Scott et al v. Weast, et al, No. 8:2009cv01581 - Document 18 (D. Md. 2010)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/10/10. (sat, Chambers)

Download PDF

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : T.S., et al. : v. : Civil Action No. DKC 09-1581 : JERRY D. WEAST, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this action arising under the Individuals with Disabilities Education Act are: (1) a motion for summary judgment filed by T.S. by and through his parents (Paper 10); and (2) a cross-motion for summary judgment filed by Defendants Montgomery County Board of Education and Jerry D. Weast (Paper 13). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiffs motion will be denied, and Defendants cross-motion will be granted. I. The Individual with Disabilities Education Act The Individuals ( IDEA ), 20 U.S.C. with § 1400 Disabilities et seq., Education and Act 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 children a FAPE to with disabilities in accordance with the IDEA are found at Md. Regs. Code tit. 13A, § 05.01. The child FAPE with guaranteed meaningful by the IDEA must access to the provide a educational disabled process. See Board of Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192 (1982)(hereinafter Rowley ). The FAPE must be reasonably calculated benefit on the disabled child. to confer some Id. at 207. educational 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. 1412(a)(5)(A); see also 34 C.F.R. § 300.550. 20 U.S.C. § The IDEA does not require that a school district provide a disabled child with the best possible education, Rowley, 458 U.S. at 192, 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, 2 trivial learning opportunities. ) (citing Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4th Cir. 1985)). To assure delivery a school district to of provide Education Program ( IEP ) learning disabled. 20 a an for FAPE, appropriate each U.S.C. § the IDEA requires child 1414 Individualized determined (d). That to be 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 individual regular who can and special education interpret results of teachers, evaluations child, and, when appropriate, the child himself. of an the 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. The IDEA provides a 20 U.S.C. § 1414 (d) (1) (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 3 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. Regs. Code 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. 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 child, or the provision of a [FAPE] to such child. 1415(b)(6). parents After also are such a entitled complaint to request has a been due In Maryland, the Maryland Office Hearings conducts the due process hearing. the 20 U.S.C. § received, process conducted by the state or local educational agency. 1415(f). of the hearing 20 U.S.C. § of Administrative 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). 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. Department of Education, 471 U.S. 359, 369-70 (1985). To establish entitlement 4 to reimbursement for unilateral private placement, certain conditions must be met. Title 20, § 1412(a)(1)(C)(ii), states: 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. Reimbursement may be reduced or denied if: (aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa); Or, (III) upon a judicial finding of unreasonableness with respect to actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii)(I),(II). Finally, in order to receive reimbursement, the private education services obtained 5 by the parents must be appropriate to meet the child s needs. Sch. Comm. Of Burlington, 471 U.S. at 370. II. Background A. Factual Background T.S. is a nine-year old boy who lives in Maryland with his mother, father developmental and delays younger in sister.1 speech, T.S. language and began showing gross and fine motor skills when he was a toddler, and at eighteen months began receiving services Toddler s Program. through Montgomery County Infant and By the time of the due process hearing, T.S. had been diagnosed with several disorders, including attention deficit hyperactivity developmental disorder, coordination speech-language disorder with impairment, dyspraxia, and also electrical status epilepticus of sleep ( ESES ) a disorder in which seizures occur primarily during sleep. ESES can be transient. For the 2004-2005 school year, T.S. entered the preschool education program ( PEP ) for three year old children at Stone 1 Unless otherwise noted, all facts are from the Findings of Fact made by Administrative Law Judge ( ALJ ) Mary Shock, found at Paper 3. Plaintiffs offer their own detailed version of the facts that differs slightly from those published by the ALJ, and Defendants dispute some of the facts articulated by Plaintiffs. There is no evidence that the findings by the ALJ were not regularly made, thus the findings are prima facie correct. Doyle v. Arlington County School Board, 953 F.2d 100, 103 (4th Cir. 1991). 6 Mill Elementary School, a public general education school. also spent his 2005-2006 year at PEP at Stone Mill. He He was coded for both years as Developmentally Delayed. An IEP team met on March 27, 2006 to review T.S. s program. T.S. would be five years old for the 2006-2007 school year and therefore eligible for kindergarten. The IEP team recommended that he be placed at the school-based learning center at Rachel Carson Elementary School in the special education kindergarten class. T.S. s recommendation.2 parents ( the Parents ) (TS #5 at 13). signed the IEP At Rachel Carson, T.S. would receive speech and language therapy, occupational therapy and physical therapy. He would also participate with nondisabled peers in general school activities including lunch and recess. The code of Developmentally Delayed was continued. Several months later, on June 13, 2006, the Parents asked MCPS to approve an independent educational evaluation. The Parents had not requested any testing prior to that date. At a July 11, 2006 IEP team meeting, the team decided to conduct speech, language, occupational educational assessments. therapy, psychological and On July 28 and 31, Elizabeth Rathbone, 2 On May 15, 2006, the Parents applied to the Katherine Thomas School for the 2006-2007 school year. Paper 13, FN 3; MCPS #5-A. On June 2, 2006, they were informed of T.S. s acceptance, and on June 13, 2006, they sent their non-refundable deposit to Katherine Thomas, reserving his place. MCPS #5-B and #5-C. 7 Ph.D., conducted Special a psychological Educator; Pathologist; and Stacey Ursula assessment. Susan Silverblatt, Tello, Carmi, Speech/Language Occupational Therapist, each wrote a developmental profile of T.S. as well. On August assessments. 31, 2006, the IEP team met to review the On September 19, 2006, the IEP team reconvened. The team agreed on goals and again recommended that T.S. be placed at Rachel Carson for the 2006-2007 school year. T.S. was again coded as developmentally delayed. 3 The parents placed their for son school. at the Katherine Thomas School the 2006-2007 Katherine Thomas is a private special-education school. In September, October and December 2006, T.S. participated in a screening study for autism at the National Institutes of Mental Health ( NIMH ). T.S. met the criteria for developmental delay, but not for autism. In February 2007, T.S. underwent several other tests: an electroencephalogram which was abnormal due to slow background and bilateral multifocal epileptic, and a sleep study, diagnosed T.S. which as was also suffering abnormal. from ESES. Dr. On Sadat March 8, Shamim 2007, William Gaillard at the Children s National Medical Center saw 3 On page 114 of TS #21, a note says that the Parents requested full-time special education + placement at Katherine Thomas + TLC. On the other hand it reads that, IEP team feels that T.S. can benefit from participation with non-disabled peers. 8 T.S. for a neurologic consultation. At that point, T.S. was five years old and eleven months and had had no clinical history of seizures. Dr. Gaillard reviewed all the studies. Dr. Gaillard also recommended beginning treatment with steroids and zantac. (Paper 3, Ex. TS #31 at 2). On March 13, 2007, the Parents sent the studies to MCPS, although two days later they asked MCPS to withhold the reports from personnel until they provided consent. According to Defendants, the Parents did not provide Dr. Gaillard s report to the IEP team until the May 2007 meeting. (Paper 13, FN 17). On April 10, 2007, Dr. Eileen Vinning from Johns Hopkins saw T.S. for a second opinion regarding the sleep study findings and the other recommendation. tests. (Paper She 3, TS confirmed #31). She Dr. also Gaillard s confirmed his medication recommendations, and suggested other options as well. Both Dr. Gaillard and Dr. clinical history of seizures. On May 2, 2007, Vinning noted that there was no (Paper 3, TS #31). William Tyson, reviewed the NIH autism screening report. School Psychologist, He found that T.S. met the criteria for the special education disability of mental retardation. He did not discuss the ESES in this assessment. On May 7, 2007, the IEP team met for the annual review of T.S. s IEP and to determine his special education disability code. The Parents then gave MCPS a copy of Dr. Gaillard s 9 report of T.S. s neurological condition. The meeting ended when the parties present disagreed on the code. On May 30, 2007, Mr. Tyson revised his review of the NIMH study, and again noted that T.S. appears to meet the criteria for the special education disability of Mental Retardation (01) . . . . (TS #42, at 4). A follow-up IEP meeting occurred on June 11, 2007. The Parents did not attend because MCPS did not give them a copy of Mr. Tyson s psychological review before the meeting. At that point a series of scheduling issues arose. In July 2007, the Parents scheduled T.S. to visit Vincent Culotta, Ph.D. for a neuropsychological evaluation. A follow-up IEP team meeting was scheduled to occur on July 25; however, the Parents postponed it pending Dr. Culotta s evaluation. Then the Parents postponed Dr. Culotta s evaluation because T.S. had begun taking ESES medication, and his Parents wanted his medication regime to stabilize before he underwent further testing. Without the Parents consent, the IEP team met on August 14, 2007. The Parents did not attend. The IEP team developed goals and objectives for T.S. s 2007-2008 year and proposed that he attend Rachel Carson and be placed in a special education classroom for eighty remaining twenty percent percent in of the general 10 school week, education and the environment (primarily for lunch and recess). The team did not code him at that time. On August 21, 2007, the Parents notified MCPS that they found the IEP inappropriate for T.S., that they were placing him in a non-public school, and that they were requesting that MCPS fund the placement. T.S. attended the Diener School during the 2007-2008 school year, which was the first year that the school was opened. The school and developed and implemented a learning profile behavior plan and T.S. made slow, steady progress in his goals. Dr. Culotta finished his neuropsychological evaluation of T.S. in October 2007, and the Parents sent the report to MCPS on February 15, 2008. Mr. Tyson reviewed the report on March 14, 2008, and MCPS scheduled an IEP team meeting for March 17, 2008 which was subsequently postponed until May 5, 2008. Mr. Tyson and two other MCPS officials (a special education resources teacher and a speech-language pathologist) went to Diener to observe T.S. on March 31, 2008. On May 5, 2008, the IEP team met to review and discuss the observations, Dr. Culotta s report, the PEP evaluations and all the medical studies. The parties held an IEP team meeting on June 2, 2008. The team agreed that T.S. would be coded Other Health Impaired ( OHI ), and the team agreed on T.S. s goals and objectives for 11 the 2008-2009 school year. The case was then referred to MCPS central IEP ( CIEP ) team to discuss and decide placement. T.S. requires including: a small, student-to-teacher activities special opportunities for and contained self ratio; throughout education classroom planned, the supervised, day; over-learning related minimized and with services a low kinesthetic distractions; review; psychological consultation; a behavioral intervention plan; and accommodations including extra processing and response time, cuing to remain on task, and sensory breaks. On July 7, 2008, the CIEP team held a meeting to discuss T.S. s placement. Carl Sandburg The team recommended that he be placed in the Learning Center special education day school. attended the meeting. ( CSLC ), a separate public The Parents and their counsel (MCPS #37).4 In a letter to an attorney for the Parents dated July 11, 2008, MCPS noted that after discussions with the staff at CSLC, their response was consistent 4 with the IEP team s During the meeting, George Moore, the IEP chair, noted that the Diener School is not approved for special education. (MCPS #37; Addendum, at 1). The Parents also expressed their support for the Diener School, noting that it was the best thing that has happened to T.S. (Id. at 2). Finally, a note on the bottom of Addendum page 4 says that parents will continue placement (private) at Diener . . . and is then cut off. (Id. at 4). 12 recommendation that [T.S. s] needs can be met at Carl Sandburg Center without a one to one aide. (Paper 3, TS #86). The Parents decided to keep T.S. at Diener and decided to seek reimbursement for the placement. They then sought review of the decisions made by MCPS through the appropriate channels. See 20 U.S.C. § 1415. B. Procedural Background On November 7, 2008, the Parents, on behalf of T.S., filed a due process complaint with the Office of Administrative Hearings ( OAH ) requesting reimbursement for the tuition to the private schools at which they had placed him. (TS #1). On November 18, 2008, the parties waived the resolution meeting and did not engage in mediation, and on November 25, the case was transmitted to OAH. The due process hearing was held from February 9-13, 2009 before Administrative Law Judge Mary Shock ( the ALJ ). The parents requested reimbursement for the 2007- 2008 and 2008-2009 school years at Diener. The ALJ framed the issues presented to her as follows: 1) Was the August 14, 2007 IEP proposed by MCPS reasonably calculated to provide T.S. with a free appropriate public education for the 2007-2008 school year? 2) Was the July 7, 2008 IEP proposed by MCPS reasonably calculated to provide T.S. with a free appropriate public 13 education for the 2008-2009 school year? 3) If not, is the Diener School an appropriate educational placement for T.S., and if so, are the Parents entitled to reimbursement of tuition and expense for their unilateral placement of T.S. at the Diener School for the 2007-2008 school year and/or the 2008-2009 school year? (See ALJ Decision, at 3-4). On March 10, 2009, the ALJ issued her decision in [T.S.] v. Montgomery County Public Schools, OAH No: MSDE-MONT-OT-09-41152. She held that the parents failed to prove that MCPS did not offer T.S. a FAPE for the 2007-08 and 2008-09 school reimbursement. years, and denied their request for (ALJ Decision, at 36). T.S., by his parents, filed an appeal to this court on June 16, 2009 naming Jerry Weast, Superintendent of MCPS, and the Montgomery County School Board as co-Defendants. (Paper 1). Plaintiffs filed a motion for summary judgment on October 26, 2009. (Paper 10). Defendants filed a cross-motion for summary judgment (acting as a response) on January 6, 2009. Both parties then filed replies. Because Judge Schock s (Paper 13). (Papers 14 & 17). factual findings were regularly made, these findings, including her finding that each IEP was reasonably calculated to provide T.S. with benefit, must be viewed as prima facie correct. 14 an educational MM ex rel. DM, 303 F.3d at 531. It remains, however, for this court to reach its own de novo determination of the facts, giving due weight to Judge Shock s findings, and to explain any deviation from those findings. Id. at 530-31. III. Cross Motions for Summary Judgment A. Standard In MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523 (4th Cir. 2002), 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. 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. The court is not, however, to substitute [its] own notions of sound educational policy for those of local school authorities. . . . 303 F.3d at 530-31 (citations omitted). This standard works in tandem with general standards of review for summary judgment, which also apply in IDEA cases, as illustrated in Bd. of Educ. of Frederick County v. I.S. ex rel. Summer, 325 F.Supp.2d 565 (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 15 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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (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, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Where, as here, cross-motions 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. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). 325 F.Supp.2d at 578. 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. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 16 (2005); Cavanagh v. Grasmick, 75 F.Supp.2d findings were 446, 457 (D.Md. a regular 1999). If manner the and administrative have considered prima evidentiary made support, facie correct. in they Cavanagh, 75 are to F.Supp.2d be at 457 (citing Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991)). Additionally, in giving due weight to the findings of the ALJ, this court owes deference to the ALJ s determinations of the credibility of witnesses. Wagner v. Board of Education of Montgomery County, 340 F.Supp.2d 603, 611 (D.Md. 2004). hearing the credibility. The witnesses, fact-finder, is in the who has best the advantage position to of assess Justin G. ex rel. Gene R. v. Board of Education, 148 F.Supp.2d 576, 588 (D.Md. 2001)(quoting Board of Education of Montgomery County v. Hunter ex rel. Hunter, 84 F.Supp.2d 702, 706 (D.Md. 2000)); see also Doyle, 953 F.2d at 104. B. Analysis The United States Court of Appeals for the Fourth Circuit has found that In Burlington School Committee v. Mass. [] Department of Education, 471 U.S. 359 (1985), the Supreme Court held that parents who believe that the education offered by the public schools is inappropriate may unilaterally place their child in a private school and are entitled to reimbursement from the state for tuition and expenses if it is subsequently determined that the 17 public school system failed to comply with its statutory duties and that the private school provided an appropriate education. Carter v. Florence County School District Four, 950 F.2d 156, 158 (4th Cir. 1991). Based on the Supreme Court s decision in Burlington, the analysis determine to Fourth Circuit when has parents articulated should be a two-part reimbursed for A.B. v. Lawson, 354 F.3d 315, 320 (4th private school placement. Cir. 2004)(citing 41 U.S. at 369-370). First, the court must determine that the IEP designed for the child was inappropriate. Second, the court then examines whether the unilateral private placement resulted in an appropriate education for the child s needs. Id. first In this case, the analysis begins and ends with the prong, because the IEPs designed for T.S. were not inappropriate. 1. Procedural Violations Plaintiffs insist that the ALJ erred by finding that MCPS provided a FAPE to T.S. They contend that MCPS did not comply with the mandatory procedures in development and preparation of the IEP, and therefore T.S. was not provided a FAPE. Before addressing their specific contention which Defendants argue is not even properly before the court it is worth noting that, as far as IDEA is concerned, process matters only insofar Beginning in as it 1997, interferes the Fourth with Circuit 18 provision has made of a FAPE. clear that, ordinarily, procedural violations harmlessness analysis. of IDEA are subject to a The Fourth Circuit has explained that it took the opportunity in Gadsby [ex rel. Gadsby v. Grasmick] to clarify [its] holding in Hall as follows: However, to the extent that the procedural violations did not actually interfere with the provision of a free appropriate public education, these violations are not sufficient to support a finding that an agency failed to provide a free appropriate public education. DiBuo ex rel. DiBuo v. Bd. of Educ. of Worcester County, Md., 309 F.3d 184, 190 (4th Cir. 2002) (quoting Gadsby ex rel. Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir. 1997)). Circuit reiterated that under our circuit The Fourth precedent, a violation of a procedural requirement of the IDEA (or one of its implementing regulations) must actually interfere with the provision of a FAPE before the child and/or h[er] parents would be entitled to reimbursement relief[,] even when the procedural violation interfere[s] with the parents ability to participate in the development of their child s IEP. DiBuo, 309 F.3d at 190-91 (4th Cir. 2002); see also A.K. ex rel. J.K., 484 F.3d at 679 n.7 (noting harmlessness that analysis, procedural while violations substantive IDEA are not). 19 are subject violations of to the a. Plaintiffs Failure to Evaluate Argument Plaintiffs argue that the specific procedural failure in this case occurred when MCPS did not properly evaluate T.S. s needs. (Paper 10, at 19-22). They argue that MCPS did not live up to the IDEA s standards in medically evaluating T.S., and that once T.S. was properly diagnosed with ESES in February 2007, MCPS did learning. Parents not (Id. were evaluate at forced 22). to how the ESES obtain their affect his Plaintiffs Therefore, would argue, the own private evaluation, which took several months to complete because of T.S. s ongoing medical needs and lack of an established regimen for treating his condition. (Id. at 24). Defendants failure to argue evaluate that Plaintiffs argument in their did not Due raise Process this Hearing Complaint and did not raise it during the ALJ hearing until their closing argument. (See Transcript at 1374, 1390). During the closing argument at the hearing, and again in their motion for summary judgment, Defendants object to Plaintiffs arguments regarding a failure to evaluate. 13, at 27-29). contentions. Plaintiffs (See Transcript at 1398; Paper confront this argument with two First, they say that they did in fact raise the issue of MCPS failure to evaluate because they asserted that MCPS denied T.S. a FAPE, which include a failure to evaluate. is an allegation (Paper 10, at 25). 20 that can Second, in their reply, Plaintiffs alternate tactics and argue that the Due Process Hearing Complaint did raise the issue of miscoding and that miscoding and failure to evaluate are one and the same. (Paper 14, at 9). Despite Defendants objections during the closing arguments of the ALJ hearing, the evaluations in her Opinion. ALJ squarely covers the issue of She writes that The threshold issue in this case is whether MCPS denied the Student a FAPE because it failed to properly evaluate the Student s disabilities, or because it failed to offer the Student appropriate goals and objects, and placement for the 2007-2008 and 20082009 School Years. (ALJ Opinion, at 29). She goes on to discuss the law related to medical under evaluations regulations. the IDEA and (See ALJ Opinion, at 30-31). its accompanying She finds that even if MCPS was obligated to obtain medical services for diagnosis or evaluation of the Student s education needs based on the diagnosis of ESES, failure to do so by the summer of 2007 did not deny T.S. a FAPE because process after May 7, 2007. the (Id.). Parents abandoned the IEP The ALJ ultimately finds that T.S. was not denied a FAPE for either 2007-2008 or 20082009 and thus implicitly also holds that even if MCPS did not perform the medical evaluations that Plaintiffs argue it did not, the point is moot. The ALJ has already discussed the issue of T.S. s evaluations (or lack thereof), and implicitly rejected 21 Defendants argument that the issue was not before her. The reason the for the rule that only issues raised in administrative proceedings may be pressed before the court is not offended in these circumstances. b. The Initial Evaluation and 2006-2007 School Year5 Plaintiffs arguments, however, are ultimately unavailing because MCPS complied with the IDEA s mandates for process and created IEPs with appropriate goals and objectives for each school year. The first IEP team meeting that is relevant to this case occurred on March 27, 2006, as noted above. After this meeting, the Parents sent a letter to MCPS asking MCPS to conduct an educational evaluation. (TS #8). That letter, which came from Plaintiffs counsel, said that Montgomery County Public Schools has not completed any psychological or educational evaluations of [T.S.], despite numerous requests from his parents to do so. We are therefore requesting that MCPS approve a full Independent Educational Evaluation immediately. (TS #8). Defendants dispute the idea that the Parents had made previous requests for an evaluation and contend that this letter was the first request for an evaluation. 5 A letter included in Although Plaintiffs are not seeking reimbursement for the 2006-2007 school year, because the IEP process builds upon itself each year, it is important to understand what happened when the IEP team first came together to create T.S. s IEP. 22 evidence from MCPS dated June 14, 2006 states their position, and notes that now that the client is making a request for assessment, MCPS will convene an IEP meeting to discuss the evaluation process. (TS #9). At an IEP team meeting in July 2006, the team decided to conduct several assessments, all of which were completed within a month s time. On August 31, 2006, the IEP team met again to review the assessments. At a follow- up meeting T.S. was coded as having developmental delays and the team agreed that Rachel Carson would be appropriate for him. Within defects. this chain of events, there are no procedural The Parents asked for an evaluation, MCPS promptly complied, and the evaluation was reviewed and the data used when the recommendation for Rachel Carson was made. Finally, the goals and objectives at Rachel Carson are substantively similar to the goals and objectives for T.S. at Katherine Thomas. (See ALJ Opinion, at 12-13). At that point, the Parents decided to enroll T.S. in a series of facilities. medical tests at NIMH and other nearby medical The tests revealed, among other things, that T.S. was suffering from ESES. They received all the tests in March and sent some of the reports to MCPS at that point. They brought a review by Dr. Gaillard to the IEP team s May 2007 meeting. 23 2. The 2007-2008 School Year Creating the IEP and recommending placement for the 20072008 school year proved more contentious than the previous year. Plaintiffs argue that Mr. Tyson, the IEP team member psychologist, did not adequately review the information provided by the Parents to MCPS prior to the May meeting and then, when he agreed to include it in his revised report about T.S., he did nothing to learn more about it or how it affected [T.S.]. (Paper 10, including at Mr. 32). Tyson Parents ever argue reviewed that the nobody medical that the Parents had submitted to the IEP team. from MCPS, documentation (Id.). The Parents were also angry that Mr. Tyson suggested coding T.S. as mentally retarded for the 2007-2008 school year. No code was ultimately used that year because none was agreed upon. After the May 7, 2007 IEP team meeting that ended when the parties disagreed on the code for T.S., Mr. Tyson revised his review of the reconvened. NIMH study. On June 11, 2007 the IEP team The Parents, however, refused to attend because MCPS did not give them a copy of Mr. Tyson s review before the meeting. Although it was their right to refrain from attending, as the ALJ noted, the law does not require that evaluations be provided in advance. The Parents then postponed the next IEP team meeting which was to occur on July 25, 2007 and did not attend the meeting scheduled on August 14, 2007. 24 Because the school year was about to begin and no IEP had been devised, the IEP team met on August 14, 2007 without the Parents. Federal regulations at 34 C.F.R. § 300-322 clarify parental participation in an IEP team. The regulations note that while the school district must give notice to parents with the purpose, time, and location of the meetings and who will be in attendance, a meeting may be conducted without a parent in attendance if the public agency is unable to convince parents that they should attend. 34 C.F.R. § 300-322(d). Although several attempts were made to hold the IEP team meeting with the Parents, the team was finally forced to meet without them. The ALJ the found that based on the facts above and because Parents did not get in touch with the IEP team again until February 2008 the Parents had essentially abandoned the IEP process and placed T.S. at a private school. Plaintiffs argue that the ALJ erred in finding that the parents abandoned the IEP process, and that MCPS did not provide a FAPE for the 2007-2008 year. The ALJ found that MCPS first had notice of the Student s ESES diagnosis when the Parents sent the EEGI, z-ray, and sleep study reports on March 13, 2007. (TS #27, 28, 48). Although the Parents initially curtailed MCPS review of those reports, MCPS staff had the reports at least by the May 7, 2007 IEP team meeting. At that meeting, the Parents also gave MCPS Dr. Gaillard s report of his 25 neurological condition. (TS #31). Rather than discussing the reports and any educational implications, however, the parties argued about the MR coding. William Tyson, MCPS School Psychologist, who had been assigned to review and discuss the NIMH autism report, (TS #39), explained that the Student met the criteria for an MR code based on the testing. The Parents disagreed. Words were exchanged. The meeting could not continue because of the hostility between the parties. After the May 7, 2007 meeting, the Parents failed to return for any IEP team meetings for the 2007-2008 School Year. . . . While the law requires each public agency to ensure parental participation in the IEP process by giving notice of meetings and other information, parents are not required to attend the meetings. 34 C.F.R. 300-322 (2008). I find that the Parents in this case waived their right to participate in the process, and, instead, placed the Student at a private school. (ALJ Opinion, at 31-32). There are several reasons that Plaintiffs fail to show that MCPS did not offer T.S. a FAPE. First, although the characterization by the ALJ of abandonment of the process by the Parents may be unduly harsh, it is clear that Parents had the opportunity to participate in the meetings and chose not to, as was their right. This fact, however, does not mean that any procedural violation has occurred that would result in denying T.S. a FAPE. Second, any procedural irregularity that may have occurred with Mr. Tyson s review did not actually interfere with the provision of a FAPE. The IEP team met and promulgated goals 26 and objectives for the school year, and found that Rachel Carson could provide an environment in which he could meet those goals. Plaintiffs do not present any evidence other than preference by the Parents that Rachel Carson was not appropriate for T.S. During the ALJ hearing, several witnesses including an expert in special education all testified that Rachel Carson would have provided an appropriate placement for T.S. Rachel Carson environment for participate in would peers. T.S. recess have provided because and he lunch the would with Furthermore, least have restrictive been non-special able to education Finally, it was objectively unreasonable for the Parents to refuse to attend any of the meetings scheduled to review their son s IEP before the 2007-2008 school year. Parents may have been continuing to gather While the information and evaluations about their son s disorder, the IEP team meetings could not simply be pushed back over and over again, because an IEP needed to be created for T.S. before the beginning of the school year. Whether the Parents behavior is termed abandonment or unreasonable, it is clear that they were not engaged with the IEP team during the summer or fall of 2007. Therefore, under 20 U.S.C. § 1412(a)(1)(C)(iii)(III), reimbursement for attendance at the Diener school may be denied. Plaintiffs offer one final argument attacking the 2007-2008 IEP. They argue that because MCPS decided that CSLC rather 27 than Rachel Carson - would be appropriate for T.S. for the 20082009 school year, MCPS erred in not placing him at CSLC the previous year. having any This argument has been consistently denied as merit. The Fourth Circuit, in Shaffer ex rel. Schaffer v. Weast, 554 F.3d 470 (4th Cir. 2009), addressed a similar argument. student s tenth In grade that case, IEP the which Parents was argued different that from a his previous IEPs was an admission by the school system that he had a severe auditory processing problem and had needed small classes all along. eighth-grade IEP They argued that this was proof that the was inappropriate. The Fourth Circuit characterized Plaintiff s request to rule this way as promoting a hindsight-based review that would have conflicted with the structure and purpose of the IDEA. Id. at 475. noted that Judicial review of IEPs under the IDEA is meant to be largely prospective and to focus on a child s needs looking forward; courts thus ask whether, at the time an IEP was created, it was reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at 207; Burlington, 736 F.2d at 788; Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999). But this prospective review would be undercut if significant weight were always given to evidence that arose only after an IEP were created. Cf. Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3rd Cir. 1994) (affirming the district court s conclusion that evidence of a later IEP was 28 The court irrelevant to the issue appropriateness of prior IEPs). Id. at 477. of the Furthermore, if services added to a later IEP were always used to cast doubt on an earlier one, school districts would develop a strong disincentive against updating their IEPs based on new information. This scenario is the exact opposite of what Congress intended when it provided for regular review and revision of IEPs, see 20 U.S.C. § 1414(d)(4)(A), and it would do little to help the interests of disabled children. Id. In this case, a new evaluation was brought to the attention of the IEP team after the 2007-2008 IEP had been created. The Parents forwarded a report completed by Dr. Culotta in October 2007 to the IEP team in February 2008. Furthermore, the Parents were once again engaged in the IEP team meetings in 2008 and brought with them their understanding of what was happening with their son. The 2008-2009 IEP cannot be used to discredit the earlier IEP that the team had formulated by August 2007. 3. The 2008-2009 School Year The ALJ found that the Parents failed to prove that the Student s 2008-2009 IEP was implemented at Carl Sandburg. inappropriate or could (ALJ Opinion, at 36). not be After reviewing the procedures used by the IEP team, and the goals and objectives set, there is no evidence that T.S. did not receive a FAPE for the 2008-2009 year and no evidence that the goals and objectives set could not have been implemented at CSLC. 29 The IEP team met on June 2, 2008 and agreed on goals and objectives for T.S. for the following school year. After not coding him at all the previous year, the team decided that a code of Other Health Impaired was appropriate. A CIEP team met on July 7, 2008 to discuss T.S. s placement and recommended that he be placed at CSLC, which the team decided and the ALJ held could implement his 2008-2009 IEP. (ALJ Opinion, at 24). Ultimately, the Parents decided unilaterally to keep T.S. at the Diener School. Plaintiffs argument for reimbursement based on failure to provide a FAPE in 2008-2009 is premised on accepting that there was no FAPE for the 2007-2008 school year. In their arguments Plaintiffs insinuate that if MCPS would have done the right thing by placing T.S. at a school like CSLC in 2007, then the Parents may have acquiesced and sent T.S. there. However, because MCPS did not, the Parents were forced to go out and find Diener and send T.S. there and they did not want to move him after one year. Plaintiffs contend that the ALJ was wrong to find that the school district had provided a FAPE through its recommendation of CSLC. Ultimately, their findings must be sustained. arguments fail and the ALJ s Although moving a child after a single school year can be difficult, the desire not to disrupt T.S. does not mean that MCPS failed to offer T.S. a FAPE (as the 30 ALJ noted). After admitting that the parents were impressed with much of what they saw at Carl Sandburg, and would have considered it, had the timing been different . . . Plaintiffs half-heartedly attempt to explain that they did not have faith in the Principal at CSLC and that therefore they did not believe it was a good fit. at the ALJ (Paper 10, at 35). hearing that CSLC could Many witnesses testified implement the goals and objectives that the IEP team had decided upon for the 2008-2009 year. (See ALJ Opinion, at 20-24). Indeed, another student with ESES was attending CSLC at that time and so the staff had learned about the disorder. It is clear that T.S. s IEP could have been successfully implemented at CSLC. Plaintiffs have failed to prove that the 2007-2008 IEP was inappropriate They or similarly could failed not to be implemented prove that the at Rachel 2008-2009 inappropriate or could not be implemented at CSLC. provided a FAPE for both school years. Therefore, Carson. IEP was T.S. was no need exists to move on to the second prong of the Burlington test on reimbursement for private school placement by parents. 31 IV. Conclusion For the foregoing reasons, the motion filed by Plaintiffs will be granted. denied and the motion filed by Defendants will A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 32 be

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.