Wagner v. Board of Educ. of Montgomery County, Md.

• Decision Date: 25 April 2002
• Docket Number: No. CIV.A.DKC 2002-0763.,CIV.A.DKC 2002-0763.
• Citation: 198 F.Supp.2d 671
• Parties: Daniel G. WAGNER, Jr., et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY, MARYLAND, et al.
• Court: U.S. District Court — District of Maryland

Page 671

198 F.Supp.2d 671

Daniel G. WAGNER, Jr., et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY, MARYLAND, et al.

No. CIV.A.DKC 2002-0763.

United States District Court, D. Maryland.

April 25, 2002.

Kerry Lynn Edwrds, Nick S. Williams, Mayer Brown Rowe and Maw, Washington, DC, for Regina Wagner.

Jeffrey A. Krew, Columbia, MD, for Board of Educ. of Montgomery County, Montgomery County Public Schools, Jerry D. Weast.

Wayne Darryl Steedman, Callegary & Steedman, PA, Baltimore, MD, for Christine Caselles.

MEMORANDUM OPINION

CHASANOW, District Judge.

Daniel Wagner, an autistic child who is now six years old, was without educational services for over four months despite the existence of an Independent Educational Plan ("IEP") that provided for the County to provide 30 hours of in home applied behavioral analysis ("ABA"). The reasons for this unfortunate situation are complex and the remedy has proven elusive. Nevertheless, based on the evidence presented over two days of hearing in this court (and review of evidence presented during a lengthy ongoing due process proceeding) and the court's interpretation of the applicable law, I conclude that the County has failed to provide an acceptable "stay put" placement and will be ordered to propose a new alternative promptly. I will not, however, order that the Autism Learning Center be the "stay put" placement or direct the County to reimburse the Wagners for those services at this time.

I. Statutory Framework

The Individuals with Disabilities Education Act ("IDEA"), known originally as the Education of the Handicapped Act, was enacted in order "to assure that all children with disabilities have available to them ... a free appropriate public education [(`FAPE')] which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(c). To accomplish this objective, the IDEA provides federal money to state and local educational agencies that undertake to implement its requirements. School Comm. of the Town of Burlington v. Department of Educ., 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), citing Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To be eligible for federal funding, states and local agencies are required to comply with federal guidelines and regulations established to ensure the availability of a FAPE for all of their disabled children. 20 U.S.C. § 1412.

In order to achieve a FAPE, "[f]or each such child, school boards must develop an Individual Educational Plan (`IEP') reasonably calculated to enable the child to receive `educational benefits.'" Stockton v. Barbour County Bd. of Educ., 884 F.Supp. 201, 205 (N.D.W.Va.1995), aff'd, 112 F.3d 510, 1997 WL 225483 (4th Cir. 1997) (unpublished), quoting Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). "A school system does not `discharge its duty under the Act by providing some minimal academic achievement', no matter how trivial." Id., quoting Hall, ex rel. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.1985).

The state and local agencies are required to comply not only with the substantive requirements of the IDEA, but also the elaborate system of "procedural safeguards" that the IDEA extends to children with disabilities and their parents. These procedural safeguards are meant to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think are inappropriate." Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).

Among the procedural safeguards that a state must provide parents is the opportunity to convene "an impartial due process hearing," to resolve their complaints. See 20 U.S.C. § 1415(b)(2). Maryland has provided for such hearings to be provided through the Office of Administrative Hearings ("OAH"). As an important adjunct to the safeguard provided by the due process hearing, during the pendency of the hearing or "when judicial review of the findings of the due process officer is sought pursuant to U.S.C. § 1415, a `stay put' provision is invoked, requiring that the child remain in his current educational placement until all such proceedings are completed." Stockton, 884 F.Supp. at 205.

The "stay-put" provision of the IDEA is 20 U.S.C. § 1415(j), which states:

Except as provided in subsection (k)(7) of this section, during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

This provision, "represents Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is resolved." Drinker v. Colonial School Dist., 78 F.3d 859, 864-65 (3rd Cir.1996). This "`stay-put' provision affords an `automatic' preliminary injunction to maintain the child's placement, eliminating the need for parents to make the usual showing required for obtaining preliminary injunctive relief." Board of Educ. Of Montgomery County v. Brett Y., 959 F.Supp. 705, 709 (D.Md.1997), citing Honig, 484 U.S. at 326, 108 S.Ct. 592.

When the current placement is unavailable in order to comply with the "stay put" provisions, the county is obligated to provide an alternative placement that is a comparable program, capable of implementing an IEP that does not constitute a change in placement. "The IDEA does not define what constitutes a `change in placement'" Cavanagh v. Grasmick, 75 F.Supp.2d 446, 466 (D.Md.1999), citing Honig v. Doe, 484 U.S. 305, 326, 108 S.Ct. 592 (1988). Neither the Supreme Court nor the Fourth Circuit has specifically reached this issue. Despite some discrepancies, certain generally consistent principles have emerged from cases in a number of other circuits. "[A] fundamental change in, or elimination of a basic element of, the education program, which adversely affects the child's learning experience in a significant way, is what constitutes a `change in education placement' for purposes of the IDEA." Cavanagh, 75 F.Supp.2d at 469; see also Board of Educ. Of Comm. High School Dist. No. 218, Cook County v. Illinois State Bd. of Educ., 103 F.3d 545, 549 (7th Cir.1996) (adopting "fact-driven approach" of sister circuits); Tennessee Dep't of Mental Health and Mental Retardation v. Paul B., 88 F.3d 1466, 1474 (6th Cir.1996); Sherri, A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir.1992); DeLeon v. Susquehanna Comm. School Dist., 747 F.2d 149, 152 (3rd Cir.1984); Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1582 (D.C.Cir.1984).

In Cavanagh, the court fleshed out what constitutes a "fundamental" change to a basic element of the placement with reference to U.S. Dept. of Educ., Office of Special Education Programs (OSEP), Policy Letter to Fisher, 21 IDELR 992, 995 (April 18, 1994). Cf. Honig, 484 U.S. 305, 326 n. 8, 108 S.Ct. 592. In that letter, OSEP concluded that whether a change in education placement has occurred turns on "whether the proposed change would substantially or materially alter the child's educational program." Policy letter, 21 IDELR at 995. According to that letter, the court should consider:

(a) whether the educational program set out in the child's IEP has been revised; (b) whether the child will be able to be educated with non-disabled children to the same extent; (c) whether the child will have the same opportunities to participate in non-academic and extracurricular services; and (d) whether the new placement option is the same option on the same continuum of alternative placements.

Cavanagh, 75 F.Supp.2d at 468; see also Henry v. School Administrative Unit # 29, 70 F.Supp.2d 52, 59 (D.N.H.1999)(analyzing "stay out" claim under OSEP guidelines).

II. Background

Daniel Wagner turned six years old on January 19, 2002. For the year, July 2, 2001-June 30, 2002, he was receiving special education services based on an IEP agreed to by all parties at a meeting held on March 8, 2001. Daniel was to receive 30 hours of ABA discrete trial instruction, on a 12 month schedule, with occupational therapy on a consultation basis, at a separate Special Education Day School, and was assigned to the Intensive Early Intervention Program at Community Services for Autistic Adults and Children (CSAAC.)

This Lovaas-based¹ applied behavioral analysis one-on-one discrete trial instruction was provided in Daniel's home. Therapists hired and trained by CSAAC came to the Wagner's home, where a separate therapy room had been set up, daily. In addition, the Wagners had arranged for Daniel to continue for another year at preschool and a "shadow" took him to school several days a week for the regular nursery school program.

By October or November, problems were apparent in the relationship between the Wagners and some of the personnel at CSAAC. On November 14, 2001, CSAAC ceased sending people to the Wagner home.

In response to the then apparent unavailability of CSAAC, the County proposed a new IEP at a meeting held November 28, 2001. The proposed IEP contemplated provision of services at Maryvale Elementary School. The Wagners agreed to explore that proposal, and also continued to explore other options with other Lovaas providers, to some extent at the suggestion of and with the blessing of County.

By January, 2002, the Wagners determined not to accept the Maryvale proposal and they initiated due process proceedings. At that point, all agree that the "stay put" provision of the IDEA became operative. The County...