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JB v. Wells-Ogunquit Community School District

United States District Court, District of Maine

May 31, 2014

JB and AB, individually and as parents and next friends of GB, a minor, Plaintiffs
v.
WELLS-OGUNQUIT COMMUNITY SCHOOL DISTRICT, Defendant

PLAINTIFF JB INDIVIDUALLY AND AS PARENT AND NEXT FRIEND OF GB, A MINOR REPRESENTED BY NICOLE L. BRADICK, RICHARD L. O'MEARA, STACEY D. NEUMANN

DEFENDANT WELLS-OGUNQUIT COMMUNITY SCHOOL DISTRICT REPRESENTED BY ERIC R. HERLAN, PETER C. FELMLY

RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

The plaintiffs, JB and AB, bring this appeal from the decision of a hearing officer of the Maine Department of Education on their challenge to the decision of the defendant to discontinue special education services to their child, GB. After careful review of the administrative record and the parties’ brief, I recommend that the court adopt the following findings of fact and conclusions of law, on the basis of which I recommend that the appeal be denied.

I. Proposed Findings of Fact

1. GB was born on November 16, 2001. Special Education Due Process Hearing (“Hearing Decision”), [B] v. Wells Ogunquit Community School District, No. 12.105H (Me. Dep’t of Educ. Oct. 26, 2012) at 2, Record at 635.

2. From kindergarten through fourth grade, GB attended Wells Elementary School. For the fifth grade, she attended Wells Junior High School. Id.

3. The parents referred GB for special education in June 2009, Id. at 3 (636).

4. GB received tutoring in the Lindamood Phoneme Processing System (“LiPS”) program at the Center for Communication beginning in August 2009; the school district was aware that she was receiving this private tutoring. Id.

5. GB was identified as eligible for special education and related services in October 2009 in the category of specific learning disability. Id. Her Individualized Education Program (“IEP”) called for specially designed instruction in reading to be provided by a special education teacher in the resource classroom one hour per day. Id.

6. The IEP created for GB on October 28, 2010, added an additional 45 minutes per day of specially designed instruction in writing and spelling with the special education teacher in the resource classroom to GB’s one hour of specially designed instruction in reading each day. Id. at 3-4 (636-37).

7. In December 2010, GB’s progress on her IEP goals was rated as satisfactory. Her fall 2010 NECAP test result in reading was a scaled score of 345, placing her in the proficient category. Id. at 4 (637).

8. In the fall of 2010, GB received a score of 200 in reading on the NWEA, placing her in the 75th percentile. Id. Her score in the spring of 2011 was 206, placing her in the 68th percentile. Id. at 5-6 (638-39).

9. At its February 2011 meeting, GB’s IEP team decided to reduce her time in the special education setting to 15 minutes per day of targeted, specially designed instruction. Id. at 5 (638).

10. The parents brought GB to Hyperion Learning Services in April 2011, where she could receive the same services as those provided by the Center for Communication at a lower cost. Id. at 6 (639). Victoria Papageorge, M.Ed., M.S., a certified special education consultant, began Hyperion Learning Services in 2002. Id.

11. At Hyperion Learning Services, GB has worked one-on-one with Robin Vaughn, who is trained in the LiPS and Seeing Stars programs. Id. Ms. Papageorge has consistently recommended two hours of instruction weekly for GB, but she has attended only one hour per week during school years. Id.

12. Beth Hutchins, GB’s special education teacher for the second and third grades, felt that GB was skilled enough to be entirely in the generalized education setting. She believed that GB would have performed adequately going into the fourth grade without any special education services. Id. at 7 (640).

13. GB’s NWEA reading score in the fall of her fourth grade year was 211, placing her in the 78th percentile. Id. at 8 (641). Her NECAP scaled score at approximately the same time was 452, placing her in the proficient category. Id.

14. On October 26, 2011, GB’s IEP team met to conduct her annual review. Id. Ms. Papageorge did not attend the meeting, and there is no indication that her report of her October 21, 2011, educational evaluation of GB was discussed. Id. In that evaluation, GB’s overall orthographic ability score was in the below average range, and her sight spelling score had dropped from the 50th percentile to the 2nd. Id.

15. The IEP team determined that GB had a specific learning disability in the area of reading, and that she was able to access the general curriculum but needed daily practice to make progress to become an accurate, fluent oral reader. Id. at 9 (642). The IEP called for GB to obtain five 10-minute sessions per week of specially designed instruction in English/language arts and for the special education teacher to provide consultation in the regular education setting for 10 minutes once a month. Id. Linda Logan, the fourth grade special education teacher, was familiar with the LiPS program and utilized similar decoding strategies with GB. Id.

16. The written notice following the IEP team meeting indicated that the Team decided to reduce the amount of services to GB because she was making progress in all subjects at the general education level and performing at grade level. Id. At the meeting, the father agreed with the change. Id. at 10 (643). The parents decided not to ask for an updated evaluation because of fear that GB’s eligibility would be discontinued if her test results were too good. Id.

17. The reduced level of services was adopted with the understanding that GB’s progress would be carefully monitored and a parent meeting would be held in December 2011. Id.

18. Ms. Papageorge conducted another educational evaluation of GB on November 1, 2011. Id. It is likely that she first presented the results of this evaluation to ...


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