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Ms. S. v. Regional School Unit 72

United States District Court, D. Maine

November 29, 2014

MS. S., individually and as parent and legal guardian of BS, Plaintiff
v.
REGIONAL SCHOOL UNIT 72, Defendant

For MS S, individually and as parent and legal guardian of BS, a minor, Plaintiff: RICHARD L. O'MEARA, STACEY D. NEUMANN, LEAD ATTORNEYS, MURRAY PLUMB & MURRAY, PORTLAND, ME.

For REGIONAL SCHOOL UNIT 72, Defendant: ERIC R. HERLAN, DRUMMOND WOODSUM, PORTLAND, ME.

RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

John H. Rich III, United States Magistrate Judge.

The plaintiff parent appeals from a decision of a Maine Department of Education (" MDOE") hearing officer denying her challenges to decisions of the defendant, Regional School Unit 72, with respect to her son, BS, and his eligibility for services under the Individuals with Disabilities Education Act (" IDEA"), 20 U.S.C. § 1400 et seq., and Maine's laws regarding education of exceptional students, 20-A M.R.S.A. § 7001 et seq . The plaintiff asks this court to reverse the hearing officer's decision and enter judgment in her favor, requiring the defendant to reimburse her for costs incurred in placing BS at the Eagleton School, a private school in Massachusetts, and finding that the defendant wrongly failed to provide BS with special education services in the three years preceding his time at the Massachusetts school. Plaintiff's Memorandum of Law (" Plaintiff's Memorandum") (ECF No. 22) at 45. After careful review of the record and the memoranda of the parties, I propose that the court adopt the following findings of fact and conclusions of law, on the basis of which I recommend that judgment be entered in favor of the defendant.

I. Proposed Findings of Fact

Ms. S. adopted BS from Vietnam in 1995 when he was ten months old. Order [After Administrative Hearing], Record Volume XVI at 3654 (" R. V. XVI at 3654"). BS initially lived in Rumford and received services for developmental delays, particularly in the area of speech-language skills. Id. In kindergarten, his education was government by an Individualized Education Program (" IEP") issued to him as a student with speech-language impairment. Id.

The family moved to Fryeburg in November 2001. Id. BS arrived at the Snow School with the same IEP. Id. at 3654-55. During his second-grade year, the school changed BS's eligibility category to Other Health Impairment. Id. at 3655. The plaintiff began community-based counseling services for BS at around this time. Id. During his third-grade year, the school dismissed BS from special education services. Id.

During his fourth-grade year, the school re-identified BS as eligible for special education and related services under the category of a speech and language disability. Id. During fifth grade, BS received special education services all year. Id. For his sixth-grade year, BS moved to a different school, where the plaintiff is a teacher. Id. He continued to be eligible for special education services as a student with speech-language impairment. Id.

BS received IEP services for most of his seventh-grade year. Id. at 3656. After conducting further testing in the early spring of 2008, it was determined that BS no longer met the criteria as a student with a speech-language impairment, and he was dismissed from special education. Id. In the spring of 2009, the plaintiff sought a private psychological evaluation with Dr. Michael Broderick in Portland. Id. The plaintiff referred BS for consideration of his special education needs on May 14, 2009, based on Dr. Broderick's report. Id. She listed BS's suspected areas of disability as " ADHD, language, OHI, social." Id.

BS enrolled at Fryeburg Academy beginning in his ninth-grade year. Id. Fryeburg Academy is the contract school for high school students residing in Regional School Unit No. 72. Id. At an IEP Team meeting held on June 2, 2009, the school determined that BS did not qualify for special education, stating that the evaluation showed no " adverse effect of his working memory with his academics." Id.

BS was provided with a 504 Plan in June 2009 in an attempt to address his " core receptive and expressive" language deficits with classroom accommodations. Id. at 3657. BS was placed in the " Transition Program" at Fryeburg Academy, with a 504 Plan for ninth grade that provided arrangements for oral presentations; permission to leave class to speak to a designated person; and an allowance to provide delayed responses. Id. For the tenth grade, BS was provided with a normal schedule of college-prep courses. Id.

The plaintiff made another referral for IDEA evaluation on January 21, 2011. Id. The school had Nancy Smith-Jewell, Ph.D., evaluate BS during March and April 2011. Id. Dr. Smith-Jewel noted significant concerns with verbal comprehension and working memory, and could not calculate a full-scale IQ. Id. at 3657-58. She also noted that " the picture painted by [Ms. S.] of a boy in psychological distress is not a perception shared across his teachers and administrators . . . [BS] is not demonstrating significant behavioral or emotional challenges within the school setting." Id. at 3658. She concluded that BS'S ability to interact socially with his peers in a meaningful way was affected by " significant language issues, " but that it " does not appear that his school based behavioral needs necessitate a residential placement at this time." Id.

The school's speech and language pathologist conducted a speech-language assessment of BS on April 15, 2011. Id. She concluded that although BS's academic grades were " within average, " his " overall scores are severely below his peers." Id. She reported that teachers " have noted his difficulty with expressing his thoughts and needs in class." Id. At his IEP meeting on May 4, 2011, BS was identified as eligible for IDEA services in the categories of speech-language impairment and specific learning impairment. Id. at 3658-59.

The school's proposed IEP for BS, to be implemented at Fryeburg Academy, included 45 minutes per week of speech-language therapy and four 45-minute sessions per week of special education services in the Academy's Learning Center. Id. at 3659. Classroom accommodations and supports included obtaining additional help outside the classroom, extra time to respond to oral questions, assistance with processing discussion of difficulties, and access to the Learning Center to complete work. Id. It did not include any extended school year services. Id.

The plaintiff engaged the school's speech and language pathologist for private summer speech and language services in 2011. Id. An assessment of BS conducted by Sweetser on June 20, 2011, listed his primary diagnosis as Autistic Disorder, with secondary diagnoses of Mixed Receptive and Expressive Language Disorder and Depressive Disorder NOS. Id. BS began to receive Home and Community Treatment services through Kerry Zabicki, LCPC, for 4-6 hours per week at his home. Id. at 3659-60.

An IEP Team meeting was held on September 8, 2011, at the request of the plaintiff, to review information from the Sweetser assessment and diagnosis and information on BS's summer programming and plan for the upcoming school year. Id. at 3660. The Team did not change the IEP but did require additional reporting between home and school on the social scripts during BS's speech and language sessions. Id. BS's eleventh-grade academic schedule included several vocational level courses. Id.

BS's speech and language services provider worked with him for 45 minutes per week, including work on his social skills goals. Id. She also provided consultation services with other staff, which involved regular communication with the plaintiff and other team members. Id. She provided consulting services more frequently than the one time per month for 15 minutes called for in the IEP. Id. at 3661.

BS's special education teacher felt that he was benefitting from the program in the fall of 2011. Id. She testified that BS was more involved with student activities, was expressing himself to teachers, talking more, and " starting to come out of [his] shell." Id. BS's IEP Progress Report dated October 28, 2011, indicated that he had achieved " limited progress, " and his grades were all in the C range or above. Id.

In late October 2011, the special education teacher noticed that BS was missing some of his classes with her. Id. at 3662. On November 2, 2011, she sent an email to the plaintiff noting that BS had become friends with another student and that she was " hoping he is not following that student's lead." Id. On November 4, 2011, the plaintiff notified the District's special education director that she would be keeping BS at home due to concerns about bullying and BS's safety at school. Id.

BS's IEP team met on November 9, 2011, to address the plaintiff's safety concerns. Id. The written notice of the meeting indicates that the plaintiff requested that BS receive group-based instruction in social skills. Id. The team did not address this request. Id. The school's special education coordinator stated that the psychological services provider was working with students individually for scheduling reasons. Id. The parties later agreed that BS's IEP should be enhanced to include escort by an educational technician beginning on November 14, 2011, " in all classes and in between classes." Id. at 3663. The school agreed to add a behavior plan to the IEP and to have BS meet daily with his advisor. Id.

On November 10, 2011, BS left the school after meeting with his special education teacher and the assistant principal without telling anyone. Id. at 3664. On November 15, BS was found sleeping in the Academy's " dungeon" when he did not meet his escort at the appointed time. Id. The educational technician assigned to escort BS agreed, at his request, to maintain a moderate distance between herself and him to minimize his embarrassment. Id. at 3664-65. On December 7, 2011, she and BS had arranged to meet after his final class before lunch, but he left ahead of her and walked away at a speed that did not allow her to keep up. Id. The technician went to the location where BS was due to go at lunch time, but BS did not show up. Id.

The technician found BS waiting for her at his next class after lunch. Id. She did not tell anyone that he had eloped. Id. BS eloped on each of the following two days while being escorted by the technician. Id.

On December 14, 2011, it was determined that BS had stolen sneakers from one of the Academy dormitories during his elopement on December 7. Id. The Academy's Judicial Board ultimately determine to expel BS from the Academy due to this theft. Id. On January 6, 2012, the District held an IEP team meeting to determine whether the theft of the sneakers by BS was a manifestation of his disability. Id. at 3666. The team concluded that it was not. Id. At this meeting, the team ordered tutoring for BS starting on January 18, 2012, for 2.5 hours a day. Id. The school did not provide educational services to BS between December 14, 2011, and January 18, 2012. Id.

The plaintiff disagreed with the manifestation decision but decided not to seek readmission of BS. Id. At an IEP team meeting held on February 2, 2012, the plaintiff objected to the abbreviated day tutorial schedule, and the written notice for this meeting notes that " [t]eam members all agreed that [BS] required a full-day program." Id. The discussion at this meeting centered on alternative educational programs and possible schools for placement. Id. at 3667. The REAL School was identified as a possible placement for BS. Id.

On February 10, 2012, the director of the REAL School informed the director of special education for the defendant that the REAL School was willing to accept BS as a student. Id. The plaintiff and BS looked at a variety of other schools before agreeing to placement at the REAL School starting on February 27, 2012. Id. The plaintiff understood that the REAL School program was provided in a shortened day format and expressed concern about the shorter day. Id.

BS began Section 28 rehabilitation services at home on February 27, 2012. Id. These services were provided by the Maine Department of Health and Human Services (" DHHS") after BS returned home, from about 4:15 p.m. to 7:00 p.m. Id. at 3668.

The REAL School is a state-licensed educational program for special or regular education students in grades 7-12, located in Falmouth, Maine. Id. It serves disabled and non-disabled students primarily from the Windham/Raymond school district. Id. The REAL School is a " project-based" learning center, where students are taught in both traditional and interdisciplinary settings in the community. Id. The typical REAL School student has had a difficult time in a traditional school setting. Id. REAL School students attend school for 4.5 hours per day and also participate in extended outdoor adventures. Id.

BS's speech and language services provider continued to provide speech therapy to BS while he attended the REAL School, working with him from 7:30 to 8:00 a.m. one day per week. Id. This was reflected in BS's IEP. Id.

On March 30, 2012, the IEP Team met to discuss BS" s placement at the REAL School. Id. The plaintiff wanted BS to attend full-day school or tutoring. Id. The school declined this request, noting that the REAL School schedule " addresses student[s'] needs throughout the[] day" in a way that is different from traditional schools where students spend time in lunch, study halls, and passing time between classes. Id. at 3668-69. The students' outdoor trips are not reflected in the 4.5 hours per day of class time. Id. at 3669. The IEP team did not address ESY services for BS at this meeting. Id.

As a result of the March 30 meeting, the IEP team decided to continue BS's placement at the REAL School, to keep his current goals, and to add goals with regard to his social behaviors and transition planning. Id. BS found a sense of comfort and safety at the REAL School. Id. The REAL School conducted a Functional Behavior Assessment and prepared a Positive Behavior Support Plan for BS that was reviewed by the IEP team at the meeting held on March 30, 2012. Id. BS's REAL School report card issued on June 19, 2012, indicated grades in the mid 90s for both the third and fourth quarters, and a passing mark for his " adventure based" programming. Id. at 3670.

The REAL School's proposal for BS's summer program consisted of 9 hours of social work services and three days of adventure programming. Id. The social work services did not take place, but BS met with his special education teacher and attended two summer kayak trips, one of which involved another student. Id. at 3670-71. In the summer of 2012, Dr. Slap-Shelton issued a neuropsychological report on findings from evaluations of BS conducted between March 26 and July 21, 2012. Id. at 3671. The evaluation was performed at the request of BS's Sweetser case manager and was received by the school on or about August 15, 2012. Id.

Many of BS's scores were in the average range, with the exception of vocabulary, understanding directions, and fast paced, less structured memory testing. Id. Dr. Slap-Shelton found that BS met the criteria for a diagnosis of autism. Id. at 3672. Dr. Slap-Shelton considered BS to be " a candidate for therapeutic residential placement for adolescents with Autistic Disorder and other developmental disorders." Id. at 3672-73. In August 2012, BS was evaluated for auditory processing deficits, and the examiner concluded that BS had an integration deficit that adversely affected his auditory processing of language. Id. at 3673.

At the IEP Team meeting on August 27, 2012, BS stated that he rated the REAL School as " perfect." Id. The plaintiff requested a compensatory placement, reiterating her concerns about the abbreviated academic day and the long commuting time for BS. Id. The Team was unable to complete discussion and expressed a need to reconvene as neither Dr. Slap-Shelton nor Dr. Sheckart, who as hired by the school to conduct additional testing of BS, were able to attend. Id.

At the follow-up IEP Team meeting held on September 10, 2012, the team reviewed the recent evaluation reports. Id. Several concerns were raised about Dr. Slap-Shelton's assessment. Id. While there was no dispute about identifying BS as a student with multiple disabilities, the team was unable to reach agreement on the identification of autism. Id. at 3673-74. Both the plaintiff and the doctor who diagnosed auditory processing deficits requested increased speech-language services. Id. at 3674. The plaintiff requested residential placement. Id. Changes were made in the transportation to reduce BS's drive time to the REAL School. Id. The Written Notice from this meeting indicated that BS would be assessed by Dr. Sheckart and would be entitled to attend a fifth high school year. Id.

Dr. Sheckart conducted several tests of BS on September 18, 2012. Id. at 3674-75. He reported that BS had the capacity for organization, insight, and flexibility and that interaction of the processes of thinking with social interactions created pressure points for him. Id. at 3675. Dr. Sheckart was not able to opine on the diagnosis of autism. Id. at 3676. He testified that a residential placement was unnecessary, and that BS had demonstrated the ability to succeed within the public school framework. Id. He did not believe it would be appropriate to place BS at a boys-only residential facility. Id.

BS obtained the following grades at the REAL School during the 2012-13 year: English/Language Arts, 98; Math, 98; Science, 98; Social Studies, 95; integrated service learning, P; and adventure-based learning/PE, P. Id. at 3677. In progress notes date October 31, 2012, BS's special education teacher noted that BS demonstrated more effective strategies for building and maintaining friendships, participated in discussions and activities, and completed all classroom assignments. Id. at 3677-78.

On October 10, 2012, the plaintiff was formally appointed as BS's guardian under Maine law. Id. at 3678. She provided the school with a letter dated October 16, 2012, explaining her decision to place BS at the Eagleton School. Id. She wrote that she was rejecting " as inappropriate the IEP and placement offered to [BS] for the 2012-2013 school year" and stated that BS was entitled to compensatory services for the past failure of the school to provide BS with a free appropriate public education. Id. The school denied her request for reimbursement of the cost of the Eagleton program. Id.

Dr. Sheckart issued a follow-up report that relied solely on feedback from BS's REAL School teachers. Id. The report noted ongoing concerns about BS's development and maintenance of interpersonal relationships with peers outside of the educational environment and adult supervision, and that he was engaged and learning as a willing and capable student. Id. at 3678-79. BS had seven sessions of direct speech therapy during this school year. Id. at 3679. In the November 1, 2012, IEP Team meeting, the school's speech and language pathologist noted that she saw a huge difference in BS after a trip to Florida with the REAL School and that he would have continued to benefit from staying at the REAL School. Id. The team reviewed the Sheckart report and denied the plaintiff's request for reimbursement of the cost of the Eagleton program. Id.

BS began his programming at Eagleton on November 5, 2012. Id. at 3680. He participated in a full-time, 24/7 residential program, with instruction in academics, social skills, and activities of daily living, as well as counseling and therapeutic interventions. Id. The Eagleton School serves approximately 60 male students, age 11 and up, with a variety of disabilities. Id. Students are grouped by ability and age. Id. BS did well at Eagleton and blossomed socially. Id. Eagleton's education director felt that BS was ready to transition back to the REAL School in the fall of 2013, ...


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