S.S. v. Bd. of Educ. of Harford Cnty.

• Citation: 498 F.Supp.3d 761
• Decision Date: 27 October 2020
• Docket Number: Civil Action No. RDB-19-03168
• Parties: S.S., et al., Plaintiffs, v. BOARD OF EDUCATION OF HARFORD COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

498 F.Supp.3d 761

S.S., et al., Plaintiffs,

v.BOARD OF EDUCATION OF HARFORD COUNTY, et al., Defendants.

Civil Action No. RDB-19-03168

United States District Court, D. Maryland.

Signed October 27, 2020

Cheryl Athene Steele Steedman, Wayne Darryl Steedman, Steedman Law, LLC, Lutherville, MD, for Plaintiffs.

Andrew W. Nussbaum, Nussbaum Law LLC, Clarksville, MD, for Defendants.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

Plaintiff S.S., a minor, and her parents (the "Parents") brought this action against the Board of Education of Harford County ("HCPS") and Superintendent of Harford County, Dr. Sean Bulson (the "Defendants") as aggrieved parties from an adverse decision issued by an Administrative Law Judge ("ALJ") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"), and Md. Code Ann., Educ. § 8-401 et seq. Plaintiffs also allege violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq. ("ADA"). (See Compl. 2, ECF No. 2.) S.S. is a student with an Autism

Spectrum Disorder with accompanying intellectual and language impairments, comorbid Attention Deficit Hyperactivity Disorder, Development Coordination Disorder, Unspecified Anxiety Disorder, and congenital heart disease. (Id. at 4.) On January 25, 2019, the Parents filed a Due Process Complaint with the Maryland Office of Administrative Hearings ("OAH") requesting a hearing to review the identification, evaluation, or placement of S.S. by the Defendants under the IDEA. The ALJ issued a decision on June 7, 2019, finding that HCPS did not violate the IDEA (Hr'g Decision at 102), and on October 31, 2019, the Parents removed this matter to this Court with the filing of a Complaint. (ECF No. 2). Pending now before this Court is the Plaintiffs’ Motion for Summary Judgment (ECF No. 33) and Defendants’ Cross Motion for Summary Judgment (ECF No. 36). The parties’ submissions and the administrative record have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). S.S. was denied a free appropriate public education for the 2017-2018 and 2018-2019 school years. Her parents may collect the cost of her placement in a private school for those years and shall be reimbursed for the continued cost of such placement as necessary. For the reasons that follow, the Plaintiffs’ Motion for Summary Judgment (ECF No. 33) is GRANTED as to Count 1 and DENIED as to Counts 2 and 3. The Defendants’ Cross Motion for Summary Judgment (ECF No. 36) is DENIED as to Count 1 and GRANTED as to Counts 2 and 3.

BACKGROUND

I. The Individuals with Disabilities Education Act ("IDEA")

This Court begins with a brief overview of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education ("FAPE") that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A) ; Fry v. Napoleon Cmty. Schs. , ––– U.S. ––––, 137 S. Ct. 743, 748, 197 L.Ed.2d 46 (2017). In exchange for receiving federal funds under the Act, states pledge to comply with a number of statutory conditions.

First, a school district must prepare and implement an appropriate Individualized Education Program ("IEP") for each child determined to be learning disabled. 20 U.S.C. § 1414(d). The United States Supreme Court addressed the standard for determining whether a school has provided an appropriate IEP in Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1 , ––– U.S. ––––, 137 S. Ct. 988, 197 L.Ed.2d 335 (2017). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 999. Creating an IEP is a "fact-intensive exercise," "informed not only by the expertise of school officials, but also by the input of the child's parents or guardians." Id. "Any review of an IEP must appreciate that the question is whether the IEP is reasonable , not whether the court regards it as ideal." Id. The IEP itself "addresses the student's current educational status, annual educational goals, the need for special educational services or other aids necessary to help meet those goals, and whether the child may be educated in regular school classroom with non-disabled students." M.L. v. Smith , No. PX-16-3236, 2018 WL 3756722, at *1 (D. Md. 2018) (citations omitted).

Additionally, a student's FAPE must provide a disabled child with meaningful access to the educational process. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ("[I]n seeking to provide ... access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful."). The Supreme Court in Rowley determined that a school provides a student with FAPE when the IEP provides access to an educational program that confers "some educational benefit" upon the student with a disability. Rowley, 458 U.S. at 200, 102 S.Ct. 3034. To determine whether this standard is met, this Court follows a two-step inquiry. Id. at 206, 102 S.Ct. 3034. First, this Court must determine whether the state or local educational authority complied with the procedures set forth in the Act. Id. Second, this Court must determine whether the IEP was reasonably calculated to enable the child to receive educational benefits. Id. at 207, 102 S.Ct. 3034. As the party challenging the administrative findings, the Plaintiffs bear the burden of proof of establishing a violation of the IDEA. See Barnett v. Fairfax Cnty. Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991), cert. denied, 502 U.S. 859, 112 S.Ct. 175, 116 L.Ed.2d 138 (1991) ; Cavanagh v. Grasmick, 75 F. Supp. 2d 446, 457 (D. Md. 1999).

In addition to providing this "basic floor of opportunity," Rowley , 458 U.S. at 201, 102 S.Ct. 3034, the IEP must place the child in the least restrictive environment ("LRE"), meaning that students with and without disabilities should be educated in the same classroom "to the maximum extent appropriate," 20 U.S.C. § 1412(a)(5)(A). In some cases, however, a general education environment may not be an appropriate placement for a child due to the nature or severity of her disability. 34 C.F.R. § 300.114(a)(2)(ii). In such a case, it is well-established that a FAPE might require placement of the child in a private school with full funding by the public-school district. Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). However, the school district is not required to pay for the student's tuition at private school if it has satisfied its obligation to provide a FAPE for the student. 34 C.F.R. § 300.148(c). Parents may recover the cost of private education only if a court finds both (1) the proposed IEP inadequate in its provision of a FAPE, and (2) the private education services obtained by the parents are appropriate to meet the child's needs. Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (citing Burlington, 471 U.S. at 374, 105 S.Ct. 1996 ).

Additionally, in the face of IDEA violations, courts may "grant such relief as [they] determine is appropriate," 20 U.S.C. § 1415(e)(2). However, in Hall by Hall v. Vance Ctny. Bd. of Educ. , 774 F.2d 629 (4th Cir. 1985), the U.S. Court of Appeals for the Fourth Circuit held that not all forms of relief are appropriate. "While the Act permitted reimbursement, it did ‘not create a private cause of action for damages for educational malpractice.’ " Sellers by Sellers v. Sch. Bd. of City of Mannassas, Va. , 141 F.3d 524, 526 (4th Cir. 1998) (quoting Vance , 774 F.2d at 633 n.3 ). "Tort-like damages are simply inconsistent with the IDEA's statutory scheme." Id. at 527. However, the Fourth Circuit and this Court have held that when a FAPE is not provided to a disabled student, the student's parents may seek an award of "compensatory education." Y.B. v. Bd. of Educ. of Prince George's Cnty. , 895 F. Supp. 2d 689, 693 (D. Md. 2012) (citing G. ex rel. R.G. v. Fort Bragg Dependent Schs. , 324 F.3d 240, 253-54 (4th Cir. 2003)). Such "educational services are ‘ordered by the court to be provided prospectively to compensate for a past deficient program,’ i.e., the school's failure to provide the student with a FAPE." Id. at 693-94.

II. Background

S.S. was born in July 2012 and was diagnosed in 2014 with an Autism

Spectrum Disorder with accompanying intellectual and language impairments, and comorbid Attention Deficit Hyperactivity Disorder, Development Coordination Disorder, Unspecified Anxiety Disorder, and congenital heart disease. (Compl. 4, ECF No. 2.) S.S.’s disabilities impact her receptive, expressive, and pragmatic language skills, and her functional communication. (Id. ) She has also demonstrated atypical sensory processing, limited eye contact and attention, as well as delays in fine motor, feeding, physical, gross motor, and adaptive learning skills. (Id. )

On or about May 19, 2015, an IEP team met to determine whether S.S. was eligible to begin special education services under an IEP. (Hr'g Decision at 10.) At this meeting, the team decided that S.S. would continue early intervention services at HCPS under an individualized family service plan as a child with developmental delays. (Id. ) On September 28, 2016, an IEP team again met and adopted an IEP for S.S. to attend the early learners class at Homestead-Wakefield Elementary School for four one-half days per week. (Id. ) The IEP placed S.S. in a special education classroom and provided for twenty-four hours per month of...