Shaw v. Weast ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1485
RICHARD SHAW; CAROL SHOEMAKER; E. S., a minor, by her
parents and next friends,
Plaintiffs - Appellants,
v.
JERRY D. WEAST, Officially as Superintendent of Montgomery
County Public Schools; MONTGOMERY COUNTY BOARD OF EDUCATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:06-cv-02838-PJM)
Argued: October 29, 2009 Decided: January 26, 2010
Before MOTZ and KING, Circuit Judges, and Anthony J. TRENGA,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael Eig, MICHAEL J. EIG & ASSOCIATES, PC, Chevy
Chase, Maryland, for Appellants. Jeffrey A. Krew, JEFFREY A.
KREW, LLC, Ellicott City, Maryland, for Appellees. ON BRIEF:
Paula A. Rosenstock, MICHAEL J. EIG & ASSOCIATES, PC, Chevy
Chase, Maryland, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In January 2006, following the refusal of the Montgomery
County Board of Education to authorize the placement of their
then minor child, E.S., into a residential school based on her
disabilities, appellants Richard Shaw and Carol Shoemaker
(together with E.S., the “Shaws”), unilaterally enrolled E.S. in
a residential treatment facility in Massachusetts. They then
filed an action under the Individuals with Disabilities
Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq., against
Jerry Weast, Superintendent of the Montgomery County Public
Schools, and the Montgomery County Board of Education
(collectively referred to as “MCPS”), seeking reimbursement for
the cost of that facility, claiming that MCPS violated the IDEA
by denying E.S. a free appropriate public education. The Shaws
appeal the district court’s order granting summary judgment in
favor of MCPS. For the reasons below, we affirm.
I.
A.
Pursuant to the IDEA, a child with disabilities is entitled
to a “free appropriate public education” (“FAPE”) designed by
the child’s school district to meet his or her particular needs.
20 U.S.C. § 1400(d)(1)(A). The FAPE must be “reasonably
calculated to confer some educational benefit on a disabled
2
child.” MM v. Sch. Dist. of Greenville County, 303 F.3d 523,
526 (4th Cir. 2002) (citing Bd. of Educ. v. Rowley, 458 U.S.
176, 207 (1982)). The FAPE must also provide the least
restrictive environment that is appropriate for the child. 20
U.S.C. § 1412(a)(5)(A). The IDEA does not require a school
district to provide a child with the best possible education.
Rowley, 458 U.S. at 192. In other words, though a school
district must offer each student a FAPE, the IDEA does not
require the “furnishing of every special service necessary to
maximize each handicapped child’s potential.” Hartmann v.
Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1997)
(quoting Rowley, 458 U.S. at 199-200).
The IDEA requires that an “IEP Team,” consisting of the
student’s parents, the student’s teacher, a school district
representative, and, where appropriate, the student, develop an
Individualized Educational Program (“IEP”) for the student,
setting forth details on the implementation of the student’s
FAPE. 20 U.S.C. § 1414(d)(1)(B). The IEP contains statements
about the child’s functioning levels, goals, services to be
provided, and criteria for future evaluations of the child’s
progress. Id. at § 1414(d)(1)(A). It is against this backdrop
that the Shaws claim that the IEP that MCPS developed failed to
provide E.S. with a FAPE.
3
B.
E.S. was born in the Philippines in 1985, and was severely
malnourished as a young child. She came to live in an orphanage
there and, at the age of four, was adopted by Richard Shaw and
Carol Shoemaker who brought E.S. to live in Maryland.
E.S. has struggled with severe disabilities throughout her
academic life, including emotional disturbance, hearing
impairment, speech and language impairment, and learning
disabilities. E.S. has also been diagnosed with bipolar
disorder, clinical depression, and post traumatic stress
disorder, stemming from an alleged unwanted sexual encounter.
In the middle of seventh grade, E.S. experienced increased
social and emotional issues, including suicidal tendencies and
clinical depression. E.S.’s IEP Team determined that the least
restrictive environment for E.S. was a full-time, non-public,
special education day school. Accordingly, at the start of her
eighth grade year, E.S. began at the Foundation School
(“Foundation”), a private special education day school.
During her first few years at Foundation, E.S. was able to
complete over twenty credits. During the 2003-2004 school year,
however, E.S. began to struggle with a number of issues,
including depression and loss, and was hospitalized for a period
of time during the school year for suicidal ideations. On April
30, 2004, E.S.’s IEP Team met to develop an IEP for the 2004-
4
2005 academic year, taking into account E.S.’s recent problems.
The IEP Team identified a number of objectives for E.S. to
address her audiological, emotional, academic, and other needs,
and the IEP Team agreed that the least restrictive environment
where E.S.’s IEP could be implemented remained at a private
separate day school. Accordingly, they determined that E.S.
would continue at Foundation for the 2004-2005 academic year.
E.S.’s condition deteriorated during the 2004-2005 school
year. During an especially troubling incident in mid-October,
E.S. became agitated and began to engage in self-mutilating acts
while at school and had to be physically restrained. As a
result of that incident, a functional behavior assessment
(“FBA”) was conducted. The FBA results showed that E.S. had
become “increasingly oppositional with staff” and more
disrespectful, and that she continued to engage in self-
mutilation at school. JA 1099. The FBA also indicated that
E.S. “had difficulty remaining physically safe in situations at
school and at home.” Id. On November 5, 2004, E.S.’s IEP Team
met to address the issues identified in the FBA and developed a
plan to address some of E.S.’s behavioral problems. 1
Notwithstanding the implementation of the plan, by December of
1
The plan also addressed E.S.’s hearing issues, but E.S.
did not consistently use the resources provided to her, nor did
she consistently wear hearing aids or replace the batteries in
her hearing aids while at Foundation.
5
that year, E.S.’s interim progress report showed that she was in
danger of failing four classes, two of which were graduation
requirements.
In April 2005, E.S. was hospitalized. She was released
from the hospital on April 30, 2005, but did not return to
Foundation for the remainder of the school year. After her
April hospitalization, E.S.’s IEP Team met a number of times to
determine the proper placement for E.S. for the 2005-2006
academic year. During one of those meetings, E.S. expressed a
desire not to return to Foundation. By September 2005, E.S.’s
psychiatrist, Dr. Michal Potash, recommended that E.S. be placed
in a twenty-four hour care facility. E.S.’s parents also
submitted a recommendation by Dr. William Stixrud, Ph.D.,
another psychologist, stating that E.S. might be able to benefit
from placement in a residential facility.
On September 13, 2005, E.S.’s IEP Team again convened to
discuss whether E.S. required placement at a residential
facility or whether a private separate day school would satisfy
the IDEA. The MCPS staff contended at that meeting that E.S.
could continue at a private separate day school, since her
issues were mainly mental-health related, improvable by
medication. The IEP Team agreed at that meeting that Foundation
would continue as E.S.’s interim placement. Shortly after this
meeting, an MCPS School Psychologist, Marcia Gustafson, M.Ed.,
6
conducted a review of Dr. Stixrud’s assessment of E.S. Based on
her review, Dr. Gustafson concluded that E.S. should be placed
in a therapeutic school setting for students with serious
emotional issues. Dr. Gustafson also concluded, however, that a
residential placement was not necessary to further E.S.’s
education, though it might be necessary to address E.S.’s mental
health issues.
On October 17, 2005, E.S.’s IEP Team met once again to
review E.S.’s IEP and placement. The Team revised E.S.’s IEP to
include a number of new accommodations and objectives. None of
these goals and objectives required implementation beyond the
school day and the MCPS IEP team members determined that a
private separate day school was still the least restrictive
environment where E.S. could receive a FAPE. During the
meeting, the IEP Team also discussed the Shaws’ request for a
residential placement for E.S. While the MCPS team members did
not agree that a residential placement was necessary, all
parties agreed that there would be a change in E.S.’s school
placement, to address E.S.’s request that she no longer attend
Foundation. MCPS identified three alternative private separate
day schools for E.S.: the Lodge School, Oakmont School, and
Pathways School.
On October 19, 2005, MCPS personnel corresponded with the
three potential schools regarding whether or not they could
7
implement E.S.’s IEP. On October 20, 2005, E.S. returned to
Foundation. Approximately a week later, the Pathways School and
Lodge School informed the Shaws that they could not implement
E.S.’s IEP. During the first week of November, Oakmont School
informed the Shaws that it could implement E.S.’s IEP. 2
On November 4, 2005, the Shaws notified MCPS that E.S.
would not attend a day school and requested that MCPS provide a
residential placement. Around the same time, E.S. again began
to engage in self-mutilation and tried to kill herself by
walking in front of traffic. Shortly thereafter, E.S. stopped
attending Foundation. E.S.’s parents requested that the IEP
Team re-convene, but MCPS would not comply, citing a lack of any
new information from the Shaws since the October IEP Team
meeting a month earlier. In December, E.S. again tried to kill
herself, this time by cutting herself, and was hospitalized for
psychiatric treatment.
On December 29, 2005, at E.S.’s parents’ request, Dr.
Vincent Cullotta conducted a private neuropsychological
consultation, and recommended, based on his consultation, that
E.S. be placed in a therapeutic residential environment, which
would lessen the risk for E.S. to harm herself or others and
2
The Shaws learned some time in the beginning of 2006 that
Oakmont School would close in March of that year.
8
also allow E.S.’s medication usage to be monitored 24 hours a
day.
On January 3, 2006, E.S.’s parents enrolled E.S. at F.L.
Chamberlain School (“Chamberlain”), a residential treatment
facility in Massachusetts. At Chamberlain, E.S. continued to
attend classes and received clinical therapy during the school
day, as well as additional support outside of the school day.
The additional support included waking E.S. up and getting her
to class, ensuring that E.S. ate proper meals, and ensuring that
E.S. maintained proper hygiene.
On March 13, 2006, exercising their right under 20 U.S.C. §
1415(f), the Shaws requested mediation and a due process
hearing, seeking reimbursement for the cost of sending E.S. to
Chamberlain. After an unsuccessful session on March 24, 2006,
MCPS transmitted the request for a mediation and hearing to the
Office of Administrative Hearings. On May 18, 2006,
Administrative Law Judge Jerome Woods, II (the “ALJ”), presided
over a hearing between the parties in Rockville, Maryland. The
hearing took place over five days, ending on June 20, 2006.
On July 18, 2006, the ALJ concluded that the Shaws failed
to establish that E.S.’s placement at Foundation did not provide
a FAPE in the least restrictive environment and that they failed
to establish that E.S. did not receive educational benefits
during her placement at Foundation. The Shaws filed this
9
lawsuit, appealing the ALJ’s decision. 3 On March 31, 2008, the
district court granted summary judgment for MCPS.
II.
A.
This Court’s standard of review in an IDEA case such as
this varies somewhat from the de novo review generally
applicable to an award of summary judgment. The standard of
review in an IDEA case is a “modified” de novo review, where
“due weight” is given to the underlying administrative
proceedings. MM, 303 F.3d at 530-531; Doyle v. Arlington County
Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991). In connection with
that review, the findings of fact from the administrative
hearing are considered to be prima facie correct; and if the
reviewing court does not adhere to those findings of fact, “it
is obliged to explain why.” MM, 303 F.3d at 531. Nevertheless,
the reviewing court should not substitute its own knowledge
about education policy for the school district’s. Id.Accordingly, in our review, we examine the entire record,
affording “due weight” to the administrative findings.
3
A party aggrieved by the decision and findings of a due
process hearing may bring a civil action in federal court. 20
U.S.C. § 1415(i)(2).
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B.
This case presents two issues on appeal: (1) whether E.S.’s
IEP was legally deficient on its face because of its apparent
failure to name a specific permanent placement for E.S. and (2)
whether the ALJ and district court properly concluded that a
private day school provided E.S. with a FAPE and that E.S. did
not require a residential placement under the IDEA.
1.
The Shaws argue that the IEP developed in October 2005 was
deficient as a matter of law because it failed to name a
specific placement for E.S. This argument fails. The IEP
unambiguously states that Foundation would serve as E.S.’s
interim placement while the Shaws explored the three other day
schools proposed by MCPS. MCPS provided these additional
private day placement options, not because Foundation could not
implement E.S.’s IEP, but as an attempt to accommodate E.S.’s
request to change schools. At no time during the 2005-2006
academic year was E.S. without an assigned school, such that the
Shaws were required to “fend for themselves.” Foundation, the
school indicated in the IEP, provided all the necessary services
listed in E.S.’s IEP.
For all of these reasons, this case present a situation far
different than that addressed in A.K. v. Alexandria City Sch.
Bd., 484 F.3d 672 (4th Cir. 2007). In A.K., the student, who
11
suffered from a nonverbal learning disability, as well as
Aspergers Syndrome and obsessive compulsive disorder, was
attending a residential program, pursuant to a settlement
between the student’s parents and the school system. Id. at
675-676. At the close of the school year, at an IEP team
meeting about the following academic year, the school system
declared that the student should be removed from his residential
placement and placed in a private day school for the upcoming
school year. Id. at 676. No specific school was listed on the
IEP or discussed in detail at the meeting. During the summer,
the school system sent out applications to five private day
schools on behalf of the student. Two of the schools indicated
that they could not implement the student’s IEP. A third school
did not have room for the student. Id. The parents toured and
researched the remaining two schools and concluded that neither
could adequately provide the student with a FAPE. Id. at 677.
We concluded in that case that the student’s IEP failed to
identify a particular school and was therefore not reasonably
calculated to enable the student to receive educational
benefits. While the parents agreed that an appropriate private
day school could have provided their child with a FAPE, the IEP
failed to present such a placement. “[T]he IEP development
process concluded without any significant discussion of whether
such a school existed, or if it did, how it would be a
12
satisfactory match for A.K.” Id. at 681. Because of this, “the
parents were left to fend for themselves to determine whether
any private day school in their area . . . would be a
satisfactory fit.” Id.Here, MCPS made a referral to three therapeutic day school
programs and while these alternatives were being explored, as
the IEP clearly states, E.S. would continue at Foundation, a
school that MCPS believed could implement E.S.’s IEP, that was
clearly listed in the IEP, and that had been E.S.’s school for
years and the subject of multiple IEP Team meetings.
Accordingly, E.S.’s parents were never left to “fend for
themselves,” as the parents in A.K. were, and the IEP’s
designation of “Foundation” as E.S.’s placement, even though it
was listed as “interim,” was sufficient to satisfy the IDEA
under the facts of this case.
2.
We next turn to the merits of the Shaws’ argument that
placement at a private day school could not have provided E.S.
with a FAPE and that a residential placement was necessary for
E.S. MCPS argues that Foundation provided E.S. with a FAPE and
that a residential school was required only to address E.S.’s
mental and emotional health issues. Based on the record before
us, we agree with MCPS.
13
The state may be required in certain cases to fund
residential placements. “If the educational benefits which can
be provided through residential care are essential for the child
to make any educational progress at all, then residential care
is required under the EHA [the precursor to the IDEA].” Burke
County Bd. of Educ. v. Denton, 895 F.2d 973, 980 (4th Cir. 1990)
(emphasis in original). However, the IDEA “does not authorize
residential care merely to enhance an otherwise sufficient day
program.” Id. (quoting Abrahamson v. Hershman, 701 F.2d 223,
227 (1st Cir. 1983) (emphasis in original)). “If residential
placement is necessitated by medical, social, or emotional
problems that are segregable from the learning process, then the
local education agency need not fund the residential placement.”
Id. at 980. See also Clovis Unified Sch. Dist. v. California
Office of Admin. Hearings, 903 F.2d 635 (9th Cir. 1990) (finding
student’s hospitalization was primarily for medical and
psychiatric reasons and the state was therefore not required to
fund it).
Kruelle v. New Castle County Sch. Dist., 642 F.2d 687 (3d
Cir. 1981) presents appropriate circumstances under which a
residential placement may be necessary. Burke County Bd. of
Educ., 895 F.2d at 980 (adopting the standard articulated in
Kruelle). In Kruelle, a mentally retarded child who was unable
to speak and not toilet trained was found to need extensive
14
around the clock care as part of his FAPE. “[T]he concept of
education is necessarily broad with respect to persons such as
Paul. ‘Where basic self-help and social skills such as toilet
training, dressing, feeding and communication are lacking,
formal education begins at that point.’” Id. at 693 (quoting
Battle v. Commonwealth of Pennsylvania, 629 F.2d 269, 275 (3d
Cir. 1980)). See also Abrahamson, 701 F.2d at 228 (holding that
only residential treatment could provide a FAPE where the
student could not eat, dress, go to the bathroom, or care for
himself in any way).
While Kruelle presents a compelling set of circumstances,
and residential placement may be required where a student’s
medical needs and educational needs are less clearly unitary,
this case presents facts near the other end of the spectrum.
The Shaws’ decision to place E.S. in a residential treatment
facility was based on their desire to ensure E.S. did not hurt
herself, that she took her medicine, and that she was in a safe
environment. The ALJ found based on all of the evidence that
E.S.’s parents’ “demand for residential placement in this case,
is primarily to address the safety needs of the Student as a
result of her mental health issues and not her educational
needs.” JA 1396. Based on an independent review of the record,
we agree that the treatment of E.S.’s mental health and safety
issues was distinct and segregable from her educational needs.
15
We also find that Foundation provided E.S. with a FAPE.
E.S. earned over twenty credits during her time there and, as of
December 2004, was passing Art, Physical Education, and Consumer
Math. Further, Foundation offered E.S. resources to address her
audiological issues, although E.S. did not always elect to use
those resources. While E.S.’s educational progress was slowed
during her psychiatric episodes, the record is clear that during
periods when E.S.’s mental health issues were stabilized, her
education progressed.
Though E.S.’s story is tragic, we must conclude that she
possesses the basic self-help and social skills that the student
in Kruelle lacked and sufficient abilities to proceed in her
studies in the less restrictive environment of a private day
school such as Foundation. It is undisputed that E.S. did not
want to continue at Foundation and that MCPS hoped to comply
with her wish to attend another school, but the record also
supports the ALJ and district court’s conclusion that Foundation
continued to offer the services and resources necessary to
implement E.S.’s IEP and that E.S. received some educational
benefit there. That E.S.’s emotional and mental needs required
a certain level of care beyond that provided at Foundation does
not necessitate a finding that the state should fund that extra
care when it can adequately address her educational needs
separately.
16
III.
Because the IDEA requires the provision of “the least
restrictive environment” where a student can access a free
appropriate public education, and because the Court finds that
Foundation offered such an environment, the Court affirms the
district court’s grant of summary judgment for MCPS.
AFFIRMED
17