order to make the interview process as comfortable as
possible, which further supports that it was possible for M.C.
to participate in some type of interview without causing it
unduly to impact her emotional state or cause her to regress.
(ALJ Decision, at 31; MCX-83; MCX-60).
Accordingly, the ALJ’s
findings that M.C. was capable of being interviewed and that
M.C.’s parents frustrated the IEP placement process by refusing
to allow an interview are supported by the record.
ii. M.C.’s Parents Acted in Bad Faith During the
Process
by
Refusing
Genuinely
to
Consider
Placement Except Glenholme
IEP
Any
Plaintiffs contend that the ALJ erred because the record
reveals that they participated in the IEP process and cooperated
with MCPS in good faith by attending meetings and school visits
and assisting MCPS in gathering information about M.C.
12-1, at 30).
private
school
(ECF No.
Plaintiffs also argue that enrolling M.C. in a
while
evidence of bad faith.
the
IEP
process
was
underway
is
not
Plaintiffs allegedly were required to
enroll M.C. in a residential program in order for her to be
29
released from Rogers, and thus, could not wait for MCPS to offer
M.C. a FAPE before moving her to Glenholme.9
(ECF No. 18, at 4).
Defendants respond that the ALJ correctly found that M.C.’s
parents acted in bad faith throughout the IEP process by having
a preconceived belief that a residential school was the only
appropriate placement for M.C. and that Glenholme was the only
such school that would meet M.C.’s needs.
27).
(ECF No. 15-1, at 25-
Defendants argue that M.C.’s parents did not act in good
faith because they enrolled her in a private school before the
IEP process even began and then failed truly to consider any
public school placement offerings made by MCPS.
In addition,
Defendants argue that the parents’ argument that they were fully
cooperative
during
the
IEP
process
is
belied
by
the
ALJ’s
finding that they frustrated the IEP process by refusing to make
M.C. available for interviews, as discussed above.
The
ALJ
found
that
M.C.’s
parents
did
not
genuinely
consider the placements offered by MCPS:
I believe the decision to reject RICA and
Frost was preconceived.
For one thing, the
Parents were obligated to pay the costs and
fees at Glenholme regardless of whether
[M.C.] attended any MCPS school or any other
school [because they had already enrolled
9
In support of this argument, Plaintiffs cite Kitchelt v.
Weast, 341 F.Supp.2d 553, 557 n.1 (D.Md. 2004), for the
proposition that just because parents believe that the best
education the public school system can provide is not a FAPE, it
does not mean they have acted in bad faith as long as they
engage in the IEP process in good faith.
30
her for the year]. . . .
At the time of
enrollment at Glenholme, the Parents were
already considering the possibility of MCPS
paying for the Glenholme placement.
The
parents
clearly
believed
that
only
a
residential
therapeutic
school
was
appropriate for [M.C.], and that Glenholme
was the only such school that would do, so
much so that they committed themselves to
costs and fees exceeding $119,000.00 a year.
Although
I
disagree
with
the
Parents
concerning
the
need
for
a
residential
therapeutic school, I certainly do not
impugn their beliefs as to the benefit of
such a placement. I do impugn the sincerity
of their consideration of placement at RICA
or Frost or any other school other than
Glenholme.
(ALJ Decision, at 36-37) (emphasis in original).
The ALJ’s decision is supported by the record.
As noted by
the ALJ, the parents’ conduct during the IEP placement process
can be distinguished from the parents in Kitchelt, because even
though the parents in Kitchelt had a private placement in mind
from the start of the IEP process, they considered public school
placements in good faith and did not enroll the student in the
private
placement
until
the
district
failed
placement by the start of the school year.
to
make
an
IEP
By contrast, M.C.
began classes at Glenholme on November 30, 2012, before the
first IEP meeting even took place on December 11, 2012.
At the
very first IEP team meeting, M.C.’s mother stated that Glenholme
“is the only school that could meet [M.C.’s] needs . . . [M.C.]
cannot be accommodated within the MCPS system.”
31
(BDX-12-2).
When the CIEP team made a formal referral for M.C. to RICA at
the May 7, 2013 meeting, M.C.’s parents noted their disagreement
with the referral before they had even visited to see what RICA
had to offer.
(BDX-30-37).
When M.C.’s parents visited RICA,
they failed to bring M.C. with them or permit her to interview
telephonically so RICA personnel could determine if they could
implement her IEP.
They informed RICA personnel, based on their
own conclusions, that RICA would not be an appropriate placement
for M.C.
Similarly, when M.C.’s parents visited Frost, they
failed
bring
to
interview.
M.C.
with
them
or
make
available
to
They also informed the Frost director from the start
that Frost was inappropriate for M.C.
decision
her
regarding
the
parents’
bad
Accordingly, the ALJ’s
faith
will
be
affirmed
because the parents’ conduct demonstrates that they had made up
their minds about M.C.’s proposed placements before they even
visited,
and
were
determined
that
Glenholme
was
the
only
placement suitable for M.C.
c.
MCPS Was Not at Fault for Delaying the IEP
Placement Process or Provision of M.C.’s FAPE
Plaintiffs
argue
that
the
delays in the IEP process.
ALJ
erred
by
ignoring
MCPS’s
Plaintiffs contend that the ALJ
excused MCPS’s delays by erroneously finding that the parents
were
at
fault
assessments.
for
repeatedly
refusing
(ECF No. 12-1, at 33).
32
to
produce
M.C.
for
M.C.’s parents state that
they fully cooperated with the assessment process by permitting
M.C. to be evaluated at Glenholme.
Plaintiffs argue that the
ALJ’s finding that significant delays were due to the necessity
of
obtaining
Connecticut,
documents
would
excuse
about
M.C.
delays
only
from
as
to
Wisconsin
M.C.’s
and
initial
eligibility determination for special education services, not
for
MCPS’s
placement.
delay
in
creating
her
IEP
and
offering
her
a
According to Plaintiffs, MCPS greatly exceeded the
ninety-day timeframe for producing a placement for M.C., a delay
which resulted in denying a placement for M.C. for the 2012-2013
and 2013-2014 school years.
(ECF No. 12-1, at 32-33).
Defendants respond that the ALJ correctly found that MCPS
did not violate the ninety-day timeframe for providing M.C. a
final placement, because an exception to this rule permits MCPS
additional time if the parents or student “repeatedly fails or
refuses to produce the student for assessments.”
(ECF No. 15-1,
at 30) (citing ALJ Decision at 26) (internal quotation marks
omitted).
Defendants argue that the ALJ correctly concluded
that any delays were due to the parents’ “bad faith pursuit of
the IEP process, and M.C. suffered no educational deprivation as
a result thereof.”
(Id.).
First, it should be noted that both parties and the ALJ
confused the timeframes that MCPS had for completing the IEP
33
process.10
MCPS
had
referral
from
her
received
parental
initial
evaluation
ninety
parents,
consent
of
days
and
for
M.C.
from
sixty
an
and
receiving
days
from
assessment,
determine
a
the
it
perform
to
date
an
whether
eligible for special education and related services.
§
300.301(c);
Md.
Code
Regs.
§
written
she
was
34 C.F.R.
13A.05.01.06(A).
MCPS
substantially complied with its statutory and regulatory duty to
perform an initial assessment of M.C. within ninety days of
receiving the written referral from her parents.
eligibility
determination
for
M.C.
regarding
MCPS made an
whether
she
was
eligible for special education and related services on February
6,
2013,
which
was
within
sixty
days
of
obtaining
M.C.’s
parents’ permission at the December 11, 2012 IEP meeting to
perform assessments of M.C.
10
The ALJ found that any delay by MCPS in issuing a final
placement for M.C. was permissible because the delay was the
fault of M.C.’s parents by failing to make her available for
interviews.
(ALJ
Decision,
at
26-27)
(citing
COMAR
13A.05.01.06(A)(2)). The ALJ based this finding, in part, on a
regulation that provides school districts a ninety-day timeframe
to perform an initial assessment of a student, and an exception
to this timeframe if the parents repeatedly refuse to make the
student available for this assessment.
The rule and exception
cited by the ALJ, however, only appear to apply to the initial
evaluation and eligibility determination of the student, not the
final IEP placement.
Because MCPS performed its initial
evaluation and eligibility determination for M.C. within the
ninety-day timeframe and M.C.’s parents did not refuse to permit
M.C. to be assessed by Ms. Shacoski during this initial step,
there was no delay by either party at this stage of the IEP
process.
34
Once the IEP team determined that M.C. was eligible for an
IEP based on her initial evaluation, it was required to meet
within thirty days to develop an IEP for M.C.
13A.05.01.08(A)
(noting
that
the
“public
Md. Code Regs §
agency
shall
ensure
that an IEP team meets to develop an IEP for a student with a
disability within 30 days of the evaluation”).
Regulation
governing
the
timing
of
an
initial
The Federal
IEP
similarly
states that, public agencies must ensure that:
(1) A meeting to develop an IEP for a child
is
conducted
within
30
days
of
a
determination that the child needs special
education and related services; and
(2) As
soon
as
possible
following
development of the IEP, special education
and related services are made available to
the child in accordance with the child’s
IEP.
34 C.F.R. § 300.323(c).
34 C.F.R. § 300.323, titled “When IEPs
must be in effect,” also provides the general rule that “[a]t
the beginning of each school year, each public agency must have
in
effect,
for
each
child
with
a
disability
within
its
jurisdiction, an IEP[.]”
In this case, M.C.’s parents did not request that M.C. be
evaluated
until
midway
through
the
specifically on November 1, 2012.
2012-2013
school
year,
Following the IEP team’s
decision on February 6, 2013 that M.C. was in fact eligible for
special education services, the IEP team convened on February
35
25, well within the thirty-day timeframe.
At this meeting, the
IEP team determined that M.C. needed thirty hours of special
education services, meaning zero hours in the general education
program, and for this reason needed to refer M.C. to MCPS’s CIEP
team to consider the best placement options.
After additional
reports and evaluations were received concerning M.C., the CIEP
team met on May 7, 2013 to finish M.C.’s IEP and determine a
school placement.
Accordingly, although MCPS did not complete
M.C.’s IEP within thirty days of her being found eligible for
special
education
services,
the
regulations
do
not
expressly
require that an initial IEP be fully developed within thirty
days, just that the IEP team convene within thirty days, which
it did.11
The regulations governing initial IEP development also
provide that “[a]s soon as possible following the development of
11
Plaintiffs cite several cases for the proposition that
procedural violations can be sufficient to deny a child a FAPE.
(See ECF No. 12-1, at 32) (citing Tice, 908 F.2d at 1209);
Gerstmyer v. Howard Cnty. Public Sch., 850 F.Supp. 361 (D.Md.
1994)).
The cases cited, however, involve instances where the
parents gave the school district plenty of notice (i.e.,
contacted the school in May regarding an IEP/placement for the
following September) that they wanted their child evaluated for
the following school year, yet the school districts failed to
perform their obligations within the required timeframes
resulting in the student not having a FAPE in place at the start
of the next school year.
These cases demonstrate the general
rule that a FAPE must be in place “[a]t the beginning of each
school year[.]”
20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. §
300.323(a)-(c).
MCPS fulfilled its obligation to offer M.C. a
FAPE placement as soon as possible after her IEP had been
developed, or at the latest by the beginning of the 2013-2014
school year. Id.
36
the IEP, special education and related services are to be made
available[.]”
34 C.F.R. § 300.323(c).
By providing a proposed
placement for M.C. on May 7, 2013, after receiving additional
reports to clarify M.C.’s needs, MCPS timely provided a proposed
FAPE placement as required during the 2012-2013 school year.
In
addition, if M.C.’s parents had fully cooperated in good faith
during
the
IEP
placement
process
in
the
summer
of
2013
as
discussed above, then MCPS could have timely provided a FAPE for
M.C. by the time the 2013-2014 school year began.
Accordingly,
Plaintiffs
have
not
met
their
burden
of
showing that any of the procedural issues they raised denied
M.C. the provision of a FAPE during her 2012-2013 or 2013-2014
school years.12
12
Plaintiffs have also argued that the ALJ ignored the fact
that MCPS did not provide them the appropriate prior written
notice, which is required by the IDEA, of the IEP team’s
referrals for M.C. to RICA and Frost, nor of her subsequent
rejections from those schools.
(ECF No. 12-1, at 34).
Plaintiffs cite A.K., 484 F.3d 672, for the proposition that a
school
district
has
provided
insufficient
notice
of
an
educational placement if it fails to identify a specific
placement.
As noted in A.K., 484 F.3d at 684, “something more than a
simple procedural violation [of the IDEA] must exist in order
for an aggrieved student to prevail” on a claim that he has not
been provided a FAPE.
Thus, unless the procedural violation
interferes with the provision of the FAPE, for instance, by
causing the student to lose an “educational benefit or
opportunity[,]” then it is harmless error. Id. By Plaintiffs’
own admission, they received notice at the May 7 IEP meeting,
and in Mr. Moore’s May 14, 2013 letter that the IEP team was
proposing RICA as M.C.’s placement, and because of this notice
37
2.
In
Substantive Challenges
challenging
Plaintiffs
raise
whether
two
M.C.
was
substantive
deprived
arguments:
of
(1)
a
FAPE,
that
she
required a residential placement in order to make educational
progress; and (2) that RICA could not provide her a FAPE because
it required her to make transitions during the school day.
In determining whether a FAPE has been provided, the issue
is not whether the placement advocated by the parents is better,
or
more
appropriate,
appropriate
but
placement
educational benefits.
whether
capable
the
of
school
providing
has
offered
the
an
student
A.B. ex rel. D.B. v. Lawson, 354 F.3d
315, 324 (4th Cir. 2004).
In Fairfax Cnty. Sch. Bd. v. Knight,
261 Fed.App’x 606, 607-08 (4th Cir. 2008), the Fourth Circuit
clarified that:
This
Court
has
determined
that
the
appropriate education required by the IDEA
should not be confused with the best
possible education . . . . And once a FAPE
is offered, the school district need not
offer additional educational services. That
is, while a state must provide specialized
instruction and related services sufficient
they attended a tour and interviewed at RICA. (ECF No. 12-1, at
13-14). Accordingly, even if there was a defect in the notice,
it was adequate to identify for M.C.’s parents with “a
reasonable degree of certainty” which placement MCPS had
proposed such that it did not interfere with the provision of
M.C.’s FAPE.
See A.K., 484 F.3d at 684-85 (noting that even
though the school district’s notice was flawed “A.K.’s parents
knew with a reasonable degree of certainty where [the school
district] proposed to educate their child” and thus, did not
deprive A.K. of an educational opportunity or deny A.K. a FAPE).
38
to confer some educational benefit upon the
handicapped child, the Act does not require
the furnishing of every special service
necessary
to
maximize
each
handicapped
child’s potential.
Id.
(quoting
MM
ex
rel.
DM,
303
F.3d
at
526–27)
(internal
quotation marks, citations, and alterations omitted).
a.
M.C. Does Not Require a Residential Placement in Order
to Make Educational Progress
Plaintiffs contend that the ALJ erred in finding that M.C.
did not require a residential placement.
Plaintiffs first argue
that the ALJ ignored relevant “testimony, expert reports, and
opinions of those witnesses familiar with M.C. who all agreed
that she needed a residential placement[;]” and instead, blindly
deferred to MCPS’s witnesses and their testimony.
1, at 36).
(ECF No. 12-
According to Plaintiffs, it is clear from the record
that “M.C.’s PANDAS affects every aspect of her life, causing
her to be unable to function in numerous environments, including
both
public
and
private,
schools for many years.”
and
general
and
special
(ECF No. 12-1, at 45-46).
education
They assert
that because M.C.’s disability causes her symptoms that impact
her ability to access her education, MCPS is required to provide
her a residential placement.
(Id. at 44-46).
Defendants respond that Plaintiffs have provided no support
for their argument that M.C. required a residential setting in
order to benefit from her education.
39
Defendants point to M.C.’s
prior academic achievement record in non-residential settings
(past
grades
and
test
scores),
stating
that
“[t]here
is
no
support in the administrative record for the contention that
academics were ever an issue for M.C.”
& 32 n.11).
(ECF No. 15-1, at 31-32
Defendants cite a number of cases, including Shaw
v. Weast, 364 F.App’x 47 (4th Cir. 2010), for the proposition
that
a
state
is
required
to
fund
a
student’s
residential
placement only when residential care is essential in order for
the child to make educational progress.
Defendants argue that
M.C.’s educational needs are not dependent on her receiving the
services of a residential program, such as learning to feed and
dress herself or utilize the toilet.
In addition, Defendants
argue that it is evident from the ALJ’s opinion that he did not
ignore the parents’ witnesses, as he devoted a major section to
analyzing the testimony from both parties’ witnesses; rather, he
concluded that MCPS’s witnesses were more persuasive.
Plaintiffs’ argument that the ALJ ignored their witnesses’
testimony
and
blindly
deferred
to
Defendants’
witnesses
regarding M.C.’s need for a residential therapeutic school, is
unsupported by the record.
After reviewing the ALJ’s decision,
it is clear that he evaluated the testimony of every witness who
testified about this issue, as he devoted eighteen pages of his
opinion to providing a synopsis of their testimony, specifically
40
stating their beliefs about whether M.C. needed a residential
setting.
(ALJ Decision, at 39-56).
He concluded that:
[A]s to the issue of the need of a
residential
placement,
I
have
given
significantly more weight to the opinions of
Ms. Shacoski and Ms. Schultze than those of
Dr. Reese, Dr. Eken, Mr. Schumacher, and Dr.
Ernst.
Contrary to counsel’s claim that this case
does not involve a “battle of educational
experts[,]” in large measure such a contest
does exist and I am much more persuaded by
those providing evidence on behalf of the
MCPS than those providing evidence on behalf
of the Parents.
(ALJ Decision, at 56).
Plaintiffs’
arguments
challenging
the
ALJ’s
credibility
determinations concerning these witnesses will also be rejected.
Plaintiffs
have
not
presented
any
evidence
that
the
ALJ’s
credibility determinations were anything other than regularly
made — he took testimony from the witnesses; reviewed their
credentials,
determined
persuasive.
more
reports,
based
on
and
these
other
evidence
factors
presented;
and
then
testimony
was
most
which
Thus, the ALJ’s decision that MCPS’s witnesses were
credible
on
the
issue
of
whether
M.C.
required
a
residential placement will be given deference.
After reviewing the record, it is also evident that the
ALJ’s
decision
that
M.C.
does
not
require
a
residential
placement in order to make meaningful educational progress is
41
supported by the record.
In Shaw, 364 F.App’x 47, 53 (4th Cir.
2010), the Fourth Circuit described the circumstances in which
the state is required to fund residential placements:
“If the educational benefits which can be
provided
through
residential
care
are
essential
for
the
child
to
make
any
educational
progress
at
all,
then
residential care is required under the EHA
[the precursor to the IDEA].”
Burke County
Bd. of Educ. v. Denton, 895 F.2d 973, 980
(4th Cir. 1990) (emphasis in original).
However,
the
IDEA
“does
not
authorize
residential
care
merely
to
enhance
an
otherwise
sufficient
day
program.”
Id.
(quoting Abrahamson v. Hershman, 701 F.2d
223, 227 (1st Cir. 1983) (emphasis in
original)).
“If residential placement is
necessitated
by
medical,
social,
or
emotional problems that are segregable from
the
learning
process,
then
the
local
education
agency
need
not
fund
the
residential placement.”
Id. at 980. See
also Clovis Unified Sch. Dist. v. California
Office of Admin. Hearings, 903 F.2d 635 (9th
Cir.
1990)
(finding
student’s
hospitalization was primarily for medical
and psychiatric reasons and the state was
therefore not required to fund it).
In
Shaw,
bipolar
364
F.App’x
disorder,
at
53,
clinical
the
student
depression,
disorder, and had suicidal tendencies.
in
a
residential
treatment
diagnosed
posttraumatic
with
stress
Her parents placed her
facility
reimbursement from the school system.
was
and
then
sought
The court found that “the
treatment of [the student’s] mental health and safety issues was
distinct and segregable from her educational needs.”
(Id.).
Moreover, the court noted that the student’s circumstances were
42
distinguishable from the student in Kruelle v. New Castle Cnty.
Sch.
Dist.,
“possesse[d]
642
[]
F.2d
687
Cir.
1981),
because
she
self-help
basic
(3d
and
social
skills”
and
“sufficient abilities to proceed in her studies in the less
restrictive environment of a private day school[.]”
54).
may
(Id. at
The court noted that, in contrast, a residential placement
be
required
in
circumstances
similar
to
the
student
in
Kruelle, 642 F.2d 687 (3d Cir. 1981):
In Kruelle, a mentally retarded child who
was unable to speak and not toilet trained
was found to need extensive around the clock
care as part of his FAPE. “[T]he concept of
education is necessarily broad with respect
to persons such as Paul. ‘Where basic selfhelp and social skills such as toilet
training,
dressing,
feeding
and
communication are lacking, formal education
begins at that point.’” Id. at 693 (quoting
Battle v. Commonwealth of Pennsylvania, 629
F.2d 269, 275 (3d Cir. 1980)).
See also
Abrahamson, 701 F.2d at 228 (holding that
only residential treatment could provide a
FAPE where the student could not eat, dress,
go to the bathroom, or care for himself in
any way).
M.C.’s
parents
have
argued
that
her
“residential
need
clearly comes from the same source as the disability code[.]”
(ECF No. 12-1, at 42).
It may be that M.C.’s disability code of
OHI13
with
is
intertwined
her
13
educational
problems,
but
M.C.’s primary disability is listed in her IEP as Other
Health Impairment (“OHI”), and is believed to impact her by
causing attention deficit hyperactivity disorder (“ADHD”),
43
Plaintiffs
residential
still
have
placement
educational progress.
not
met
their
is
essential
burden
for
to
M.C.
show
to
that
make
a
any
The ALJ performed a thorough review of
the testimony presented by each witness on M.C.’s educational
and therapeutic needs, and specifically, on whether she needed
to be in a residential placement to progress in her education.
(ALJ Decision, at 39-56).
He discredited some of the witnesses’
testimony on this issue because he believed they were improperly
influenced
by
M.C.’s
parents
regarding
the
availability
of
appropriate educational and therapeutic services in her area.
The ALJ believed this led the Rogers’ specialists to suggest a
therapeutic boarding school, a recommendation that may have been
made merely for the therapeutic aspects rather than because M.C.
needed the residential component.
(Id. at 51).
In addition, he
found that Ms. Satalino and Ms. Kimberly, M.C.’s social worker
and teacher at Glenholme, had not adequately demonstrated their
expertise in special education placements.
He also believed Ms.
Shacoski and Dr. Reese had both written very strong reports on
M.C.,
neither
placement.
Defendants’
of
which
(Id.
at
witnesses
suggested
51-52).
testified
M.C.
needed
Moreover,
that
M.C.
a
residential
Plaintiffs’
did
not
and
have
habitation needs, i.e., she was fully capable of brushing her
anxiety, Tourette Syndrome, mood dysregulation, and obsessive
compulsive disorder (“OCD”).
44
hair and teeth, dressing herself, and using the toilet on her
own.
(T. 175-76, 333-34, 671-72, 948-49); see Abrahamson, 701
F.2d 223 (finding that a residential program was essential for a
severely handicapped student whose developmental delays required
that he be given “continual instruction and reinforcement” in
general life skills such as how to “talk, respond to words of
warning, and dress and feed oneself”).
Glenholme,
derived
Ms.
from
Satalino,
the
testified
residential
M.C.’s social worker at
that
program
behavioral education, and life skills.
the
were
benefits
social
(T. 174).
to
be
education,
Although
these benefits may be desirable, they are not all essential for
M.C. to make progress in her education nor is a residential
program the only place where M.C. can gain these skills.14
See
Burke Cnty. Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir.
1990) (noting that “the Act . . . requires only that the child
be able to benefit from the instruction that she receives, not
that she be able to maximize her potential”) (internal quotation
and citation marks omitted).
Unlike the student in Abrahamson,
M.C.’s parents did not provide evidence that she would regress
14
Indeed, based on the evidence, RICA appears capable of
providing M.C. most if not all of the benefits described by Ms.
Satalino as desirable qualities of Glenholme’s residential
program.
For example, Ms. Schultz testified that RICA would
complete a functional behavioral assessment (“FBA”) and behavior
intervention plan (“BIP”) for M.C., and that RICA has many
resources and tools to help students like M.C. who have
behavioral issues.
45
by
living
at
education.
home
such
that
Accordingly,
she
the
ALJ
could
not
progress
in
found
that
correctly
her
a
residential placement was not necessary for M.C. in order to
make progress on her IEP.15
b.
M.C.’s Placement at RICA was Reasonably Calculated to
Provide Her a FAPE
Finally, Plaintiffs argue that by giving blind deference to
MCPS’s
witnesses,
the
ALJ
ignored
relevant
evidence
in
the
record and improperly found that RICA is an appropriate IEP
placement for M.C.
not
an
Specifically, Plaintiffs assert that RICA is
appropriate
placement
for
M.C.,
who
struggles
with
transitions, “due to the number of transitions that would be
expected [of her] each school day and the lack of self-contained
classrooms.”
(ECF No. 12-1, at 36) (emphasis in original).
Although they acknowledge that RICA provides temporary escorts
to assist students with transitions, M.C.’s parents assert that
this “escort accommodation is rarely utilized during a student’s
entire time at RICA.”
that
the
educational
ALJ’s
and
(Id.).
conclusion
therapeutic
In addition, Plaintiffs argue
that
needs
15
RICA
is
could
based
on
meet
his
M.C.’s
mistaken
Even if M.C.’s parents had presented sufficient evidence
that she required a residential placement, RICA could still
provide her a FAPE, as it offers residential services to
students who require them.
Because M.C. was never interviewed
by the RICA clinical team, however, they were unable to make a
recommendation as to whether they thought the residential
services were necessary to implement her IEP.
46
assumption
that
M.C.
would
be
placed
in
a
self-contained
classroom at RICA, when in reality all RICA high school students
are required to transition from class to class during the day.
Plaintiffs contend that the ALJ disregarded the testimony and
reports from the parents’ witnesses, and gave no reason why he
placed his reliance in Ms. Shacoski, MCPS’s school psychologist,
and
Ms.
Schultze,
the
Principal
at
RICA,
who
did
not
have
comparable familiarity with M.C. and her condition as did the
parents’ witnesses.
failed
to
provide
Plaintiffs conclude that because MCPS has
M.C.
reimbursement
for
attendance
Glenholme,
at
the
private placement for M.C.
a
FAPE,
expenses
which
they
they
they
are
entitled
incurred
argue
is
for
an
to
M.C.’s
appropriate
(Id. at 46).
Defendants respond that Plaintiffs are mistaken about the
standard of review as “they argue that their witnesses were more
credible
than
focusing
on
finding.”
reliance
those
the
called
process
by
by
which
(ECF No. 15-1, at 39).
on
Ms.
Schultze’s
the
School
the
ALJ
Board
reached
instead
his
of
fact-
Defendants support the ALJ’s
testimony
on
whether
RICA
could
provide M.C. a FAPE, by stating that it “focused on an extensive
description of the RICA program (Tr. 819-867) and an explanation
as to how that program was fully capable of implementing the
recommendations of the Glenholme IEP (Id. [at] 868-70), of Dr.
Reese’s report (Id. [at] 892-93) and, most importantly, of the
47
May 7, 2013 IEP [(Id. at 896-907)].”
(ECF No. 15-1, at 38
n.13).
The
ALJ
witnesses
did
not
regarding
ignore
the
testimony
transitioning
at
of
RICA;
Plaintiffs’
rather,
he
specifically addressed the parents’ transitioning argument in
his opinion, stating that “[t]he problem of transitions is no
more
formidable
at
Decision, at 52).
RICA
or
Frost
than
at
Glenholme.”
(ALJ
Moreover, his determination that RICA is an
appropriate placement for M.C. despite the fact that it would
require
her
example,
to
M.C.
transition
has
made
is
supported
educational
by
the
progress
record.
at
For
Glenholme,
despite the fact that she must transition from the residential
area to her classroom and from her classroom to art, music, and
gym
class.
At
RICA
she
would
be
required
to
make
some
additional transitions during the day, including from class to
class.
RICA, however, has numerous aids to make transitions
easier for students, including: providing escorts to students
who struggle with transitions and self-control; having teachers
and staff stand in the halls to assist students; and providing
maps and a buddy system.
extremely
well-qualified
Furthermore, Ms. Schultze, who is
in
the
16
area
of
special
education,16
Ms. Schultze has been working in the special education
field since 1977.
She has an undergraduate degree in special
education and a master’s degree in educational administration
and supervision. (BDX-56).
48
testified
that
successfully
to
it
is
important
transition
for
because
it
students
is
a
to
skill
learn
they
how
will
require throughout their lives and because it enhances their
self-esteem.
M.C.’s parents take issue with the fact that a
transition escort is rarely provided during the students’ entire
time
at
RICA.
As
Ms.
Schultze
testified,
however,
this
is
because most students who initially need a transition escort
progress to a point where they no longer need an escort.
855-857).
RICA
is
(T. at
M.C.’s parents also believe the ALJ’s finding about
mistaken
because
he
based
it
on
the
incorrect
presumption that M.C. would be in a self-contained classroom at
RICA.
(ALJ Decision, at 53).
The ALJ may have incorrectly
assumed RICA has self-contained classrooms, however, this does
not undermine his ultimate finding that RICA was an appropriate
placement.
His decision was not premised on the fact that M.C.
needed a self-contained classroom, nor does M.C.’s IEP state
such a need.17
Instead, the ALJ focused on the plethora of
17
Among other findings, M.C.’s IEP team and CIEP team found
that:
(1) “[M.C.] requires a small structured setting with
small classes and onsite mental health supports” (BDX-30-31);
(2) “[M.C.] requires to be in the classroom away from any
distractor (peers, noises, etc.) and to reduce distractions to
others due to her tics” (BDX-30-36); (3) M.C. will receive
social/behavioral and physical/environmental supports throughout
the school day (BDX-30-36). Nothing in the IEP report suggests
that M.C. requires a self-contained classroom, only a small
class setting, and Ms. Schultze testified that RICA classes
generally have 6-7 students and a teacher-student ratio of one
to four. (T. at 858-59).
49
services
available
therapeutic
needs,
at
RICA
that
fit
the
fact
that
and
M.C.’s
RICA
students with disabilities similar to M.C.’s.
53-54).
educational
has
served
and
many
(ALJ Decision, at
Although M.C. will be required to make several more
transitions a day at RICA than Glenholme, ample services are
available to help her with this process and there is no evidence
that requiring her to transition will deprive her of a FAPE.
Accordingly, M.C.’s placement at RICA is reasonably calculated
to provide her educational benefits and therapeutic services,
and to implement her IEP.
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Plaintiffs will be denied, and Defendants’ cross motion
for summary judgment will be granted.
A separate order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
50
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