R.F. v. Cecil Cnty. Pub. Sch.
| Decision Date | 21 June 2018 |
| Docket Number | Civil Action No. ADC-17-2203 |
| Parties | R.F., et al., Plaintiffs, v. CECIL COUNTY PUBLIC SCHOOLS, Defendant. |
| Court | U.S. District Court — District of Maryland |
Defendant, Cecil County Public Schools ("Defendant"), moves this Court for summary judgment in its favor and against Plaintiffs, R.F., a minor child, and her parents (collectively, "Plaintiffs"),1 ("Defendant's Motion") (ECF No. 30). Defendant seeks a ruling from the Court that Plaintiffs cannot prevail on their claims for deprivation of a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA") and disability discrimination under § 504 of the Rehabilitation Act of 1973 ("§ 504"). Plaintiffs filed an opposition to Defendant's Motion and cross-motion for summary judgment ("Plaintiffs' Cross-Motion) (ECF No. 31).
After considering the motions and responses thereto (ECF Nos. 32 & 35), the Court finds that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2016). In addition, having reviewed the pleadings of record and all competent and admissible evidence submitted by the parties, the Court finds that there is no genuine issue of material fact as to the claims asserted and that there is insufficient evidence from which a jury could find in Plaintiffs' favor on the deprivation of aFAPE and disability discrimination claims. Accordingly, the Court will GRANT Defendant's Motion (ECF No. 30) and DENY Plaintiffs' Cross-Motion (ECF No. 31).
This lawsuit arises out of Plaintiffs' allegations that Defendant failed to offer R. a FAPE under IDEA for the 2016-2017 school year and discriminated against R. based on her disability in violation of § 504. Plaintiffs further asserted that the Administrative Law Judge ("ALJ") who presided over R.'s due process hearing erroneously applied the law, erred in her factual findings, and erred in determining that Defendant had offered R. a FAPE for the 2016-2017 school year. The facts are viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Here, both parties rely upon the factual findings laid out in the administrative decision issued on May 3, 2017, except to the extent that such factual findings state or incorporate legal findings. See ECF Nos. 30-1 at 5 & 31-1 at 12.
R. was born on June 15, 2009 and, thus, at the time of the administrative decision, R. was a seven-year-old girl. ECF No. 30-2 at 4; see ECF No. 31 at 1. In 2013, R. was diagnosed with a genetic disorder related to mutation in the HIVEP2 gene, an extremely rare condition with unknown long-term consequences, including those related to learning to perform activities of daily living, processing information, and understanding and expressing language. ECF No. 30-2 at 4. In March 2016, R. was diagnosed with severe autism spectrum disorder at one of the most intensive levels. Id. R. has also been diagnosed with several other disorders, including, inter alia, global developmental delay and an intellectual disability. Id. She exhibits complex, challenging, disruptive behaviors, including hyperactivity and impulsivity which are difficult to control even with medication as well as grabbing people, pulling hair, biting, and placing hermouth on others without biting down. Id. at 5. R. is nonverbal in that she does not regularly use words to communicate and expresses no recognizable speech other than "Mommy," which she sometimes uses toward her mother. Id. at 4-6. R. also has significant neuromuscular deficits, including hypotonia. Id. at 5. R. requires adult supervision and assistance at all times, including when toileting, washing her hands, and managing her clothes. Id.
R. was identified as a student qualifying for special education and related services and began receiving services through the Maryland State Department of Education's ("MSDE") Infants and Toddlers program when she was two years old under the primary disability of "developmental delay." Id. at 6-7. From 2012 to 2013, R. attended a part-day preschool. ECF No. 31-1 at 8.
Defendant developed R.'s first individualized education program ("IEP") on June 4, 2014. ECF No. 30-2 at 6. During the 2014-2015 school year, R. attended half-day kindergarten and Defendant provided her with speech and language, occupational, and physical therapy. Id. The majority of R.'s educational program was in general education classes. Defendant further provided R. with extended school year ("ESY") services during the summer of 2015. Id.
In May 2015, R.'s IEP was approved after an IEP team meeting. Id. The May 2015 IEP identified R. as a student with the primary disability of developmental delay and identified the areas affected by her disability as "Early Math Literacy, Reading Comprehension, Speech and Language Expressive and Receptive Language, Behavioral (sensory), and Physical (endurance and gross motor)." Id. at 7. The May 2015 IEP contained goals and objectives in academic, speech and language, physical, and endurance areas. Id.
R.'s IEP was reviewed and revised on July 30, 2015 in order to discuss R's ESY services and the status of her progress since her May 2015 IEP. Id. The IEP team agreed that during the2015-2016 school year, R. should be placed in the regular early childhood education program of full-day kindergarten with the majority of her special education services provided outside of the general education classroom because they could not be provided in the regular classroom. Id. at 7-8. Accordingly, the IEP provided that R. would receive educational services outside of the general education classroom for two and a half hours per week and the rest of the week—twenty-nine hours—she would receive services in the general education setting.2 Id. at 8.
During the 2015-2016 school year, R. had class with twenty-one students and a paraprofessional accompanied her at all times. Id. She received special education and related services pursuant to her IEP. Id. On February 9, 2016, R.'s IEP was revised at an IEP team meeting, which included Mrs. F., R.'s mother, to reduce R.'s IEP Speech and Receptive Language goal. Id. at 8. Also during this meeting, Mrs. F., as well as R.'s physical therapist, occupational therapist, speech language pathologist, and special education teacher, said that R. was making progress toward her annual goals. Id.
In the spring of 2016, Defendant ordered multiple assessments, which revealed, inter alia, that R. performed at an extremely low level and demonstrated clinically significant behaviors in the school setting, including hyperactivity and aggression. Id. at 9, 11. Based on these assessments, the IEP team concluded that R. met the criteria for autism spectrum disorder. Id. at 11. Defendant also retained a psychologist with expertise in students with significant disability and autism to create a model functional behavior assessment ("FBA") and train Defendant's staff to conduct FBAs. Id. at 9. Because R. displayed significant behavior difficulties, Defendant's staff conducted a FBA of R., which indicated that the primary interfering behavior was biting, and, on April 13, 2016, Defendant's staff created a behaviorintervention plan ("BIP") which listed specific steps that school personnel should take to prevent unwanted behaviors as well as steps for behavior intervention. Id. at 9-10.
Defendant shared and discussed the FBA with Mrs. F. at the IEP team meeting on May 25, 2016. Id. at 9, 12. In addition to a medical report dated March 16, 2016, the IEP team considered input from Mrs. F, observations, and the results of several tests and assessments in revising R.'s IEP. Id. at 12. Revisions to R.'s IEP included changing her primary disability from developmental delay to multiple disabilities, including autism, and modifying the academic, behavioral, early learning skills, and physical sections of the IEP. Id. at 12-13. The IEP team also reevaluated R. in the areas of academics, expressive and receptive language, fine motor, gross motor, behavior, and functional behavior. Id. at 13. After reviewing and documenting R.'s present level of academic achievement and behavioral and functional performance, the IEP team included supplementary aids and accommodations in the IEP to enable R. to communicate and access her education, including using a NovaChat device, an assistive technology device for communication, and receiving simple verbal communication, highly engaging visuals, and hands-on tasks and activities from Defendant's staff. Id. at 13-14. In the area of behavior intervention, specifically relating to R.'s biting, hair pulling, lying on the floor, and kicking, the IEP team decided that R.'s BIP would be implemented. Id. at 14. Furthermore, the IEP team concluded that R. did not achieve the goals on her kindergarten IEP. Id. at 15.
Based on the IEP team's discussion and review of the assessments, the team created a fifty-one page IEP containing thirteen goals, each with supporting objectives designed to meet R.'s complex needs as well as specified evaluation methods and a targeted accuracy rate, to address all of R.'s identified special needs. Id. at 16. No social skills, however, were included. Id. The IEP team agreed that, in order to work on her IEP goals, R. would spend three hours andforty-five minutes per week outside the general education setting, five hours per week in the general education setting, thirty minutes twice per week doing occupational therapy, thirty minutes twice a week doing physical therapy, and twenty minutes five times per week doing speech or language therapy. Id. Overall, the IEP team decided that R. would spend a total of fourteen hours and thirty-five minutes per week in the general education setting and sixteen hours and fifty-five minutes per week outside of general education. Id. Mrs. F. disagreed with the goals and objectives and the decision to place R. in one of Defendant's...
To continue reading
Request your trial