Pollowitz v. Weast

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL POLLOWITZ; SHARON 

BROWN,

Plaintiffs-Appellants,

and

ANDREW POLLOWITZ, a minor, by his

parents and next friends, Michael

Pollowitz & Sharon Brown,

Plaintiff,  No. 00-1690

v.

JERRY D. WEAST, (officially as),

Superintendent, 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.

Frederic N. Smalkin, District Judge.

(CA-99-3118-S)

Argued: March 1, 2001

Decided: April 17, 2001

Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

2 POLLOWITZ v. WEAST

COUNSEL

ARGUED: Michael Jeffrey Eig, MICHAEL J. EIG & ASSO-

CIATES, P.C., Washington, D.C., for Appellants. Eric Charles Brous-

aides, REESE & CARNEY, L.L.P., Columbia, Maryland, for

Appellees. ON BRIEF: Haylie M. Iseman, MICHAEL J. EIG &

ASSOCIATES, P.C., Washington, D.C., for Appellants.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

In this action arising under the Individuals with Disabilities Educa-

tion Act (IDEA), see 20 U.S.C.A. § 1400-1487 (West 2000), Andrew

Pollowitz, by and through his parents Michael Pollowitz and Sharon

Brown ("the Parents"), appeals an order of the district court granting

summary judgment in favor of the Montgomery County, Maryland,

Board of Education and its superintendent (collectively, "MCPS"), in

the Parents’ action for reimbursement of Andrew’s private school

tuition. Finding no error, we affirm.

I.

A.

The IDEA is designed "to ensure that all children with disabilities

have available to them a free appropriate public education that

emphasizes special education and related services designed to meet

their unique needs and prepare them for employment and independent

living." Id. § 1400(d)(1)(A). See generally id. § 1400(c), (d) (describ-

ing need for, and purposes of, the IDEA). A state may qualify for fed-

eral funds under the IDEA by adopting "policies and procedures to

ensure that it meets" several enumerated conditions. Id. § 1412(a).

POLLOWITZ v. WEAST 3

Some of these conditions are as follows. All eligible children must

be provided a "free appropriate public education" (FAPE). Id.

§ 1412(a)(1). Education agencies and intermediate educational units

must develop an "individualized education program" (IEP) for each

eligible child before the beginning of each school year. Id.

§ 1412(a)(4). A local educational agency will pay for a child’s private

school tuition when the child is placed in, or referred to, such a school

by the State or the local agency as a means of complying with its legal

obligations. See id. § 1412(a)(10)(B)(i). And, when a parent places a

child into private school unilaterally, a court or hearing officer may

require reimbursement by the agency if "the agency had not made a

[FAPE] available to the child in a timely manner." See id.

§ 1412(a)(10)(C)(ii). However,

[t]he cost of reimbursement . . . may be . . . denied—

(I) if—

(aa) at the most recent IEP meeting that the parents

attended prior to removal of the child from the

public school, the parents did not inform the IEP

Team that they were rejecting the placement pro-

posed by the public agency to provide a free

appropriate public education to their child, includ-

ing stating their concerns and their intent to enroll

their child in a private school at public expense; or

(bb) 10 business days (including any holidays that

occur on a business day) prior to the removal of

the child from the public school, the parents did

not give written notice to the public agency of the

information described in division (aa)[.]

Id. § 1412(a)(10)(C)(iii). State law shall excuse a failure to give such

notice if the parents are not informed of the notice requirement. See

id. § 1412(a)(10)(C)(iv)(IV).

As a participating state, Maryland has enacted laws designed to sat-

isfy the IDEA conditions. A provision of the Maryland Code states

in pertinent part:

4 POLLOWITZ v. WEAST

(a) Basis for placement. — A child with a disability who

needs special education and related services that cannot be

provided in a public county, regional, or State program shall

be placed in an appropriate nonpublic educational program

that offers these services.

(b) Payment of cost — In general. — The cost of the non-

public educational program shall be paid by the State and

the county in which the child is domiciled in accordance

with § 8-415(d) of this subtitle, as appropriate.

Md. Code Ann., Educ. § 8-406 (1999). Of particular relevance here

is Md. Code Ann., Educ. § 8-413(i)(1) (1999), which provides in per-

tinent part that when a parent enrolls a child in nonpublic school with-

out referral by, or consent from, the local school system, the county

"is not required" to reimburse the parent for costs associated with that

enrollment if the parent does not provide the county with sufficient

prior written notice of that enrollment. To be sufficient, the notice

must "reject[ ] the program proposed by the county board, includ[e]

the reason for the rejection, and stat[e] an intention to enroll the stu-

dent in a nonpublic school." Md. Code Ann., Educ. § 8-413(i)(1).

B.

Andrew is a "child with a disability" as defined by the IDEA. See

20 U.S.C.A. § 1401(3)(A). Andrew was born on August 18, 1992 and

was found eligible for special education services under the IDEA in

February 1996. The Parents approved IEPs for public school educa-

tion for Andrew for the remainder of the 1995-96 school year, and for

the 1996-97 and 1997-98 school years.

The Parents attended a meeting to shape an appropriate IEP for

1998-99 on March 23, 1998 and agreed to the IEP proposed for that

year. However, unbeknownst to MCPS, the Parents had already

applied to the nonpublic Lab School for the 1998-99 school year, and

Andrew was accepted on May 19, 1998. By June 2, 1998, the parents

had signed an "Enrollment Contract" for the upcoming school year

and paid a $10,000 deposit.

POLLOWITZ v. WEAST 5

On June 29, 1998, the Parents’ attorney sent a letter to the principal

of Kensington Parkwood Elementary, the public school that Andrew

had been attending. The letter states:

We have been retained to represent the above-referenced

student by his parents, Dr. Sharon Brown and Dr. Michael

Pollowitz, in their efforts to procure appropriate special edu-

cation services from Montgomery County Public Schools.

As you are aware, Andrew’s parents attended an [IEP] meet-

ing at your school on March 23, 1998, and at that time

approved a placement proposal for a "Level 4 Language

Class." They also expressed a number of reservations about

Andrew’s education.

Since that meeting, our clients have explored other place-

ment options for Andrew and have procured his placement

into The Lab School of Washington for the coming year.

The[y] intend to place Andrew there and are requesting that

MCPS consider supporting that placement. They also have

procured additional assessments, copies of which are

enclosed, in support of their request.

Please refer this matter to the Central Placement Unit for

consideration of the new assessments and the family’s

request for consideration of Lab School as a placement for

Andrew.

J.A. 97. Enclosed with the letter were two private evaluations of

Andrew.

As a result of the letter, MCPS scheduled a meeting with the Par-

ents for August 14, 1998 to discuss the new evaluations. The Parents

subsequently rescheduled the meeting for September 23 because of

existing vacation plans. The Parents also forwarded another evalua-

tion to MCPS for its review. At the September 23 meeting, MCPS

continued to recommend placement at Kensington Parkwood. The

Parents did not agree to this IEP, however, and Andrew attended the

Lab School for that year.

6 POLLOWITZ v. WEAST

On June 9, 1999, as the 1998-99 school year was concluding, the

Parents requested an administrative hearing seeking tuition reim-

bursement for their enrollment of Andrew at the Lab School for the

1998-99 school year. On June 22, seven days prior to the first day of

the hearing, MCPS moved to dismiss, contending that the request for

tuition reimbursement should be denied because of the Parents’ fail-

ure to provide prior notice of their rejection of the proposed IEP in

accordance with 20 U.S.C.A. § 1412(a)(10)(C)(iii) and Md. Code

Ann., Educ. § 8-413(i)(1). The parents subsequently filed a written

opposition to the motion.

The administrative law judge (ALJ) granted the motion to dismiss,

deciding, as is relevant here, that (1) MCPS’s motion to dismiss could

be considered even though it was filed late; (2) the Parents did not

comply with § 8-413(i)(1);1 (3) the Parents’ noncompliance barred

their reimbursement claim regardless of whether MCPS was preju-

diced by the noncompliance; and (4) the Parents received a parental

rights booklet (notifying them of the notice requirements) from

MCPS as recently as the March 23, 1998 meeting.

The Parents then initiated this action in federal district court, seek-

ing primarily reimbursement for the tuition expenses and costs

incurred in relation to Andrew’s enrollment in the Lab School for the

1998-99 school year. The district court granted summary judgment to

MCPS, ruling that (1) the ALJ did not err in considering the tardy

motion to dismiss; (2) the Parents failed to provide timely notice of

their rejection of the proposed IEP; (3) MCPS was prejudiced by the

Parents’ failure to provide timely notice; and (4) MCPS had no duty

either to provide additional notice to the Parents of the applicable

notice provisions after receiving the June letter or to explain to the

Parents the meaning of the relevant notice provisions. The court also

ruled that the ALJ did not improperly place a burden of proof on the

1

The Parents had contended that § 8-413(i)(1) was preempted because

the IDEA required participating states to allow parents to give either oral

or written notice of their rejection of the proposed plan, while § 8-

413(i)(1) allows only written notice. The ALJ found that § 8-413(i)(1)

was not preempted and that the Parents failed to provide oral notice of

their rejection of the proposed plan at the March 23, 1998 IEP meeting.

POLLOWITZ v. WEAST 7

Parents, and the court refused the Parents’ request to disregard the

procedural grounds upon which the ALJ’s decision was based.

II.

We review a grant of summary judgment de novo, viewing the dis-

puted facts in the light most favorable to the Parents. See Figgie Int’l,

Inc. v. Destileria Serralles, Inc., 190 F.3d 252, 255 (4th Cir. 1999).

Summary judgment is appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any mate-

rial fact and that the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c).

A.

The Parents first maintain that the district court erred in holding

that the ALJ properly considered MCPS’s written motion to dismiss.

The Parents contend that at the time of their hearing before the ALJ,

Maryland regulation provided that written motions "[b]e filed not

later than 15 days before the date of the hearing," Md. Regs. Code tit.

28, § 28.02.01.16(A)(3)(a) (Supp. 1994), and that the written motion

here was filed only seven days prior to the hearing. However, a Mary-

land regulation provides that a "judge has the authority and duty to

. . . [m]odify or waive, reasonably, any time periods established by

this chapter." Md. Regs. Code tit. 28, § 28.02.01.08(A)(4) (Supp.

1994). The Parents did not and do not maintain that they did not have

sufficient time to prepare a response. Accordingly, the ALJ did not

abuse her discretion in considering the motion.

B.

The Parents next contend that the district court erred in concluding

that they did not provide timely notice of Andrew’s enrollment in the

Lab School. We conclude that the Parents have waived the issue.

The ruling of the district court that the Parents failed to present

timely notice of Andrew’s enrollment was based on the following

analysis. With regard to oral notice, the district court ruled that the

8 POLLOWITZ v. WEAST

Parents did not inform MCPS that they were rejecting the proposed

IEP at the March 23, 1998 meeting because, despite expressing reser-

vations about the plan, they agreed to and signed it. Regarding written

notice, the district court ruled that the Parents’ June letter was not

notice of rejection of the proposed plan because the letter informed

the school board only "that the parents had procured Andrew’s place-

ment in the Lab School and request[ed] that [MCPS] ‘consider sup-

porting that placement.’" J.A. 231. The district court ruled that the

letter did "not inform [MCPS] that the IEP was rejected as unsuit-

able," but conveyed only that the Parents believed that placement in

private school would be even better for Andrew. Id. The district court

further determined that the June letter was untimely because it was

sent after Andrew was already enrolled in private school.

In their opening brief to this court, the Parents argue vigorously

that the June letter was timely—because they claim it preceded

Andrew’s "enrollment" in private school2—but they offer no argu-

ment challenging the ruling that the letter did not convey that the Par-

ents no longer considered the proposed IEP to be a legally adequate

plan.3 We therefore conclude that the Parents have waived this issue.

2

Specifically, the Parents argue that they did not "enroll" Andrew in

private school in early June when they signed the enrollment contract

and put down a $10,000 deposit on his education. They argue that he was

not "enrolled" in private school until he actually began physically attend-

ing the school, well after the June 29 letter.

3

Regarding the substance of the letter, the Parents make only the con-

clusory statement that the letter "provided MCPS with all of the neces-

sary and relevant information required" to satisfy the notice provisions.

Br. of Appellants at 30. In its brief, MCPS argues that the district court

correctly ruled that the June letter was substantively deficient. In addition

to the reason given by the district court, MCPS notes that the letter fails

to state the reasons behind the Parents’ decision to send Andrew to the

Lab School. In their reply brief, the Parents address the latter argument

but again provide no argument challenging the ruling that the letter was

not notice of rejection of the proposed IEP because it did not assert that

the plan was not legally adequate.

The Parents do argue that they provided oral notice of their rejection

of the proposed plan at the March 23, 1998 meeting when they approved

the plan but did so with reservations. That argument is wholly without

merit.

POLLOWITZ v. WEAST 9

See 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58

F.3d 988, 993 n.7 (4th Cir. 1995) (en banc) (deeming allegations of

error abandoned when appellant failed "to assert any reasons for, or

arguments supporting," them); Fed. R. App. P. 28(a)(9)(A) (providing

that an appellant’s opening brief must contain the "appellant’s conten-

tions and the reasons for them" (emphasis added)). Because of this

waiver, we do not address any other issue regarding the substance or

timeliness of the June letter.4

C.

The Parents further maintain that the district court erred in conclud-

ing that MCPS was prejudiced by any failure on their part to give

notice of their rejection of the proposed IEP. They also argue that

absent prejudice, failure to provide timely notice of the rejection of

the proposed IEP cannot bar a reimbursement claim. Assuming

arguendo that the district court erred in determining that MCPS was

prejudiced, we hold that MCPS was not required to demonstrate prej-

udice in order to bar the Parents’ claim.

Section 8-413(i) plainly states that a county "is not required to

reimburse the parent . . . for tuition or related costs associated with

the enrollment" when the parents fail to provide timely notice of their

rejection of the proposed plan. In the face of this clear statutory lan-

guage, the Parents note that this court has held that a showing of prej-

udice to the parents is required before the government will be

penalized for its failures to comply with IDEA notice provisions. See

Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir. 1997). In Gadsby,

the parents claimed that procedural irregularities in the IEP-

development process were so great that the irregularities actually con-

stituted the denial of a FAPE, and therefore entitled the parents to

reimbursement for their children’s private school education. See id.

4

The Parents contend that MCPS should be estopped from asserting

that they failed to timely reject the proposed plan because MCPS urged

the Parents not to reject the plan. No action by MCPS justifies estoppel,

however. MCPS attempted to persuade the Parents that the proposed plan

would serve Andrew’s interests and that they should not reject the plan

for that reason. MCPS did not urge them to accept the plan even if they

were convinced that it was legally inadequate.

10 POLLOWITZ v. WEAST

We held that the procedural irregularities did not constitute a denial

of a FAPE because they did not actually interfere with provision of

a FAPE. See id. Gadsby is of no assistance to the Parents here, how-

ever, since § 8-413(i) directly outlines the consequence of the Par-

ents’ failure to give timely notice of Andrew’s enrollment.

D.

The Parents next contend that their failure to provide timely notice

of their rejection of the proposed IEP is excused because MCPS failed

to inform them that such notice was required. We disagree.

Section 1412(a)(10)(C)(iv)(IV) of Title 20 of the United States

Code requires participating states to enact policies and procedures to

ensure that nonpublic school reimbursement claims will not be barred

because of parents’ failure to comply with the applicable notice provi-

sions when "the parents had not received notice, pursuant to [20

U.S.C.A. § 1415], of the notice requirement." The ALJ found that the

Parents received a copy of the applicable procedural safeguards at the

March 23, 1998 meeting, and the Parents do not challenge that deter-

mination. The Parents nevertheless argue that the IDEA required that

the Parents be afforded additional notification of the notice require-

ments after they sent their June letter, and that the meaning of "enroll"

in the applicable notice provisions was not adequately explained to

them. Our review of the Parents’ memorandum in opposition to

MCPS’s motion to dismiss and of the ALJ’s decision indicates that

these issues were never raised before the ALJ. We therefore will not

consider them. See United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 37 (1952) (explaining that "courts should not topple over

administrative decisions unless the administrative body not only has

erred but has erred against objection made at the time appropriate

under its practice").

E.

The Parents also argue that the ALJ and the district court improp-

erly placed upon them the burden of proof regarding certain issues

and that the district court failed to overturn irregularly made adminis-

trative findings. However, burden of proof and fact finding issues are

POLLOWITZ v. WEAST 11

of no consequence here because the parties agree regarding all mate-

rial facts.

F.

The Parents finally contend that their failure to provide notice

should not be considered because Supreme Court precedent mandates

that they be reimbursed for their private school tuition if they prove

that MCPS denied them a FAPE. See Florence County Sch. Dist.

Four v. Carter, 510 U.S. 7, 9-10 (1993); Sch. Comm. v. Dep’t of

Educ., 471 U.S. 359, 370-72 (1985). The two Supreme Court cases

cited by the Parents, however, predate the enactment of the notice

requirements5 and therefore do not authorize us to disregard the statu-

tory implications of the Parents’ procedural missteps.

III.

In sum, we conclude that the Parents have waived any challenge

to the conclusion of the district court that they failed to provide

MCPS with timely notice of their rejection of the proposed IEP, and

we affirm the order granting summary judgment in favor of MCPS.

AFFIRMED

5

The Maryland and federal notice provisions were adopted in October

1996 and June 1997 respectively. See Carnwath v. Bd. of Educ., 33 F.

Supp. 2d 431, 433 (D. Md. 1998).