Fritschle v. Andes

• Decision Date: 23 April 1999
• Docket Number: No. Civ. AMD 98-1694.,Civ. AMD 98-1694.
• Citation: 45 F.Supp.2d 500
• Parties: Mark Andrew FRITSCHLE, et al., Plaintiffs, v. John M. ANDES, et al., Defendants.
• Court: U.S. District Court — District of Maryland

45 F.Supp.2d 500

Mark Andrew FRITSCHLE, et al., Plaintiffs, v. John M. ANDES, et al., Defendants.

No. Civ. AMD 98-1694.

United States District Court, D. Maryland.

April 23, 1999.

Matthew B. Bogin, Michael J. Eig, Bogin & Eig, Washington, DC, for plaintiffs.

P. Tyson Bennett, Eric C. Brousaides, Reese & Carney, LLP, Columbia, MD, for defendants.

MEMORANDUM

DAVIS, District Judge.

In this case, plaintiffs Mark and Diane Fritschle, (the "Fritschles"), the parents of a learning disabled son, Mark Andrew ("Drew"), allege that the Worcester County Board of Education and its superintendent, John Andes (together, "WCBE"), violated the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. § 1400 et seq.,¹ by failing to provide Drew with a free appropriate public education ("FAPE") for the 1996-97 school year.² After a due process hearing, an Administrative Law Judge ("ALJ") found that WCBE did not deprive Drew of a FAPE and denied the Fritschles' request for reimbursement for the expense of placing Drew in a private residential facility.

The Fritschles have appealed and seek an order from this court reversing the ALJ's decision denying reimbursement.³ Pending before the court are the parties' cross motions for summary judgment. I have reviewed the administrative record and thoroughly examined the parties' submissions; no hearing is necessary. For the reasons discussed below, I will grant WCBE's motion for summary judgment.

I. FACTS

Drew, who is 18, has qualified for special education services since he was seven years old.⁴ He suffers from dyslexia, and experiences difficulty with reading, word identification and spelling.⁵ With the exception of a portion of his fifth grade school year, Drew has always attended private school, at his parents' expense. During his short tenure in the Worcester County Public School system, Drew experienced educational and emotional difficulties.⁶ Consequently, for the remainder of the fifth grade, and until the completion of his eighth grade year, Drew attended the Salisbury School, a private school.⁷ The Salisbury School is not a special education facility, however, it provided Drew with small classes and various learning accommodations; this was accompanied by one-to-one tutoring provided by the Fritschles.

In April 1995, Mrs. Fritschle approached school officials at the Stephen Decatur High School ("SDHS") about Drew's possible enrollment and inquired about special education services for the 1995-96 school year. Ultimately, in July 1995, the Fritschles enrolled Drew at the Kildonan School, a private residential facility in New York, which specializes in the education of dyslexic students. He has been educated by the Kildonan school since September 1995. At Kildonan, Drew's program includes a one-on-one language remediation tutorial five times a week for forty-five minutes a day, academic classes of 8-12 students and two hours of supervised study hall every evening.

On December 6, 1995, the Fritschles requested a due process hearing. The parties agreed, however, to commence the ARD process, rather than proceed directly to a due process hearing.⁸ The parties agreed that Drew should undergo additional evaluations and assessments. Thus, WCBE officials traveled to Kildonan to observe and evaluate Drew.⁹ These assessments revealed that Drew was an average reader, with low-average written language skills and low writing skills.

WCBE convened a second ARD meeting on April 11, 1996. The Fritschles, their attorney and the members of the evaluation team attended. The academic dean of Kildonan also participated by speaker telephone. The ARD committee recommended that Drew receive Intensity III services at SDHS.¹⁰ Drew would receive seven and a half hours of special education services per week, amounting to 90 minutes of special education in a separate classroom each day. In addition, the IEP specified that Drew was entitled to, inter alia, the following modifications: weekly progress reports to the Fritschles, possible utilization of alternatives to written assignments, extended time limits, use of taped books (when appropriate), preferential classroom seating, implementation of assisted note taking (when necessary), small group or individualized instruction and adjustment of the grading scale (if necessary).¹¹

The Fritschles declined to sign the IEP. In June 1996 they requested another due process hearing. In August 1996, the ALJ appointed Dr. Burton Lohnes as an impartial expert to assess the IEP and evaluate Drew's placement. Both parties agreed to this order. Dr. Lohnes concluded that the IEP drafted for Drew's 1996-97 school year and Drew's placement at SDHS was not appropriate. WCBE did not implement Dr. Lohnes's recommendations and instead hired its own expert, Dr. Stanley Rosner.

The administrative hearing reconvened in May, August and September 1997. The ALJ first addressed the Fritshles' preliminary argument that Md.Code.Ann., Educ. § 8-413(c), which establishes a one-tiered administrative hearing process, should not be applied to them.¹² The ALJ concluded that the Office of Administrative Hearings had proper jurisdiction over the case and that the application of the one tiered administrative hearing procedure was not improper.

As to the merits of the Fritschles' challenge, the ALJ concluded that WCBE did not fail to provide Drew with a FAPE and that the 1996-97 IEP and proposed placement at SDHS were appropriate. Therefore, she declined to order that WCBE reimburse the Fritschles for the cost of placing Drew in private school. The Fritschles timely appealed.

II. IDEA STATUTORY FRAMEWORK

The IDEA was drafted to "assure that all handicapped children have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(c). The "centerpiece" of this "free appropriate public education" is the individualized education program ("IEP") which is a collaboratively developed plan for a disabled child's education. See Reusch v. Fountain, 872 F.Supp. 1421, 1426 (D.Md.1994). "The IEP is supposed to be the joint product of discussions among the child's parents, teachers, and local school officials and must specify goals and short-term objectives for the child, any related services, and the criteria and evaluation procedures that will be used." Sanger v. Montgomery County Bd. of Educ., 916 F.Supp. 518, 519 (D.Md.1996) (citing 20 U.S.C. § 1401(a)(20)(a)-(f); COMAR 13.A.05.01.09). This written plan must be appropriately reviewed and revised. See 20 U.S.C. § 1414(a)(5).

The IDEA mandates that all disabled children are entitled to a FAPE. See Board of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The Supreme Court has not set forth a precise formula for determining what constitutes a FAPE. More generally, it has stated that the child must receive "access to specialized instruction and related services that are individually designed to provide educational benefit." Rowley, 458 U.S. at 201, 102 S.Ct. 3034. Moreover, although a school system is not required to maximize a child's potential, see id. at 189, 102 S.Ct. 3034, it is imperative that the educational placement "be likely to produce progress, not regression or trivial educational advance." Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985), cited with approval in Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238 (3d Cir.1999) (reiterating earlier holding that "IDEA `calls for more than a trivial educational benefit' and requires a satisfactory IEP to provide `significant learning,' ... and confer `meaningful benefit.'") (citations omitted).

In addition, the IDEA confers upon a federal court power to "grant such relief as [it] determines is appropriate," 20 U.S.C. § 1415(e)(2), including the award of retroactive reimbursement for a parent's expense in unilaterally placing a child in private school. See School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Thus, if the court determines that the IEP proposed by the school district is inappropriate and that the private placement chosen by the parents is proper, a court can order the school board to reimburse the parents for that expense. See id at 369-70, 105 S.Ct. 1996; Board of Educ. of Montgomery County v. Brett Y., 959 F.Supp. 705, 708 (D.Md.1997), aff'd, 155 F.3d 557 (4th Cir.1998) (table). Moreover, the private placement need not be a stateapproved facility; the essential question is whether the private placement is proper, that is, whether it confers an educational benefit on the child. See Florence County Sch. Dist. v. Carter, 510 U.S. 7, 14, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993); see also 34 C.F.R. § 300.403(c) (stating that "a court or a hearing officer may require the agency to reimburse the parents for the cost of ... enrollment [in private school] if the court or hearing officer finds that the agency had not made [a] FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate"). Unilateral private placement is effected at parents' financial risk, however, if the IEP is later determined by a court to have been appropriate. See Burlington, 471 U.S. at 372, 105 S.Ct. 1996.

III. STANDARD OF REVIEW

To examine whether a school board has complied with the IDEA, a court must follow the two step inquiry set forth in Rowley. See 458 U.S. at 206, 102 S.Ct. 3034. First, the court must determine if "the State complied with the procedures set forth in the Act." Id. Second, the court must evaluate whether the "the individualized educational program developed through the Act's procedures [is] reasonably calculated to enable the child to receive educational benefits." Id. at 207, 102 S.Ct. 3034. The burden of proof of establishing a violation of the IDEA falls on the party challenging the...