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Doe v. Cape Elizabeth School Department

United States District Court, D. Maine

December 29, 2014

MR. and MRS. DOE, individually and as parents of JANE DOE, a minor, Plaintiffs,
v.
CAPE ELIZABETH SCHOOL DEPARTMENT, Defendant.

ORDER ON PLAINTIFFS' APPEAL OF THE ADMINISTRATIVE HEARING OFFICER'S DECISION

JON D. LEVY, District Judge.

In this action, the plaintiffs, Mr. and Mrs. Doe ("Jane's parents" or "the Does"), request that the court vacate a Due Process Hearing Officer's decision under the administrative procedures of the Individuals with Disabilities in Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1415(i)(2). For the reasons stated below, I find that the Hearing Officer's decision should be affirmed.

I. FACTUAL BACKGROUND

After careful review of the hearing record, I adopt the facts that are set forth in detail in the Due Process Hearing Officer's decision, dated October 15, 2013, see R. 152-175, and which are summarized here.

The Does bring this appeal on behalf of their fifteen year-old daughter, "Jane, " who is in the tenth grade at Cape Elizabeth High School and who has received special education services related to her reading skills for most of her childhood. ECF No. 26 at 2; R. 153. In Jane's third grade year, a school district psychologist, Dr. Alina Perez-Smith, evaluated Jane and diagnosed her with a reading disorder, describing her abilities as "typical of dyslexic individuals." R. 154. Shortly thereafter, Jane's IEP Team concluded that Jane qualified as a student with a disability under the IDEA. R. 155.

In December 2012, the defendant, Cape Elizabeth School Department ("Cape Elizabeth" or "the school district") conducted a triennial reevaluation of Jane which consisted of a psychological evaluation performed by Laura Manuel, a school psychologist; an academic evaluation performed by Tammy Thatcher, a special education teacher; and interviews with Jane's teachers and parents. R. 164, 510. The results of Manuel's psychological evaluation and Thatcher's academic evaluation showed that Jane achieved "average or higher scores" on a battery of tests, with one exception: Jane scored in the "low average" range of the "Rapid Naming Composite" portion of the Comprehensive Test of Phonological Processing ("CTOPP")."[1] R. 510.

Jane's IEP Team gathered in January 2013 to review the results of the previous month's triennial reevaluation. In addition to the results of the psychological and academic evaluations administered by Manuel and Thatcher, the IEP Team reviewed Jane's classroom progress and performance; the results of her most recent 2012 NWEA and 2011 NECAP tests, state-mandated standardized tests on which Jane met or exceeded grade level expectations for both reading and math; and input from Jane's parents and teachers. R. 509-10. The IEP Team also noted that Jane was receiving "A" grades in all of her classes. R. 166.

Using the Maine Department of Education Learning Disability Evaluation Report ("LD Document"), and with the above factors in mind, the IEP Team concluded that Jane no longer qualified as a student with a learning disability as defined by the Maine Unified Special Education Regulation ("MUSER"), ME ADC 05-071, Ch. 101, §§ VII.2.L(2)(a) and VII.2.L(2)(c) (2014). R. 504-505 (LD Document dated January 3, 2013). Jane's parents disagreed with this conclusion, and filed a due process complaint, resulting in a settlement agreement whereby Jane was allowed to retain her IDEA eligibility while the Does sought and obtained private academic and psychological evaluations. R. 167.

In February 2013, the Does retained Victoria Papageorge, an educational consultant and evaluator, to perform a private academic evaluation of Jane, and also retained Richard Doiron, Ph.D., a clinical neuropsychologist and licensed school psychologist, to perform a private psychological evaluation. R. 167-68. Papageorge administered many of the same academic tests that Cape Elizabeth had administered during Jane's triennial review, with Jane scoring noticeably lower on three of them: either below average or "low average" on the TOWRE-2, WRMT-III, and the GORT-5.[2] Id. Papageorge also administered the Symbol Imagery Test, which measures accuracy and efficiency in visual processing, on which Jane scored in the fifth percentile. Id. Papageorge concluded that Jane should still qualify for special education services and later testified at the Due Process Hearing (the "Hearing") that Jane demonstrated continued weaknesses with phonological processing, visual processing, and orthography, and required intensive remediation in reading fluency. R. 168, R. 1201-04.

On Dr. Doiron's psychological evaluation, Jane scored in the average range to high average on most measures, with the exception of tests designed to measure "pseudoword decoding, " oral reading fluency, spelling, and reading rate.[3] R. 168-69.

In March 2013, Papageorge and Doiron completed their evaluations. Before Doiron issued his report, Papageorge contacted Doiron and asked him to administer another test to Jane, the RAN/RAS. R. 170. Papageorge could not administer the test herself because she was not licensed to do so, and wrote to Doiron telling him that "if we don't have at least 2 scores of 85 or less or one of 78... the school district is not going to accept that [Jane] has a learning disability, although our tests indicate otherwise." Id. Although Doiron had already completed his evaluation and had never administered the RAN/RAS test before, Doiron agreed to administer it to Jane. Id. He told Papageorge that he hoped they would obtain the scores they needed so that Jane would be identified as having a learning disability. Id. Instead, Jane performed well on the RAN/RAS, achieving scores in the average range.[4] Id.

Doiron issued his final evaluation report in April 2013, in which he diagnosed Jane with reading disorder dyslexia; attention deficit hyperactivity disorder, predominantly inattentive type; and adjustment disorder with anxiety secondary to her dyslexia. Id. Doiron's report made no mention of the fact that he had administered the RAN/RAS to Jane, or her scores. Id. Like Papageorge, he recommended specialized instruction in the area of reading fluency. R. 170-71.

Jane's IEP Team reconvened in May 2013 to review the competing public and private psychological and academic evaluations of Jane. R. 171. As in their January meeting, the IEP Team also discussed Jane's classroom progress and performance; the results of her most recent 2012 NWEA and 2011 NECAP tests, on which she met or exceeded grade level expectations for both reading and math; and input from Jane's parents and teachers. R. 1170-1175. The IEP Team memorialized its deliberations in a document called the "Written Notice, " a copy of which was later sent to the Does. Id.

According to the Written Notice, the IEP Team heard presentations by Papageorge and Doiron in which they summarized the results of their respective academic and psychological evaluations. R. 1171. Doiron stated his opinion that Jane is a student with a dyslexic profile who "developmentally can't process what she needs to academically at her grade level." Id. He did not disclose to the IEP Team that he had administered the RAN/RAS to Jane the previous month, or that Jane had achieved scores primarily in the average range.[5] Id. Papageorge discussed Jane's performance on the Symbol Imagery Test, and stated her opinion that Jane required specialized reading instruction. Id. The Does argued that Jane had a processing disorder based upon her below-average performance on three tests: the Symbol Imagery Test, the Test of Orthographic Competence ("TOC"), and the CTOPP. R. 172.

Manuel, the school psychologist, criticized the test results relied upon by the Does, stating that out of the three tests they cited, only the CTOPP measured psychological processing. Id. She also observed that Jane achieved scores in the average to high average range on all of the subtests that constitute the CTOPP except for one score in the low average range. R. 1171. See also, R. 172. Manuel stated further that there was no empirical evidence that the Symbol Imagery Test was a valid or reliable measure of Jane's reading ability, leaving only the TOC and CTOPP as evidence of a possible processing disorder. Id. These tests were only two out of the 48 administered, however, and Manuel explained that "she would not make a decision [about whether Jane qualified as a student with a learning disability] based upon ...


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